Typical Case

1
Typical Case

• ASAP, hold R26(f) conference file joint report
  w/in 14 days. See 37(g)
• If disagreements, lay out for court to decide
• Earliest discovery can start is after here. 26(d)
• More than 21 days later, hold 16(a)
  conference/submit 16(b) draft SO
• The R16 SO governs
• Lay out disagreements

• W/in 14 days of R16 conference, exchange initial
  disclosures
• No excuses to doing so unless made _at_ conference
  or in report.
• Saw scope last week

2
Discovery What Well Cover

• Forms
• RFP
• RFA
• Interogs
• Depos written Q
• Physical exams
• Oral Depos
• Usage
• In MSJ
• At trial

• Limitations
• Timing
• On whom can be used
• Relevancy
• Privilege (tiny bit)
• WP (little bit)
• Experts
• Privacy
• 26(b)(2)
• 26(g)(2)(C)
• 26(c)
• Each form has own limits
• Abuse
• 37, 26(g) (a little bit)

3
RFPs R34 (421-24)

• Parties only
• Nonparty R45(a) subpoena duces tecum
• Scope
• Relevance R26
• See all other limitations (above)
• No limit, unless agreement or local rule

• Process
• Serve. See 26(g)(2)
• Within 30 days or as agreed (R29)
• Recipient serves signed response
• Objections 26(g)(2)
• Production
• Documents or inspection
• Responsive documents w/in possession custody or
  control
• As kept or by category
• Bates stamp each page
• Requesting party
• If disagrees with objection(s), confer.
• If cant agree, file serve motion to compel
  37(a)(2)(B)
• See 37(a)(4)
• If order issued, but then party still violates.
  37(b)

4
Problems (423)

• 2. How can ? get docs from Elaines Garage?

• 1a. Must ? turn over in initial disclosures
  photo showing ? wasnt hurt?
• 1b. What if he doesnt?
• 1c. Must ? turn it over in response to RFP for
  documents relating to the incident?
• 1d. Can ? get sanctions for its tardy
  production?

5
Interrogatories (R33 418-20)

• Parties only
• Scope
• Relevance R26
• See all other limitations (above)
• Limited to 25 absent agreement or court order.

• Process (R33(b))
• Serve requests. See 26(g)(2)
• Within 30 days or as agreed (R29)
• Receiving party
• Objections 26(g)(2) 26(b)(4)
• Response
• Sworn, signed answers. 37(b) or
• Produce documents. 33(d)
• Requesting party
• If disagrees with objection(s), confer.
• If cant agree, file serve motion to compel
  37(a)(2)(B)
• See 37(a)(4), 37(d)
• If order issued, but then party still violates.
  37(b)

6
Problems (420)

• 1a. Can she get store to answer interrogs? If
  not, how can she?
• 1b. Can she compel Mfg. to answer?

• Suppose you are served an interrogatory and dont
  know the answer. What amount of inquiry do you
  have to do before you and your client sign and
  serve your answers?
• Does that same obligation hold true with RFAs?
  RFPs?

7
RFAs (R36)

• Parties only
• Scope
• Relevance R26
• See all other limitations (above)
• No limit, unless agreement or local rule

• Process
• Serve. See 26(g)(2)
• Within 30 days or as agreed (R29)
• Recipient serves signed response
• Objections 26(g)(2)
• Response
• Investigation required. 36(a)
• Admitted in this suit unless denied. 36(b)
• Object, admit, deny, or explain why cant admit
  or deny. 36(a)
• Requesting party
• If disagrees with objection(s), confer.
• If cant agree, file serve motion to overrule
  objection or provide answer. 36(a)

8
Problems (424)

• What do you do if youre asked to admit
  something, and you dont know if its true, or
  not?
• What if you do what youre required to do in
  terms of investigation, but still dont know
  whether to admit or deny?

• 1. Can ? ask ? to admit there was a contract,
  and ? breached it?
• 2. If a boy says its true, must you admit it?
• 3. If ? admits it in one suit, and another
  person sues in another suit, does the admission
  bind ? in that other suit?

9
Oral Depositions (R30 418-20)

• Process
• Serve notice. 30(b)(1). See 26(g)(2)
• Why subpoena helpful nonparty? 30(g)(2)
• Can include RFP. 30(b)(5)
• Entity to be deposed? 30(b)(6)
• Parties attend depo
• If noticing party doesnt show up. 30(g).
• If nonparty not subpoenaed doesnt show up.
  30(g)(2)
• If party-witness doesnt show up, 37(d)
• Court reporter types everything up.
• Witness sworn
• Direct examination by noticing party
• Objections/Instructions 30(d)(1)
• Other parties cross.
• Objections/Instructions 30(d)(1)
• If during depo any party or deponent thinks other
  parties harassed or acted in bad faith toward
  witness, see 30(d)(4).

• Parties only
• R45 nonparties
• Scope
• Relevance R26
• See all other limitations (above)
• Others
• 10 total
• 1 per person
• 1 day/7 hrs.

10
Depo Process Continued

• If any party thinks other parties frustrated fair
  examination, see 30(d)(3).
• E.g., speaking objections or improper
  instructions not to answer

• Court reporter prints out gets a copy of depo
  to witness.
• Witness reviews, corrects, and signs. 30(e)

11
Problems (420)

• 3. What do you do if privilege was claimed, and
  an instruction not to answer given and followed,
  to questions that did not inquire into privileged
  matters?

• 2a. Can a 30(b)(6) witness be instructed not to
  answer questions outside scope of notice?
• 2b. What can be done?
• 2c. When can depositions last longer than 1 day/
  7 hours?
• When can more than ten depos be taken?