Docstoc

DISCOVERY DISCOVERY

Document Sample
DISCOVERY DISCOVERY Powered By Docstoc
					                                        DISCOVERY
2) Purpose of Discovery
   The basic purpose of discovery is to take the “game” element out of trial preparation by
   enabling parties to obtain the evidence necessary to evaluate and resolve their disputes
   beforehand. 3/28/02: In common law, there was no provision for discovery, parties simply
   hoped to be able to prove their case on the information they had at hand. In common law
   countries, Discovery still does not exist.

3) Duty to Preserve Critical Evidence
   A litigant may be obligated to preserve what it knows, or reasonably should know, will be
   critical evidence in a pending action or one in the offing. William T. Thompson Co. v. General
   Nutrition Corp., 593 F. Supp. 1443 (CD Cal. 1984)

4) Duty to Preserve Critical Evidence
   P alleged that D illegally copied P’s computer accounting programs. It became clear in
   pre-litigation negotiations, and certainly by the time the action was filed and served, that the
   central issue in dispute related to the origin of the source code for D’s program. D nevertheless
   continued a practice of regularly destroying older versions of its source code as newer ones
   were developed, making it impossible to determine the original configuration. P moved to
   strike D’s answer and to enter D’s default. D argued that it was merely following its routine
   practice and that there had been no demand that it preserve code. How should the court rule?

5) Initial Disclosure
   Rule 26(a)(1) requires all parties, without waiting for a discovery request, to provide the
   following information which may be used to support its claims or defenses:
   (1) potential witnesses
   (2) damages
   (3) insurance
   Unless the court directs or the parties stipulate, the disclosure must take place within 10 days
   after the parties meet to prepare a discovery plan. [Rules have changed.]

6) Initial Disclosure
   Assume that Albert sues Boutwell in federal court. Albert’s complaint is similar to Standard
   Federal Form 9. Albert alleges that on a certain date in a certain location, Boutwell “negligently
   drove a motor vehicle against plaintiff who was then crossing said highway.” Albert also
   alleges that “as a result plaintiff was thrown down and had the plaintiff’s leg broken and was
   otherwise injured, was prevented from transacting business, suffered great pain of body and
   mind, and incurred expenses for medical attention and hospitalization” in the sum of $100,000.

7) Initial Disclosure - How each category of damages (medical and hospital expenses, loss of
   wages and pain and suffering) was calculated; Make available for inspection and copying the
   documents or other evidentiary material, not privileged or protected from disclosure, on which
   the calculation is based, e.g., hospital and medical bills; documentary basis of loss wages; any
   formula used to calculate pain and suffering.

8) Initial Disclosure
  Rule 26(a)(1) requires parties to disclose how they calculated “any category of damages.”
  Probably also applies to restitutionary claims involving money, as well.

9) MANDATORY DISCLOSURE
    New Rule 26(a)(1) no longer permits individual district courts to opt out of mandatory
     disclosure.
    The mandatory disclosures are due within 14 days of the Conference required by FRCP
     26(f).

10) SCOPE OF DISCLOSURE
     FORMER RULE
     Rule 26(a): “. . .disclose information relevant to disputed facts alleged with particularity in
        the pleadings.”
     NEW RULE
     Rules 26(a): Disclose only “. . .information that the disclosing party may use to support its
        claims or defenses.”
    [“particularity” was too broad, that was taken as all information, even that bad for your case,
    the bar thought was unfair, now it is for information that you think will support your claim or
    defense, bringing back the adversary system.]

11) Expert Witness Disclosure
     Later in the process
     Rule 26(a)(2) Expert Witnesses
     Evidence to be used at trial Rule 26(a)(3)
     Rule 26(f) Meet and Confer requirement
     Rule 26(d) bar to traditional discovery
     Controversial
     Rationale: to speed up the process

12) Plaintiff and Defendant Discovery: Depositions, Request to Produce, Interrogatories, Request
    for Admissions, Physical or Mental Examination

13) Only if these are relevant may they be used according to the new Rule 26.

14) The General Scope of Discovery
Rule 26(b)(1) allows the parties to discover any non-privileged matter “relevant to the claims or
  defenses of any party.”
“Relevant” is now limited to the “claims and defenses.” The former Rule which referred to the
  “subject matter” of the pending action, was broader.
       Old rule on “subject matter” was taken to be broader.

15) Relevant to Subject Matter
    Information is regarded as “relevant to claims or defenses” if it might reasonably assist a party
    in evaluating the case as pled, preparing for trial, that is obtain admissible evidence or
    facilitating settlement. Admissibility at trial is not required. TEST: Whether the information
    sought might reasonably lead to other evidence that would be admissible.
   Everything is tied to the case as plead. The pleadings define was information is available,
   with an exception.

16) New Rule on Scope of Discovery
 FORMER RULE - [Broad and Attorney Managed]
 FRCP 26(b): A party may conduct discovery into any matter not privileged, that is “relevant to
  the subject matter involved in the pending action.”
 NEW RULE
 FRCP 26(b): Discovery is confined to matters “relevant to the claim or defense of any party.”
  [Narrower & Attorney Managed]
 “For good cause, the court may order discovery of any matter relevant to the subject matter
  involved in the action.” [Broad but Court Managed]
  Between the parties, discovery is confined to the pleading, for more information on a new
  claim, court approval is needed.

17) Tension between Rules 8 & 26
       FRCP 8(a) “a short and plain statement of the claim”
       FRCP 8(b) defenses are to be “stat[ed] in short and plain terms”
       FRCP 26 (b)(1) “relevant to the claim or defense of any party”
       Claim must be precise and brief, but this limits discovery, so the more you plead, the
       more you discover. This is the tension of the rules, defendants make motions to strike
       or dismiss to limit plaintiff’s discovery.

18) RELEVANCE UMBRELLA - The degree of relevance of discovery information is higher
when it is closer in type, time or kind to the events of the claim or defense.
       Judge Ware’s rule, older information may not be admissible in evidence because it is
       nor relevant, but it may lead to evidence.

19) RELEVANCE UMBRELLA - Similar type of incident are related to a lesser degree, and Other
    incidents of the same type are related to a greater degree to the Claim or Defense are within the
    relevance umbrella.
    Judge Ware’s new rule Time and Kind of information.

20) RELEVANCE UMBRELLA - What is the Subject Matter?? Employer-Employee Relations,
Discrimination, Racial Discrimination, Conduct of a particular supervisor?
    Information is closed that is not relevant to the subject matter of the pleading.
    Information on sex discrimination is not related to information on race discrimination,
    and would likely need court approval, based upon a sufficient reason why it is relevant.

21) RELEVANCE UMBRELLA - Information relating to a Different Claim or Defense are
outside of the Relevance Umbrella and are not included in Discovery.
       Under the new rules of discovery, you can discovery information relevant to the
       claim, to discover information to the subject matter, you need court approval, you
       cannot discover information relevant only to a new a claim.

22) Scope of “relevance” for discovery
       FORMER
       In order to be discoverable, “information. . .need not be admissible at trial if the
        information sought appears reasonably calculated to lead to the discovery of admissible
        evidence.”
     NEW RULE -
     “Relevant information need not be admissible at trial if the discovery appears reasonably
        calculated to lead to the discovery of admissible evidence.”
    Purpose of change: to clarify that information must be relevant to be discoverable, even
    though inadmissible, and that discovery of relevant material is permitted if reasonably
    calculated to lead to the discovery of admissible evidence.
Still permits inadmissible information to be discovered, but it still must be relevant.

23) Lindberger v. General Motors - 56 F.R.D. 433

24) Lindberger v. General Motors - Plaintiff filed an action in US District Court for the WD of
    WIS. on the basis of diversity of citizenship against GM for personal injuries caused by
    defendant’s allegedly negligent manufacture of a loader. Plaintiff propounded interrogatory
    asking for any changes which the defendant had made in the design of the braking or warning
    system since the loader was first produced.

25) Lindberger v. General Motors
  Defendants refused to respond on the ground that the information was privileged and that it
     sought information which would not be admissible at trial.
  HELD: The information sought is relevant to the subject matter of the action because the
     feasibility of installing a better brake or warning system is relevant to liability.

26) Relevance v. Admissibility
 Assume that Able and Baker were in the vicinity of an auto accident that is the subject of a
    lawsuit by Pauline against Daniel. At Able’s deposition, Pauline’s attorney asks Abel: “Who
    did Baker say was at fault in the accident?”
 Pauline’s attorney expects that Abel will say that Baker said, “Did you see the way that Daniel
    ran that red light?” Daniel’s attorney objects to the question as calling for “rank inadmissible
    hearsay.” Is the question within the permissible scope of discovery?
    #1 is hearsay, so it is not admissible, but it is discoverable since it may lead to admissible
    information.

27) Relevant to Claims or Defenses
    Honda USA sues Chrysler for violation of the antitrust laws, claiming unfair pricing policies
    with regard to its subcompact automobiles. Honda seeks production under Rule 34 of all
    documents relating to the pricing of all Chrysler vehicles since 1975.
       The suit charges unfair on subcompacts, so all vehicles is too broad.

28) Privilege
 Parties may discover information which is relevant but not privileged

29) Privilege
   Request for privileged matter goes beyond the legitimate scope of information to be obtained
    during discovery.
   In federal question cases the types of privileges are governed by federal common law (as a
    practical matter federal courts borrow the privileges of the state in which is sits).

30) Privilege
  In diversity cases privileges are usually determined under the state law applicable to the case.
  However where discovery is sought from a nonparty witness who resides in another state,
  privileges are determined under the law of the state where the witness resides.

31) Privilege
  Allison sues Bixby for breach of contract. Allison sends interrogatories to Bixby asking him to
  state in detail the contents of all conversations he had about the requirements of the contract
  while it was being negotiated. Bixby had discussed the contract requirements with his attorney.
 Would Bixby be required to identify his attorney as a person with whom he had discuss the
  contract requirements?
 Would Bixby be required to disclose the contents of the conversation?
  Yes, he would to disclose the contact, but not the information itself. Attorneys keep logs of
  communication, but not of the communication itself.

32) Privilege
Types of privileges:
 Attorney-client. Cal Evid. Code 950
 Physician-patient. Cal Evid. Code 990
 Psychotherapist-patient. Cal Evid. Code 1010
 Self-incrimination. US Const. Amend V
 Spousal communications. Cal Evid. Code 980
 Clergy-penitent. Cal Evid. Code 1030
 Trade Secrets. Cal Evid. Code 1060
  Privity includes staff members also, regarding only the subject matter at hand.
  Some courts recognize a self-critical or peer-review analysis privilege-shield from
  discovery where companies evaluate the causes of accidents. These are privileged as
  public policy to help companies improve themselves.
  Also include official information privilege.

33) Hickman v. Taylor - 329 U.S. 495

34) Hickman v. Taylor - Work Product Privilege
 FACTS: A tug boat sank while towing a car float and five of the nine crewmen drowned. Tug
  owner retained an attorney for the inevitable litigation. The attorney took statements from
  survivors and other witnesses.
 ISSUE: Are the contents of statements made by witnesses to the attorney for a party
  investigating the accident privileged from discovery?

35) Hickman v. Taylor - Work Product Privilege
    2/7/1943: tug “J.M. Taylor sank in Philadelphia
   2/10/1943: tug owners and insurers retained attorney Fortenbaugh to defend them against
   potential lawsuits.
   3/3/1943: U. S. Steamboat Inspectors hearing. Testimony of the four survivors recorded and
   made available to interested parties.
   3/29/1943: Fortenbaugh privately interviewed and obtained signed statements from the
   survivors.
   3/30/1943: Fortenbaugh interviewed others believed to have relevant information and made a
   memoranda of what they told him.
   11/26/1943: USDC D. Penn. - Hickman v. Taylor -
           Damages under the Jones Act for death due to vessel being unseaworthy.
   11/26/1944: Pursuant to FRCP 33, Hickman propounded interrogatory to defendants: “State
   whether any statement of the members of the crews . . .” “Attach hereto exact copies of all
   such statements …”

36) Hickman v. Taylor - Work Product Privilege
       11/26/1944: Objection - Privileged!!
       The objection is overruled. The defendants are ordered to answer the Interrogatories and
       produce the documents.
       U.S. Court of Appeals 3rd Cir. - The decision of the District Court is reversed. The
       information is part of the “work product of the lawyer” and hence privileged from
       discovery.

37) Laws and Rules Regulating Appeals to the United States Supreme Court
    At common law, when a higher court wanted to review the decision of a lower court, public
    board or public officer, it would issue a writ of certiorari. The writ ordered them to send the
    record of the proceedings for review and decision whether it was according to law.
    28 USC 1254: “Cases in the courts of appeals may be reviewed by the Supreme Court by the
    following methods: (1) By writ of certiorari granted upon the petition of any party to any civil
    or criminal case, before or after rendition of judgment or decree”
    28 USC 2101(c): “….[A]ny writ of certiorari intended to bring any judgment or decree in a
    civil action, suit or proceeding before the Supreme Court for review shall be taken or applied
    for within ninety days after the entry of such judgment or decree.”

38) United States Supreme Court - Hickman v. Taylor - Work Product Privilege
       Certiorari granted to settle a question which has been decided in conflicting ways by the
       various circuits.
       Are witness statements taken by an attorney for a party after a lawsuit has been filed or the
       memoranda and mental impressions of the attorney about those statements privileged from
       discovery by opposing party?

39) United States Supreme Court - Hickman v. Taylor - Work Product Privilege
    RULE 34: REQUEST FOR PRODUCTION OF DOCUMENTS? No. Petitioner did not file a
       motion to compel production of documents under FRCP 34. Besides, such a motion could
       only be directed to a party and not to a party’s counsel.
   RULE 33: INTERROGATORIES? No. Rule 33, can be used to obtain information which is
       solely within the knowledge of an attorney, but not information prepared by the party’s
       attorney after the claim had arisen.
   RULE 26: ORAL DEPOSITION? No. Petitioner could have taken Fortenbaugh’s deposition
       and attempted to force him to produce the documents by use of a subpoena duces tecum
       under Rule 45, but he did not.
   But despite petitioner’s faulty choice of action, the District Court entered an order, apparently
   under Rule 34, commanding the tug owners and Fortenbaugh, as their agent and counsel, to
   produce the materials in question.* * *But under the circumstances we deem it unnecessary
   and unwise to rest our decision upon this procedural irregularity * * * The basic question at
   stake is whether any of those devices may be used to inquire into materials collected by an
   adverse party’s counsel in the course of preparation for possible litigation.

40) Hickman v. Taylor
 We agree, on course, that the deposition-discovery rules are to be accorded a broad and liberal
    treatment. Mutual knowledge of all the relevant facts gathered by both parties is essential to
    proper litigation.
 We also agree that the memoranda, statements and mental impressions fall outside the scope of
    the attorney-client privilege and hence are not protected from discovery on that basis.

41) Hickman v. Taylor
 However, we are dealing with an attempt to secure (1) the production of written statements of
    witnesses * * *
 Rule 30(b) gives the trial judge the requisite discretion to make a judgment whether discovery
    should be allowed as to the written statements secured from witnesses. But in the instant case
    there was no room for that discretion to operate in favor of the petitioner. No attempt was
    made to establish any reason by Fortenbaugh should be forced to produce the written
    statements.

42) Hickman v. Taylor
 But as to the oral statements made by witnesses to Fortenbaugh, whether presently in the form
  of his mental impressions or memoranda, we do not believe that any showing of necessity can
  be made under the circumstances of this case so as to justify production.

43) Hickman v. Taylor
 Petitioner’s counsel frankly admits that he wants the oral statements only to help prepare
  himself to examine witnesses and to make sure that he has overlooked nothing. That is
  insufficient under the circumstances to permit him an exception to the policy underlying the
  privacy of Fortenbaugh’s professional activities. If there would be rare situations justifying
  production of these matters, petitioner’s case in not of that type.

44) Hickman v. Taylor
 Condition: Material prepared in anticipation of litigation is privileged from discovery unless
  the party seeking discovery can show: (1) a substantial need for the material and (2) an inability
  to obtain equivalent material by other means.
45) Attorney Work Product
The “work product” privilege protects trial preparation materials which reveal an attorney’s
  strategy, intended lines of proof, evaluation of strengths and weaknesses and inferences drawn
  from interviews.
Unlike privileges, the protection for work product in not absolute. Only qualified protection is
  available i.e.., court may order disclosure under certain circumstances.

46) FRCP 26(b)(3)
 The rule makers incorporated the attorney work-product privilege into the Federal Rules of
  Civil Procedure.

47) Attorney Work Product
 What is the test for deciding if material is prepared in anticipation of litigation?

48) Attorney Work Product
  The Cosys Drug Company has received some complaints from physicians about apparent side
  effects from a sedative medication. Cosys quality control personnel begin an investigation of
  those complaints.
 Cosys conducts the investigations because in its experience, litigation is inevitable. Can it
  protect the investigative reports under the work-product privilege?

49) Attorney Work Product
  Allison calls her lawyer on her cellular phone immediately after an accident with Dexter, since
  she realizes that it may be important to get information right away for pursuing legal claims
  against Dexter. The lawyer has an investigator go out and take photographs of the scene of the
  accident immediately, including the positions of the cars, skid marks and the placement of the
  debris on the road. Dexter does not retain counsel until some time later, after the accident scene
  has been cleaned up.

50) Hickman v. Taylor
  In contrast, with respect to oral statements made by witnesses to the investigating attorney
  (whether presently in the form of the attorney’s mental impressions or memoranda), the
  Supreme Court held that no showing of necessity could be made to justify their production
  under the circumstances of the Hickman case. The Court reasoned that requiring lawyers to
  write out or repeat what witnesses have told them and to deliver those accounts to their
  adversaries would give rise to grave dangers of inaccuracy and trustworthiness.

51) The “Opinion Work-Product” Rule
 Although Rule 26(b)(3) preserves the option to seek work product, the rule specifically
  provides that material can never be obtained which contains the mental impressions,
  conclusions, opinions or legal theories of opposing counsel. This is the so-called “Opinion
  Work Product” rule under which the fruits of opposing counsel’s legal research and preparation
  for trial is absolutely protected from disclosure.

52) The “Opinion Work-Product” Rule
 The memorandum of an associate in the office of Allison’s attorney in which she analyzes the
  strength and weaknesses of Allison’s case;
 An opinion letter from one lawyer in the case to another concerning whether to settle

53) In camera Inspection
  Suppose an work product document contains both factual information which an opponent might
  need and opinions or other mental impressions of counsel:
 Redact
 The judge to review the document in camera and determine that only the opinion work product
    material has been taken out.

54) Rule Analysis
Rules 30 and 31: Depositions - Plaintiffs, Defendants and Third Parties
Rule 34: Request to Produce - Plaintiffs, Defendants and if Court approved - 3rd Parties
Rule 33: Interrogatories
Rule 36: Request for Admissions
Rule 35: Physical or Mental Examination by Court permission only.
       Interrogatories is a written question between the parties, within the scope of
       discovery, and are admissible within the scope of the rules.
       Disclosure early in the case, then deposition, and documents, and rule 45 subpoena
       for third parties (“bring the thing with you”), interrogatories.

55) Interrogatories
An interrogatory is a written question propounded by one party to another party, who must answer
  under oath and in writing. the question may relate to anything within the permissible scope of
  discovery and the answers are admissible to the extent permitted by the rules of evidence.

56) Interrogatories
  Please state the date, time, place and substance of every conversation you have had with regard
  to the accident which is the subject of this action, with any person from the time of the accident
  to the present including the names and addresses of each person present and what was said by
  each party to the conversation in chronological order.
  Objection!!! – burdensome, too broad, complex, compound.

57) Interrogatories
  Facts like the date and place of the accident. The dates, times, places and persons rendering
  medical treatment to the plaintiff;
  The names of persons who were present during an incident.
  The dates the plaintiff was out of work and things of that sort.
  Don’t waste time and interrogatories (limited now).

58) Zinsky v. N. Y. Cen. RR (N.D. Ohio 1964) 36 FRD 680; Text p. 769
 Plaintiff brought suit under the FELA alleging that his duties were in furtherance of interstate
  commerce. Defendant denied these allegations. Plaintiff sent an interrogatory: “At the time of
  the accident, was the plaintiff engaged in duties which were in furtherance of interstate
  commerce or which directly and substantially affected interstate commerce? OBJECTION!!!
59) Zinsky
 HELD: Objection sustained. The question improperly called for a legal analysis of one of the
  factual issues in the case. The assertion and discussion of legal theories, and the classification
  of facts in support thereof, should be by the lawyers at trial and in whatever pre-trial procedures
  the court may require.
 BUT SEE NEW 33(c).
  Interrogatories of legal analysis can be asked, although the court may still order it
  answered later after discovery or during the trial.

60) FRCP 33(c)
 An interrogatory otherwise proper is not necessarily objectionable merely because an answer to
  the interrogatory involves an opinion or contention that relates to fact or the application of law
  to fact, but the court may order that such an interrogatory need not be answered until after
  designated discovery has been completed or until a pre-trial conference or other later time.

61) Production of Documents & Things - Parties may be compelled to produce records or other
evidence in their possession or control in response to a Rule 34 Request for Production. A
response to a record for documents must be sworn under oath.

62) Production of Documents & Things
 Rule 34 applies to documents in any form in which records are kept.
 Electronic records
 Objects
 Entry on
  Rule 34 is limited from one party to another party.

63) DEPOSITIONS
A deposition is testimony taken before trial, under oath, subject to cross examination and
  preserved in writing. Under certain circumstances, deposition testimony may be admissible at
  trial. Depositions may include third parties - use Rule 45 subpoena to deposition a third
  party.

64) Rule 30(b) LIMITS ON DEPOSITIONS
 30(b)(1) has been amended to clarify that the general prohibition against instructions not the
  answer is not limited to a “party” but also extends to a “person.” This clarification prevents, for
  example, counsel to an unaffiliated witness from claiming the right to instruct the witness not to
  answer.

65) Rule 30(b) LIMITS ON DEPOSITIONS
 30(d)(2) imposes a presumptive time limit on each deposition – “one day of seven hours,”
  unless otherwise authorized by the court or stipulated by the parties.

66) PRECLUSION SANCTION EXPANDED
 Formerly, Rule 37(c)(1) provided a sanction of automatic preclusion of evidence, if
    information or materials should have been, but were not, disclosed pursuant to Rule 26(a).
   Rule 37(c)(1) was amended to expand the sanction of automatic preclusion of evidence to
    apply to information which should have been provided is response to formal discover.
   A party that without substantial justification fails . . To amend a prior response to discovery as
    required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence
    at a trial, at a hearing, or on a motion any witness or information not so disclosed.

67) DEPOSITIONS
The Federal Rules provide for two kinds of depositions: oral and upon written interrogatories.
Depositions are generally available as a matter of right--i.e., without leave of court--after an action
  is commenced. Rule 30(a)

68) DEPOSITIONS
Leave of court must be obtained if plaintiff seeks to take a deposition prior to the disclosure
  procedures set forth in Rule 26(b)(2).

69) Whose Deposition
A party may depose “any person, including a party.” The person to be deposed may be a natural
  person, a public or private corporation, a partnership or a governmental agency. Rule 30(a),
  (b)(6)

70) Notice Requirement
The party desiring to take a deposition must give reasonable written notice to every other party to
    the action. Rule 30(b)(1)
If another party notices the deposition of a witness who you also wish to depose, serve your own
    deposition notice for the same time and place. This prevents the party noticing the deposition
    from unilaterally cancelling.

71) Contents of Notice
 The date, time and place of taking the deposition
 The name and address of each person to be examined
 In of a nonparty and records required [subpoena duces tecum], designation of records required
 If a party, Rule 34 request for documents

72) Contents of Notice
 If the deponent is a corporation or other entity, the notice or subpoena must describe with
  “reasonable particularity” the matters on which questions will be asked. This permits the
  corporation to designate a person to testify on its behalf. Rule 30(b)(6)

73) Deposition of Nonparty
 The attendance of nonparty witnesses at deposition may be compelled only by service of a
  subpoena
 The subpoena may command the nonparty to produce books and records for inspection and
  copying
 The subpoena shall issue from the court for the district in which the deposition is to be taken

74) Deposition of Nonparty
 The subpoena may be issued by the court clerk of the district [may be issued in blank]
 Also may be issued by an attorney authorized to practice in the district where the action is
  pending or where the deposition is to be taken. Rule 45(a)(3)

75) Deposition of Nonparty
 Subpoena is invalid unless accompanied by witness fees for 1 day’s attendance and mileage as
  allowed by law [Statutory witness fee is currently $40 per day, plus mileage].

76) Deposition of Nonparty
 Failure to comply with a subpoena without adequate excuse is contempt of court.
 Contempt proceedings are instituted by filing a motion for an order to have the witness show
  cause why a contempt citation should not issue.
 A civil contempt trial


77) Less v. Taber Instrument Corp. - 53 F.R.D. 645 (W.D. N.Y. 1971); Text p. 787

78) Less v. Taber Instrument Corp. - Must Teledyne, Inc., a non-party foreign corporation doing
business in the forum judicial district served with a notice of corporate deposition and subpoena
command Singleton, Chairman and CEO, who was based in Los Angeles headquarters produce
Singleton for a deposition in New York?

80) Less v. Taber Instrument Corp. 30(b)(6)
  The Rules do not suggest that a different principle applies to discovery from a party corporation
  than applies to discovery from a non-party corporation . . .[However] the court does not choose
  to depart from the ordinary rules that a mere witness will not be required to leave his residence
  and business and travel great distances for the convenience of the parties and that the deposition
  of a corporation should be taken at its principal place of business.

80) Place of Deposition
 The place at which a deposition may be taken depends on whether the deponent is a party or a
  nonparty
     Nonparty--subpoena may be served at any place within the district of the court by which it is
      issued or at any place outside of the district that is within 100 miles of the place of the
      deposition

81) Place of Deposition
     Party witness--at any place. Normally a party’s deposition is taken in the district in which he
      or she resides or is employed or has a place of business. Often the parties stipulate to a
      convenient place

82) Deposition Officer
 The deposition must be conducted under the supervision of an officer authorized to administer
  oaths
 The most common practice is to designate someone who is a notary and certified shorthand
  reporter (CSR)
83) Requests for Admission
  A request for admission is the procedure where one party can force another party to admit or
  deny the truth of any relevant fact or the genuineness of any relevant document. Late in the
  litigation to clarify information, hope the other side admits it so you don’t have to prove it
  in trial. Rule 30(d)(3)? If a party fails to admit something you prove by discovery, you can
  collect costs.

84) Right to Discovery
Most discovery procedures are available as a matter of right. Ordinarily, no showing of “good
  cause” or court order is required to take a deposition to serve discovery request. However, the
  frequency and extent of use of discovery may be limited by the court on motion of a party or on
  its own motion.

85) Discovery Requiring Prior Court Order
 Physical or mental exams. Rule 35(a)
 To preserve evidence before a lawsuit is filed. Rule 27
 Discovery by plaintiff during disclosure period. Rule 30(a)(2)
 Discovery beyond established limits e.g. number of interrogatories


86) Discovery Requiring Prior Court Order
 Substantive limitations e.g. defendant’s financial condition in diversity case
 Discovery in class actions
 Discovery related to sanction requests


87) Physical & Mental Examinations
Rule 35 sets forth the procedure for obtaining an examination of a person who mental or physical
  condition (or blood group) is in controversy in the action.

88) Schlagenhauf v. Holder -379 U.S. 104 (1964)

89) Plaintiffs - (bus passengers) v. Greyhound, Contract Carrier (truck owner), McCorkhill (truck
driver), National Lead (trailer owner)
National Lead and Contract Carrier Request that court order Schlangenhauf submit to mental &
physical examination. No suit against Schlagenhauf at the time National Lead made the
request.

90) Laws and Rules Regulating Appeals
 Writ of mandamus: At common law, upon a clear and indisputable showing that a lower court
    has usurped power, disregarded a duty to exercise power or disregarded a legal duty a higher
    court would issue a writ of mandamus to the lower court to show cause why it should not be
    required to comply with the law. A petition for a writ of mandamus could be requested
    interlocutorily (before a final judgment).
   28 USC 1651(a): The Supreme Court and all courts established by Act of Congress may issue
    all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the
    usages and principles of law.

91) U.S. Court of Appeals, 7th Cir. - Schlagenhauf (bus driver) v. Holder, District Judge.
Petition for writ of mandamus to order Judge Holder to set aside the order requiring mental and
physical examination.

92) Schlagenhauf v. Holder
 Rule 35 applies to defendants
 Rule 35 only requires that the person to be examined be a party to the “action,” not that he be an
  opposing party vis-a-vis the movant.

93) Schlagenhauf v. Holder
 As to good cause however, nothing in the pleadings or affidavit would afford a basis for a belief
  that Schlagenhauf was suffering from a mental or neurological illness warranting wide-ranging
  psychiatric or neurological examinations or internal medical exams.
 Remanded to decide if good cause for vision exam.

94) Compelling Discovery
 Rule 37(a)(2)
 Meet and confer and certification requirement
 Sanctions
     Facts be taken as established
     Claim or defense barred
     Use of evidence barred (See e.g. Doorley p. 803)
     Dismissal or judgment (See e.g. Hart p. 801)
     Attorneys fees (See e.g. Sellon v. Smith p. 799)

95) Protective Order
 Protection of the court invoked by the party against whom the discovery is sought against
  harassment
 Rule 26(c)
 Power to limit the scope, means or access to discovery upon a showing of good cause
 Meet, confer and certification requirement