Professor Devine's Class Notes
1/16/2008
I. Discovery
A. As the introductory statement on p 407,
Discovery is, today, one of the central features of our litigation
system;
1. On the one hand, it is
designed to provide parties with information necessary to try their
case;
2. But on the other hand,
it tends to be very expensive, time consuming and therefore
discouraging to many litigants, especially those with limited funds;
3. But we get ahead of ourselves;
4. Consider why discovery is needed;
a. Recall the nature of pleading;
b.
Pleading is designed to convey a short concise statement of the claim;
c. As a result, the exact nature of the claim will not be known;
d. After
all of the pleadings are in, it will be necessary to determine what the
claim is about in more detail;
5. Notes indicate that
modern rules permit enormous amount of discovery of all kinds of things;
a. Look at Rules beginning with Rule 30
(1) Rule 30 allows depositions upon oral
examination;
(a) Applies to any person,
including parties;
(b) Rule 30(b)(6) makes it
clear that a corporation must provide the person who has information,
when the person seeking to take a deposition specifies the kind of
information sought from the corporation;
(c) As the notes, p 498
tell you, depositions are an effective way of asking questions to
witnesses under oath to test what their trial testimony will be;
(d) They tend to be
expensive, because, to do them,
i) Both
sides need their lawyers present;
ii)
Court reporter;
iii)
Time consuming;
(e) Do not confuse the
general rule relating to depositions, Rule 30, with the special
provisions of Rule 27;
i) Rule
27 also deals with depositions, but a special kind;
ii)
Consider the tobacco litigation cases;
iii)
Plaintiffs in these cases are smokers or former smokers dying of
cancer, which they claim was caused by smoking;
iv) Many
of these plaintiffs died before or shortly after the case began;
v) To
get their testimony in a way that could later be presented in court, at
a trial of the merits, depositions before the action were taken under
Rule 27;
vi) It
is important to separate the Rule 27 deposition from the Rule 30
deposition because a deposition pending trial will be taken with more
formality and more care to assure that the testimony will be admissible;
vii)
Depositions under Rule 30 will be more wide ranging, because they are
limited only by the general discovery limitation of relevance;
(2) Depositions upon Written Questions in Rule
31;
(a) Almost nobody uses;
(b) They can be taken of
anyone, the same as depositions;
(c) While they have the
potential to be helpful; there is no way to construct proper follow up
questions; thus they don't produce much more useful information
than interrogatories;
(d) They have been in the
news recently in several lawsuits in which President Clinton has been
involved. Information was obtained from him, in part, from use of
this discovery device;
(3) Rule 32 details the use of depositions in
court proceedings;
(4) Interrogatories to Parties, Rule 33;
(a) Can be used only with
parties;
(b) Limited to 25
questions, including all subparts;
(c) Good to find out basic
information;
(d) As a result of the
mandatory discovery provisions of Rule 26(a)(1), which requires
disclosure at the outset, of a great deal of information,
interrogatories are not as useful as they once were;
(e) While inexpensive, they
tend to produce answers that technically comply, but which are not very
helpful;
(5) Production of Documents and Things; Entry
upon Land for Inspection and Other Purposes--Rule 34;
(a) In many lawsuits, there
is some THING at the heart of the controversy;
i)
Products liability suit may focus on design defects;
ii)
Crashes--air, land, railroad, may focus on the vehicles;
iii)
Faulty premises will focus on the premises;
iv)
Contract cases focus on the contract documents;
(b) Rule 34 allows for
inspection of those things--the thing does not testify directly--as in
depositions or interrogatories--but it provides valuable information;
(c) Note that the rule
deals more with the procedure for inspecting these things--some of
which procedure can be time consuming and costly, depending on the
amount of things to be inspected or their location;
(6) Physical and Mental Examination--Rule
35;
(7) Note this rule requires
a showing of "good cause;"
(a) This avoids needless
inquiries that would otherwise violate individual liberty interests;
(8) Requests for Admissions--Rule 36;
(a) A party can request
that another party admit:
i) facts;
ii) the
genuineness of documents or things;
(b) If facts are admitted,
or if documents or things are admitted to be genuine, those facts or
the authenticity of those things are taken out of the trial;
(c) In that regard,
admissions are more evidentiary substitutes than they are
discovery; Once something is admitted, it is likely to be omitted
from the trial rather than added;
(d) An important aspect of
the Admissions rule is the second paragraph, second sentence:
"The matter is admitted unless ... it is denied;"
i) This rule
literally means that when a party does not answer a request for
admission, the matters requested are deemed to be admitted;
ii) The
notes suggest this would be an incorrect or an aberrational result--I
think not;
b. Timing;
(1) A brief idea of timing;
(2) It mentions rule 26(a)(1), which requires
that disclosure of the material mentioned in 26(a)(1) be made within 10
days after the planning meeting described in Rule 26(f);
(3) That meeting (under Rule 26(f)) must take
place at least 21 days before a scheduling conference held under rule
16(b)
(4) The scheduling conference under Rule 16(b)
can be held no later than 90 days after appearance of the defendant or
120 days after service on the defendant;
(5) Thus, the disclosures required under Rule
26(a)(1) must be made at least 21 days before the scheduling
conference, which will be held no later than 120 days after service
upon the defendant;