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Discovery Outline

I. INTRODUCTION
A. Evolution of Discovery
 Modern U.S. system is the most expansive in the world today and history, even
with its new “limits”
 Traditional System
o Request-based: no obligation to give anything unless asked for
o Party-controlled: little court involvement, honor system
o Expansive: very few limits, no privacy without court order
 1993 Amendments: added automatic disclosures, added presumptive limits, made
cooperation mandatory (discovery conference e.g.), district experimentation
 2000 Amendments: dropped district experimentation, narrowed automatic
disclosures, changed relevant to what, added more presumptive limits
 2006 Amendments: added ESI provisions
 2007 Amendments: restyling/renumbering on all rules
 2013 Amendments: simplified subpoena of non-parties
 2015 Amendments: “fundamental” changes
o Elevated proportional to the basic scope of discovery
o Played again with relevant to what
o Clarified sanctions for loss of ESI to rein in judges
B. Discovery Device Rules
 Remember the Discovery rules are a “sandwich”
o At both ends, generic rules that apply to all discovery [26 & 37]
o In the middle, specific rules for each device
 Devices: interrogatories, document requests, depositions, mental/physical exams,
requests to admit
C. CA’s Ideal Discovery Tactics
 Discovery should be done incrementally
o Don’t ask for everything at once – get building blocks on key issues then go
bite by bite and learn as you go
 Should think early on about summary judgment planning (or defending)
o Need carefully crafted interrogatory/request to admit to even be able to
make a Celotex motion for SJ
o Need to build evidence to stop SJ too if 

II. General Concepts and Duties


A. The Basic Scope of Discovery: Introduction
 Rule 26(b)(1) sets the basic scope of discovery
 Applies to ALL discovery – so always start here
 Elements: (1) non-privileged, (2) relevant, (3) proportional
B. Relevance
 Rule 26(b)(1)
 What does relevance mean?
o FRCP does not define relevance – so use exact words of FRE 401
 Not black and white – matter of degrees
 Battle of the limits – courts will draw a line (think not proportional)

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Discovery Outline
o FRE 401: Evidence is relevant IF
It has any tendency to make
a fact
more or less probable
than it would be without the evidence AND
The fact is of consequence in determining the action
o More likely to have broader reading of this rule in discovery than trial even
though same definition
 Relevant to what?
o Pre-2000: subject matter [what it still is in AL]
o 2000: 2 tier approach
 Claim or defense
 But if show court good cause, can get related to subject matter
o 2015: claim or defense only
o What is the difference between 2000 and 2015?
 Practically none – hard to say what is related to subject matter that isn’t
related to claim/defense
 CA says more of an attitude change of tre.tying to rein in courts who
were bleeding out too far
 Related to proportional such that if marginal relevance, any
burden would outweigh this small benefit
 Same/similar claims
o Can be relevant because it can show what  knew or should have known
o Court could limit to specific condition (Ex. only info on liver damage, not
heart damage)
o But for claims that occur post-injury can’t show what  knew or should have
known (already has notice from suit)
 But could show causation
 Same/similar products
o Can be relevant
o Court could limit to certain degree of similarity of product or let that be trial
issue (Ex. any product with same chemical parts = discoverable)
 Unless party scientifically shows that a product didn’t have those
chemicals
 Relevance and Admissibility
o Evidence can be relevant (and discoverable) even if it won’t be admissible at
trial
 *Admissibility does NOT matter for scope of discovery
 Once you are in the basic scope, the information does NOT have to be
admissible – Ex. can discover hearsay
o Misreading of the Old Rule: “reasonable calculated to lead to the discovery of
admissible evidence”
 Courts were saying that if there is no chance you will ultimately get to
admissible evidence, you can’t have discovery on it now
 *Likelihood of admissibility can be dropped into a proportionality
argument

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 Oppenheimer Fund: to be in scope, needs to be reasonably calculated to
lead to admissible evidence
 Distorts the language by conflating relevance with “reasonably
calculated to lead to discovery of admissible evidence” – not right
o Changed FRCP by adding “Relevant” to information to try to stop the
Oppenheimer misreading – courts still messed it up
 Current rule took out all “reasonable calculated” to avoid it
 State could make certain information outside discovery for public policy reasons
(i.e. they are declaring otherwise relevant info irrelevant and therefore
nondiscoverable)
o Ex. FRE 407 – subsequent remedial measures. Want people to fix things.
o So if statute (or maybe case law) says not relevant, it is not relevant
 Ex. Hall v. Sullivan: Smoothie King franchise deal where  is suing lawyer for
misrepresenting his experience on franchise deals
o Request: all records on firm’s prior franchise deals
o Relevant to misrepresented prior experience? YES, and also relevant for
malpractice claim (but further out)
o *Know the claims (complaint) and defenses (answer) for relevance
C. Proportional
 Rule 26(b)(1)
 Elevated to basic scope to emphasize but not a new concept – used to be in different
rule. Inserting reasonableness into scope of discovery.
 Standard: “proportional to the needs of the case”
o Rule lists factors to balance
 Access to this information: if only available from this party, court is more
likely to order discovery vs. publicly available information
 Resources: where relative wealth of the parties comes in
 Burden/expense: more than mere cost (Ex. freezing computer use)
 Each party bears its own costs of complying with his obligations
under the rules for discovery
o Balancing: the more relevant, the less we care about burden
 Ex. Bard: blood-thinners alleging injuring and say  omitted info from fast-track
FDA approval
o Request: communications between foreign subsidiary with foreign gov’ts
(looking for inconsistencies with what  told FDA)
o Relevance: yes but marginal – if consistent or inconsistent
o Proportional: in light of low relevance, not proportional
 Really expensive – 13 years, 18 foreign subsidiaries
o Court denies request – said already have enough information
D. Other “Reasonableness” Limitations on Discovery
 Rule 26(b)(2) lists other factors for limiting discovery [for methodology, not
substance]
 (i) Unreasonably cumulative or duplicative
o But can ask for the same information in different ways – here talking about
when it gets to be unreasonable [and more likely if minor issue]

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 Ex. Dorsey: entitled to ask same question in different ways – asked and
answered in depo is not proper objection to interrogatory
 “The various methods of discovery were intended to be cumulative and
complementary rather than alternative and exclusive.”
o Think redundant: same info over and over again
 (i) Can be obtained from a more convenient/less burdensome or expensive source
o Some devices are more efficient at getting some information
o Ex. Hall: better way to get past franchise experience is deposing the lawyers,
not producing documents with privilege problems
 “about as efficient as trying to pick up the contents of a spilled salt shaker with a
pair of tweezers”
 (ii) Party has amble opportunity to obtain the info – CA says rarely used today because
was aimed at re-deposing witness several times but now rule on that
 (iii) Cross-reference to “proportionality” of 26(b)(1)
E. Confidentiality and Related Concerns
 Rule 26(c)
 Confidentiality: asking whether there is public access to the information
o Discovery is NOT confidential absent a court order (or agreement by the
parties)
o This means  could give info she gets from  in discovery to anyone – could
post it on the internet
o How do you stop this? Agree to a protective agreement (that you will want
court to enforce) or get a court to issue a protective order
 What is the result of agreeing/ordering certain information confidential?
o Confidential information is still produced during discovery – but there are
limits on who can access it
o Sensitive/private information is not an excuse not to produce it – but it can be
a reason that access to the information is limited
 For “good cause,” court can issue a protective order to protect a party “from
annoyance, embarrassment, oppression, or undue burden or expense”
o Embarrassment: intimate things like sexual/reproductive information
o All discovery can be annoying/burdensome – talking about unreasonable
 Under most protective agreements, lawyer can designate documents
o Attorney’s Eyes Only: highest protection, only the opposing party’s lawyer (but
not the client) can read the document
o Confidential: vague concept – no specific definition
 Define this in your agreement or order!!
o Ex. Hibu: lawyer abused Attorney’s Eyes Only distinction b/c no reason for it
– court lowered designation to confidential so client could see it
 Can a non-party access discovery documents/information?
o *Remember discovery is NOT filed with the court
o A party CAN share info to non-parties absent a court order if she wants
o BUT non-parties have no rights to information obtained from discovery
 [Press has some constitutional rights to certain things]
 Non-party may generally be able to get filed documents
F. Privilege and Work Product
1. Privilege

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 Rule 26(b)(1): privileged information is NOT subject to discovery
 Overview
o Privilege is a term of art
o It is an evidentiary concept – attaches in all contexts but only applies in
litigation
o It is absolute – opposing party can never get it (unless waiver)
o Several types – we are only studying attorney-client
o Burden is on party asserting the privilege
o Privilege is strictly applied [ARE Advisory Comments] because derogation of
the search for the truth
 Purpose: protect communication so that people speak more freely to promote the
relationship
 Fifth Amendment privilege against self-incrimination
o Doesn’t apply to corporations or documents
o If claim 5th in criminal case, that fact can be used against you in civil case
o If jeopardy of case has passed, you can’t invoke because there is no fear of
incrimination now – why civil case will be stayed until criminal is over
 Conflicts of Law Issue
o Use state law as source of privilege UNLESS federal constitutional privilege,
federal statute governing it, or federal rule on privilege
o In a civil case, state law governs a diversity case (federal governs federal
question)
o BUT CA is removing any conflict issue – we are using the AL rule and definition for
this class: ARE 502
 Definition of Privilege
o Wigmore shorthand: confidential communication made for legal services
 Confidential
 Person making communication did not intend that they be
disclosed to third person other than client rep./lawyer
 Communication
 Any knowledge that attorney acquires from the client and any
advice given to the client
 Even knowledge acquired by sight
 For legal services
 Doesn’t have to relate to litigation but lawyer needs to be
giving legal advice/counsel
 Doesn’t attach for business or personal matters [ARE Advisory
Comments]
o ARE 502(a): definitions for the rule
 (3) Attorney doesn’t have to actually be licensed – client just must
reasonably believe the “attorney” is licensed
 Contemplates consulting an attorney licensed in another
jurisdiction but not AL
o ARE 502(b): basic rule of privilege but read with definitions in (a)
 (4): adopts minority position that insured’s communications to
insurer are NOT privileged [ARE Advisory Comments]

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 Who is covered by the privilege?
o Expanded beyond just the client and lawyer – also includes potential clients,
between lawyers and their representatives
o ARE 502(a)(4): any person employed by the attorney to assist in providing
legal services
 Doesn’t have to be on standing payroll [Ex. could be accountant]
o Includes corporations – UpJohn followed for corporate employees [ARE
Advisory Comments] – see section below
 Who does the privilege belong to?
o Privilege belongs to the client
 Former employee of corporation cannot waive the corporation’s
privilege by disclosing privileged information
o Who can assert the privilege?
 The client [or client’s representative]
 The attorney – on behalf of his client
 What does the privilege cover? Underlying Facts vs. Confidences
o Protects the communication but NOT the underlying facts
 Why? Purpose is to promote full/frank disclosure – not everything
client knows
o Hypo: Client tells lawyer he killed his wife. At depo:
 Opposing counsel can ask: “Did you kill your wife?”
 But can’t ask: “Did you tell your lawyer you killed your wife?”
o Intertwined so often depends on how discovery is phrased
o Tricky area: client talking to another client
 Presence of Non-Client During Communication
o ARE 502(a)(5): Can still be confidential if a non-client is present if that
person’s presence is “reasonably necessary”
o Ex. Lynch: mom wants lawyer for will so daughter gets one but is also present
in meetings. Son finds out and says mom didn’t want this will.
 Daughter’s presence in the meetings with the lawyer was NOT
reasonably necessary = no privilege for those convos
 If the daughter was not present, lawyer could still testify about the
mom’s capacity, behavior, etc. – but not what was said
o But if client on deathbed, his nurse being present might be “reasonably
necessary”
 A Corporation’s Privilege
o Corporations are entitled to privilege
 The privilege belongs to the corporation – not directors/CEO
o When a corporation’s lawyer talks to its current employees, are these
conversations privileged?
 Post UpJohn: YES
 [AL follows UpJohn test in ARE 502(a)(ii)]
 If state still follows control group test, depends on employee
o Ex. UpJohn: illegal payments to foreign gov’t – tax implications
 Request: questionnaire sent by lawyer and responses by employees
 Rejects “control group” test: said only privileged if employee had the
power to implement the legal advice given

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Discovery Outline
 Under this test, most lower level employee responses
wouldn’t be covered
 Ignores that purpose of privilege isn’t just letting lawyer give
advice to those who can act on it but also giving info to lawyer
to enable him to give good advice
 Clarifies that any conversations with employees made for the
corporation’s representation is privileged
 Why? Purpose is full/frank communication so lawyer can give
best representation – need to include any employee lawyer
needs to talk to
 Lawyer needs to gather facts to advise the corporation
 *Talking about current employees – court leaves open former
o Ex. Westinghouse: Does a corporation have to respond when the only person
who knows all relevant information is their lawyer? YES
 Corp. lawyer is often depository of all relevant information and only
person who knows all the facts
 Corporation MUST answer an interrogatory – so if lawyer knows the
information, must respond [but not what lawyer did at investigation]
 Merely because attorney learns it, does not shield it
 Joint Clients
o ARE 502(b)(3)
o Not good idea to represent 2 s or 2 s in same case even if no conflict
o Privilege will attach to communication of both clients and lawyer as to this
particular opposing party ONLY – “common interest”
o BUT if 1 client turns on the other, any communication between them or with
lawyer is NOT privileged – and lawyer can’t represent either one
 Exception #5
 Exceptions
o ARE 502(d)
o Reflect policy decisions that privilege will NEVER attach to these
circumstances
 No privilege in the first place so no waiver – and no subject matter
bleed
o (1) Furtherance of Crime or Fraud
 Client got attorney’s services to enable someone to commit what
client should reasonably have known to be crime
 But client can ask if something is legal and privilege attaches
o (2) Parties claim through same deceased client
 Ex. under a will, interstate, inter vivos transaction
o (3) Breach of Duty by Attorney or Client [malpractice suit]
o (4) Attorney attested to a document – can testify to competence/intent of the
signor only
 Basically attorney can act as any other attesting witness
o (5) Joint Clients [see above]
2. Work Product Protection
 Rule 26(b)(3)

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Discovery Outline
 Overview
o Work Product provides protection from discovery – not a privilege
o Only a litigation concept to protect trial preparation
o NOT absolute – opposing party can get it if show they really need it
 Purpose: promote zone of privacy for a lawyer to work on litigation
strategy/representation in our adversarial system
o Established by USSC in Hickman v. Taylor
 Judge-made exception because of public policy
 Attorneys need zone of privacy
 Want adversarial system to function well so don’t want lawyer
relying on the other’s research
 Also don’t want lawyers to stop writing things down
 Jackson: “Discovery was hardly intended to enable a learned profession to
perform its functions either without wits or on wits borrowed from the
adversary”
 Hickman was codified in 26(b)(3) but there are some differences (Hickman could still
be used even if don’t meet 26(b)(3))
o Hickman protects things in attorney’s head but Rule is only
document/tangible things
o Hickman only protects the attorney but Rule is party or its representative
 3 Phases of Work Product Analysis
o Step 1: Is it work product?
 Document or tangible thing
 Prepared in anticipation of litigation
 By a party of its representative
o Step 2: If it is work product, and other party makes motion to produce
[Withholding party has made work product objection and produced log of withheld documents]
 Motion is granted IF the material withheld is not WP OR
 Motion is granted IF
 Other party has substantial need for it AND
 Can’t get substantial equivalent without undue hardship
o Step 3: Court has decided to make you give it to other side
[talking to Court here who has granted motion to produce]
o Step 1: Is it work product?
 Document or tangible thing
 Includes ESI, models, etc.
 Applies to documents already in existence; not things you create as a
response
 Prepared in anticipation of litigation
 AIG Test: can document fairly be said to have been prepared because of
the prospect of litigation
 Did the prospect of litigation motivate the creation of the document?
 Suit doesn’t have to be filed to meet this
o But a single customer complaint doesn’t automatically imply
litigation typically
 Not met if made in ordinary course of business

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 Ex. Norfolk: hospital incident report just ordinary course of
business BUT claims agent incident report was in anticipation
b/c expected wrongful death suit
 Doesn’t have to be created for current litigation – just some litigation
 By a party or its representative
 Not just lawyer – Example list in rule, like auditor
 Not a witness or police though
o Step 2: If it is work product, and other party makes motion to produce
[Withholding party has made work product objection and produced log of withheld documents]
 Motion is granted IF the material withheld is not WP OR
 Motion is granted IF
 Otherwise discoverable: relevant, not privileged, proportional AND
 Other party has substantial need for it AND
o Ex. statement from witness that is dead or out of the country
 Can’t get substantial equivalent without undue hardship
o No need/equivalent available when requesting party already
took deposition of conductor that they wanted witness
statement on
o Step 3: Court has decided to make you give it to other side
[talking to Court here who has granted motion to produce]
 Court should try to not disclose lawyer’s mental impressions
 But aspirational because all WP contains some impressions
 Ex. attorney chose which questions to ask
 Case Law Examples of Work Product:
o Witness statement taken by lawyer after tugboat crash (Hickman)
o Questionnaire made by lawyer for employees about potential foreign bribes
(UpJohn)
o Witness statement of conductor taken by claims agent right after train crash
(Norfolk)
 **Subset of Work Product: Witness Statements**
o If a person (party or nonparty) makes a statement that
 Was written and approved/adopted by that person OR
 Substantially verbatim statement
o Then that person can get their own statement (if you won’t give it, court will
order you to do so)
 If lawyer is withholding work product THAT IS RESPONSIVE TO A REQUEST, he must
object on work product grounds and provide the other side with log of it
o With general description of what he is withholding but that won’t reveal
contents
o *ONLY log if withheld on privilege or work product grounds – not any objection
3. Waiver of Privilege or Work Product Protection
 Rule 26(b)(5): doesn’t define waiver, just lets court decide
o (B) gives procedure to the receiving party
 FRE 502, ARE 510: waiver rules
o 510(A), (B)(1)-(2): everything after is conflicts issue – don’t worry about it

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 Waiver means that the information would otherwise be protected if lawyer had not
made this mistake or decided to disclose it
o Contrast: if third party present for conversation, privilege wasn’t waived –
never existed in the first place
 Waiver is used in different contexts:
o Can be a punishment – court forces it
o Can be voluntary (deliberate) waiver
 Client may want the other side to have it (for strategic reasons)
 Not knowing that you are waiving the privilege – just knowing that
you are giving the information out
o Can be involuntary (inadvertent/mistaken) waiver
 Lawyer accidentally gives information to other side but didn’t mean
to – this is a mistake
 With ESI, easy to do so rules have made it easier to get it back
 Who has the burden?
o AC: burden on the party saying information is privileged
o WP: burden on the party saying that WP was waived (opposite of above)
 When could waiver occur?
o Express – lawyer says “waive AC/WP”
o You put the privileged communication/WP “at issue” in the litigation
 Explicitly rely on existence or absence of communication that you say
is protected
 But not “at issue” if other party wants it to impeach you
 Ex. relying on your internal investigation for your position
 Ex. Lynch: lawyer asked questions about what attorney notes from
meeting with old lady said, private conversations
o You did not properly object UNLESS “good cause”
 Failed to object at all (or not timely) to AC/WP information OR
 Failed to particularize your objection
 Required for document request too but implicit in rule
 Hall Factors for “Good Cause”: length of delay/failure to
particularize; reason for delay/failure to particularize; dilatory/bad
faith; prejudice to other side; if request for proper/not too
burdensome; whether waiver would be excessively harsh
o If you give AC/WP information to another person/entity
 AC: automatic waiver
 WP: not automatic waiver
 1) Is it disclosed to an adversary or potential adversary?
o If yes, waived
 2) If not, did the disclosure create a substantial likelihood that
an adversary could get it?
 Ex. Hall: waiver of submissions given to gov’t office in case
with employee BUT not the position statement
 Subject matter bleed
o If waiver occurs, you do not just waive for that 1 document necessarily
o Other party can inquire about what you waived and might give them access
to other (previously) protected information

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o ARE 510(b)(1) narrows subject matter bleed to cases of intentional waiver
 So inadvertent waiver (if no clawback) only loses privilege for that
particular document – lessens the punishment
 Inadvertent Waiver
o ARE 510(b)(2)
o Used to say if you voluntarily handed it over, you lost privilege
 Attitude shift now because realize that this happens, so not going to
say you give it up every time
o Requirements
 Waiver was inadvertent: not intentional
 You took reasonable steps to prevent the waiver
 Ex. did privilege review, tell secretary to be careful
 Once you figured out you disclosed the privileged material, you took
reasonable steps to get it back
 Go to Rule 26(b)(5) [or ARCP 26(b)(6)]
o Rule 26(b)(5) demonstrates that we want parties to return privileged
information they have gotten because of inadvertent waiver
 Lawyer who accidentally waived should notify the other side
 Then the other side: MUST return/destroy it OR at a minimum, put it
aside (sequester)
 Other side MAY go to court to use it – waiver is not automatic
o MRPC 4.4(b) says a party that receives a document he knows or should
know that it was inadvertently sent shall “promptly notify the sender”
 No affirmative duty not read but some pre-4.4(b) ethics opinions
suggested this duty existed
o Clawback agreement: lawyer picks what he wants, then I get to decide what to
claim privilege on
 Court enforce it between these parties BUT not necessarily going to still
be privileged if someone else sues on related matter
 Risk waiver to outside world because intentionally given up
o Takeaway: forgiving of inadvertent waiver as long as you tried to take
reasonable steps
4. Privilege and Work Product Logs
 Rule 26(b)(5)(A)
 If you withhold documents because of AC or WP, you must submit a privilege log
 “describe the nature of the documents, communications, or tangible things not produced or
disclosed—and do so in a manner that, without revealing information itself privileged or
protected, will enable other parties to assess the claim.”
 Local district rules can supplement federal rules – Ex. Middle District’s guidelines
5. Problem Set – SEE HANDBOOK
G. General (Procedural) Duties in Discovery
 These focus on the procedural obligations on the parties when they conduct
discovery but not the substance of material for discovery
1. Cooperation
 Rule 26(f), Rule 37(f), Rule 16
 Cooperation is required (but also just a good idea)

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 26(f) Conference: rules amended to require this mandatory, pre-discovery
conferences between the parties
o Discovery cannot begin until this happens (except 1 narrow situation)
o Even if not required in your state, can still agree to do this or ask court to
order it
 AL is permissive but not mandatory
o Doesn’t have to be in person anymore – can be over the phone/Skype
 Unless court orders it to be in person
o Should discuss discovery topics (like ESI preservation)
 Ex. Middle District Guidelines – HB 54-55
o Need to agree on a discovery plan (and what you don’t agree to)
 16(b) Conference: after parties meet together, they meet with the judge
o Judge can decide discovery issues you couldn’t agree on, sets a discovery cut-
off date, issues a scheduling order
2. Good Faith and Reasonable Inquiry
 Rule 26(g): imposes affirmative duties/sanctions on parties in conducting discovery
o 11(d) says that Rule 11 does not apply to discovery context – but 26(g) is like
Rule 11 for discovery context (no 21 day safe harbor though)
o *This rule does NOT apply to depositions or physical exam
 Person deposed just has to answer with what they know at that time –
doesn’t even have to prepare
 Except 30(b)(6) corporate designee
 Certification provision: lawyer must sign every discovery request, response, or
objection to certify that it meets the applicable standard
o First step: was a “reasonable inquiry” made?
o Second step: does the request/response meet the applicable standard?
 Reasonable Inquiry
o Not appropriate to say “I don’t know” without ever looking for the answer –
lawyer must make an effort to find the information
o Standard is “reasonable” though – not exhaustive
o Time: look at time that the discovery paper was signed
 Courts should try to avoid hindsight bias
 “Disclosures” means 26(a) automatic disclosures only
o Standard: complete and correct
 For other requests/responses, the requirements are:
o Consistent with the rules AND
o Warranted by existing law OR by a nonfrivolous argument for changing law
AND
o No improper purpose AND
 Can’t use discovery to increase cost/time/burden on other side, even
if your request otherwise conforms with the rules
o Not unreasonable or unduly burdensome/expensive considering the
circumstances of the case and importance of the issues
 Like proportionality
 Sanctions: court has discretion to issue these

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o Objective standard – but takes into account signor’s actual
knowledge/motivation too
o St. Paul Factors: number/complexity of the issues;
location/nature/number/availability of witnesses or documents; extent of
past working relationship of attorney and client in related/similar litigation;
time available to conduct an investigation
o Ex. St. Paul: obstructive “Rambo”-style tactics do not comply with 26(g), so
sanction = write article on why boilerplate objections are bad
3. Supplementation
 Rule 26(e), Rule 37(c)(1), ARCP 26(e)
 If a party responds to a discovery request, he MUST supplement or correct that
answer
o So if you later learn something that adds to one of your answers or learn that
you were wrong, you must tell the other side the updated/correct answer
 Applies to discovery EXCEPT depositions and physical exams
o Important for picking a discovery device if you want duty to supplement to
attach
 No timeline – just “in a timely manner”
o But can set a time period in 26(f) conference and should
o If you supplement quarterly, will draw less attention if you must supplement
with something bad for your case
 Only exception: if the new information is otherwise made known to the other party
o Ex. made list of people with info, at depo, both sides hear new name of “Jane
Smith” – no duty to supplement
 Failing to supplement violates the rules and court can sanction – even by saying
party who didn’t supplement can’t use the new information
 AL still has old version framed in negative terms – more limited
o Need to change your timing for discovery to accommodate this
o May need to wait until later since no supplementing in all cases
o OR just agree to use federal version – encouraged under AL 26(e)
H. Ethical Duties in Discovery
1. Preservation, Non-Destruction, and Correction of Evidence
 Rule 37(e), MRPC 3.3, MRPC 3.4(a) & (e)
 You cannot falsify evidence or create false evidence – even for a good reason
 Lawyer cannot tell his client to clean up his Facebook page
o Criminal statute in every state: Ex. AL Code – HB 4
o If intent = impair use in proceeding, mens rea met
 Preservation of Evidence
o When does the duty to preserve evidence attach?
 Not just when there is a pending subpoena or request
 Attaches when litigation is “reasonably foreseeable” and once client
has met with you about suing, this is met
 If you foresee a problem, send a litigation hold out or talk to
prospective 
 But if lost before duty attaches, no problem
o Look out for car accident cases because client will want to repair car

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Discovery Outline
o Ex. Sylvestri: drunk driver  wants to sue GM for airbag defect. Engineer
inspects ’s car and says need to tell GM about the car. Lawyer doesn’t tell
GM. Car is repaired/sold.  sues GM years later.
 Court dismissed suit for failure to preserve evidence – even though 
didn’t own the car (friend’s car)
 GM couldn’t defend itself when suit was brought
 Most courts only dismiss for this if willful conduct
 More common penalty: adverse jury instruction
 Duty to preserve attaches when litigation is reasonably anticipated,
attaches for all evidence with anticipated use
o Also a problem for ESI – easy to delete or fail to preserve
 Rule 37(e) presumes a duty to preserve ESI but not defined – comes
from the CL/implicit
 Rule lessens the punishment on loss of ESI
 Comments: reasonable steps – not perfection
2. The Client “Lie” in Civil Discovery
 Rule 26(b)(1): privileged information is NOT subject to discovery
 Lawyer can’t tell his client to lie or falsify evidence
o In dep prep, lawyer should repeatedly stress they need to tell the truth
o Can’t knowingly (in advance) present false evidence/information
 What if lawyer finds out only later that something was false?
o *If there is no pending/answered request, keep your mouth shut. You don’t
have to produce unless requested.
 If already responded to a request, duty to fix
o MRPC 3.3: required to correct – trumps duty of confidentiality
o Lawyer must remedy it – but should do so in as limited as way as possible
(minimize harm to client)
 First, try to fix in a way least harmful to your client
 Try to persuade client to rectify the situation
 For depo, correct the transcript or tell other side not to rely on
answer. Other side will probably re-open depo
 Or put in supplementing report for interrogatory
 But if all else fails, lawyer must correct and tell court
 ABA Opinion: key issue in case was whether insurance guy got claim in 60 days. At
depo, ins. guy says no, lied in interrogatory, and supplied falsified doc. Lawyer
moves for SJ, then later guy says he lied – he had gotten the claim in the 60 days.
o Lawyer had to fix because this was material for a key issue, even if it was
never used
o 3.3 duty to disclose client perjury trumps 1.6 confidentiality
o If client won’t fix, lawyer has duty to see fraud not perpetrated on tribunal.
o Min. is withdrawal but probably more to comply/stop fraud
3. Receipt of Privileged/Protected Information
 On top of Rule 26(b)(5) process, ethics rules add to this as matter of professionalism
 If you are reading a document you figure out is privileged, MRPC 4.4(b) says you
must tell the other side (which should kick in the 26(b)(5) procedure)
o You must “know or reasonably should know” it is privileged

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Discovery Outline
 Shows benefit of using privileged/confidential stamp on documents
o ABA used to suggest you should return it without reading it but backed off
this – no affirmative duty in rules not to read
4. Informal Fact Gathering and Witness Contacts
 Lawyers are free to conduct informal fact gathering outside of formal discovery –
and should do this
o Informal fact gathering isn’t governed by FRCP but is governed by ethics
rules
 Who can you talk to? MRPC 4.2: the “no contact” rule
o Person not represented by counsel in the matter
 ABA says members of uncertified class are deemed not represented
 CA says murky area though – get court clarification and
assume you can’t talk to them
o BUT can’t talk to person lawyer knows is representing by counsel
 Why? Assumes wrongdoing/trickery by lawyer
 What communication is covered by the ban?
 Applies to all forms of communication
 Does not apply to client to client communication
o Lawyer can advise client on communicating with the
other party (but can’t use to circumvent the rule)
 Doesn’t matter if lawsuit has been filed or not – also applies in
non-adjudicatory context like a transaction
 What does the ban NOT apply to?
 Doesn’t include “second opinion” lawyer – only retained
lawyer
 Limited to matters related to the subject of the representation
o Can do general small talk – hi, how are you?, etc.
 Can’t talk to person without lawyer’s permission – even if person
calls you and wants to talk
 Exception: “authorized by law”
 Ex. can talk to government even if gov’t has counsel
o Rule used to say “party” – now “person”
 Ex. Gaylord: bad law now but facts are illustrative. AL SC held that
ban only applies to formal parties in litigation.
 Nursing home patient burned in hot bath. Lawyer calls the
nurse who gave the bath
 But Court said not “party” because suit not filed
 Under current MRPC/new AL rule, NOT allowed
o Can’t freely talk to other side with counsel before suit
is filed
 Dissent: purpose to level playing field and that isn’t fulfilled
by letting lawyer do this
 “Person” is not limited to formally named parties
 Applies to witnesses (with counsel on the matter)
 Why? Equally worried about protecting them/trickery

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Discovery Outline
o Violating the no contact ban could result in excluding evidence gathered as a
result of the violation or disqualification of counsel
 What can you say and do?
o MRPC 3.4(f), 4.3(b), 1.13(f)
o 3.4(f): Can’t tell the person not to talk to opposing counsel
 UNLESS relative or employee or agent of client
o Employee includes expert witness
o Corporation can ethically tell its current employees not
to talk
 UNLESS it would be against that person’s interest not to talk
to opposing counsel
o Individual may be a victim of your client’s wrong
o Ex. employee discrimination class action against corp.
and talking to female employee who could be member
of that class
o 1.13(f): but can still talk to this person, IF you clarify
your role
o AL 3.4(d) is identical to MRPC 3.4(f) but adds two additional circumstances
when you can advise not to talk:
 Person may be required to refrain from disclosing the information
 Ex. statute about grand jury secrecy, trade secret rule
 Information pertains to covert law enforcement investigations in
process [doesn’t apply to civil cases]
o 4.3(b): lawyer must correct any misunderstanding witness has about his role
 Do you need to tell the witness who you are and who your client is?
o MRPC 4.3
o Probably need to say you are a lawyer for civil litigation matter
o Probably have to say who your client is
 Or state that you cannot identify the client
o If client’s interests are adverse to the witness, need to state that too
o Only applies to when actively working for a client, not normal public
exchanges
o Gaylard: Dissent says you need to identify yourself, client
 Can you lie to the witness?
o Generally no
 And can’t send someone else to do what you can’t as lawyer
o Some sliver of wiggle room for covert operations/pretextual calling
 Seemingly violates rules: 4.1 (don’t lie); 4.2 (no contact); 4.3 (ban on
suggesting disinterest); 8.4 (professional misconduct)
 But some have amended rules to allow prosecutors to oversee sting
operations
o Pretextual calling: not identifying yourself as lawyer to “test” something or
someone
 Compare Gatti to Apple Corps. in handout
 Ex. patent infringement, claiming physical injury, fair housing
discrimination

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Discovery Outline
 AL AG 1: okay for lawyer to hire investigator to pose as a customer to
see if  claiming injury was physically able – no discussion of case,
very little deception
 AL AG 2: pre-filing investigation, limited deception, and acting as
member of public okay – but about subject of suit
 Can’t circumvent rules for witness statements
o Only the witness himself is entitled to his own statement
o Lawyer can’t induce a witness to get his own statement and give it to him
 Can you discuss matters protected by another person’s privilege?
o MRPC 4.4
o No – but murky
o Can’t induce former employee to breach corporation’s privilege – including
orally and in documents
o Some courts go further and say lawyer has affirmative duty to warn former
employees not to talk about privileged matter
o Special issue: whistleblower saying employer is wrongfully asserting
privilege and/or not complying with legal obligations for discovery
5. Multi-State Discovery
 Unauthorized practice of law is a crime – see AL Code § 34-4-6
o Aimed at non-lawyers but also encompasses out of state lawyers not licensed
in this state
o This might be met if you cross state lines to do a deposition in a state you
aren’t licensed in
 ABA has tried to fix this problem by modifying its rule – MRPC 5.5
o Not unethical to conduct discovery across state lines
o But still a problem because criminal statutes haven’t been changed to match
 Ex. AL 5.5 was amended to allow some limited work – comment
contemplates discovery when case is related to home state
 BUT criminal statute not amended technically so still a crime?
 Not going to ever prosecute for this though
 Possible cures: pro hac vice, associate local counsel (if takes active role)
6. Representation of Corporate Employees
 MRPC 1.13
 Corporations as Clients
o Need to talk to employees because there is no one else to “speak” for the
corporation
o Privilege belongs to the corporation – not employees, shareholders, etc.
 Lawyer’s convos with employees will be privileged (as long as made
for representation but obviously met for discovery)
 The No Contact Ban for a Corporation’s Current Employees
o MRPC: can’t contact two categories of employees
 Employees who supervise or control the litigation
 But can contact in-house counsel even if corporation has
outside counsel for the litigation
 Employees whose actions may expose the organization to liability
o AL: can’t contact three categories of employees

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Discovery Outline
 Employees whose actions may expose the organization to liability
 Managerial employees
 Employees whose statement may be a party admission
 Only employees who have authority on behalf of the
corporation to make decisions about the course of the
litigation
 So, AL is like MRPC except adds managerial employees who
don’t direct the litigation
o But problematic because how can lawyer know if employee will impute
liability without talking to him?
 Some say lawyer can talk to employee who is mere fact witness but
still problematic
 The No Contact Ban for a Corporation’s Former Employees
o No contact ban does NOT apply to corporation’s former employees
 Doesn’t need consent of the corporation’s lawyer to talk to them
o BUT 2 caveats
 Lawyer has obligations not to induce former employee to break the
privilege of the corporate party
 No contact ban if the former employee has his own lawyer
 Current Employees
o If opposing party, you can’t talk to current employees
o UNLESS current employee is a pure “fact witness” only: witnesses facts but
would not impute liability
 AL Ethics Opinion Hypo: cashier watches V slip in puddle at store.
AL says fact witness but CA disagrees because cashier saw danger
and  lawyer will use that against store
 CA’s Hypo: Budweiser employee sees Bud. truck hit another car
 Fix this by telling all current employees not to talk to other lawyers
(unless adverse to their interest)
o If representing corporation, need employee to know you represent the
corporation and not them – MRPC 1.13
 If you perceive they don’t understand, need to correct that
o If you start to think employee may be adverse to corp., need to be more
explicit in your warnings and tell them they may need independent counsel –
even at the risk they clam up
 Can’t give legal advice to employees EXCEPT “think you may need
lawyer”
 If potentially adverse employee and you warn them, you can talk to
them – but once they get lawyer, must talk to lawyer
 Former Employees
o If opposing party, you can talk to former employees
 [Minor group of courts say off limits but very small number]
o Some courts basically require Mirandizing former employees
 Must warn them not to break privilege – not theirs to waive
o If representing corporation, be on guard with what you say and assume other
side will talk to him

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Discovery Outline
 Can remind him not to share privileged information or documents
(get these back)
 But can’t tell him not to talk to the other side
 If key employee for the suit, corporation may want to hire him as a
consultant to cover him under privilege
 Current Employee as Joint Client?
o Usually never want to represent both the corporation and its employee
o Lawyers say they want to do this to get more fees, increase control, keep
privilege
 But convos with employee are covered by corp.’s privilege already
 Dep. prep. with employee may not be privileged
o If employee becomes adverse, you can’t represent either one now under
MRPC 1.9
o If current employee has his own counsel, privilege can attach for “common
interest”/joint defense if you are there too
7. Special Competency Duties and Issues in E-Discovery
 California Ethics Opinion:
o Clawback for anything – no privilege review beforehand
o CA says don’t do this – not “reasonable steps” for inadvertent disclosures so
non-parties wouldn’t be bound by the agreement
I. Timing of Discovery
 Rule 26(d)
 When can discovery start?
o Old federal/some current state model: no start date -  can serve discovery
with the complaint (current AL rule)
o Current federal model: can’t start until 26(f) conference
 Why? Want parties to talk about discovery before conducting it
 Practically, not going to start until 16(b) conference because judge will
need to settle some issues
o Discovery goes forward even if  has filed a 12(b)(6) motion
  could stay discovery in 26(f) conference by party agreement or
delay merits discovery until motion is ruled on by court order
o Might need some discovery to prepare for 26(f) conference to understand
potential issues – like org. chart, how ESI is stored
 Illustrates theme of incremental discovery
 What is the sequence of discovery?
o Rule 26(d)(2)
o No set order –  doesn’t have to wait for  to finish, can conduct
simultaneously
o No order of devices either – can use any device whenever you want but may
want to order them certain ways for strategy
 UNLESS discovery plan sets an order
 Most courts order a fact discovery cut off date, then a later expert
discovery cut off date
 Can you change the time for response, etc.?
o Rule 29: can change most discovery deadlines by party agreement

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Discovery Outline
o BUT parties can’t agree to change the discovery cut-off deadline set by the
judge
 Judge may modify it if you go to him but doesn’t have to
o By local rule/court order/discovery plan, usually have to serve last requests
30 days before discovery deadline to give full time to respond
 How do you calculate time?
o Rule 6 – SEE CHART
 Narrow situation where discovery is allowed before the suit is filed (or during
appeal pending)
o Rule 27
o Purpose: to perpetuate evidence/testimony
 NOT investigating whether you have a case or not
 Ex. key witness is dying before suit can be filed, so need to depose
him now
o But only to “prevent a failure or delay of justice”
o Comment extends it to all Rule 34 devices so not just depo
 AL 27: slightly broader because specifically refers to Rules 34, 35
o Ex. Bridge Collapse: pre-suit discovery is not allowed because lawyer didn’t
even have a client yet and no need because gov’t preserving E
o Procedural Requirements:
 Client, idea of case, probable s, need for evidence now before suit
can be filed, jurisdiction of court
 And need formal notice to potential adverse parties so they could
attend
J. Non-Party Discovery
 Rule 45
o (a)–(c): content of the subpoena, for the requesting party
o (d)-(e): responses to the subpoena (for witness)
o (f)-(g): which court should hear challenges, power to enter contempt order
for failing to comply
 Subpoena: court order that commands a person to give testimony or produce
documents (subpoena duces tecum)
o It is for non-parties ONLY
 You can make a party act just by serving with request
o But who is a party?
 Ex. AIG: addresses who party is for purposes of discovery
 Unincorporated pool of insurance companies
 Pool is still party even though 1 co. is suing as attorney in fact
for the pool
 Court says pool = party but individual members of the pool
are NOT so need to subpoena them but not the pool
 BUT pool has to provide docs in their “possession, custody, or
control” and pool members in their control
 For depo, don’t need subpoena for member suing, Pool, or
Pool Board – do need them for other members
 Class Action for Unnamed Class Members

20
Discovery Outline
 Turns on the class definition but no definitive rule on this
 Generally, no requests can be sent to unnamed parties so need
subpoena
 Corporation as a party means that employees must be subpoenaed
(but serving requests on corp. means corp. has to ask employees)
 Lawyers are NOT parties – need subpoenas for them
o Only applies for depositions and Rule 34 requests (documents)
 So can’t get interrogatories or requests to admit from non-party
 Narrow circumstance of getting medical exam of non-party under
“custody or legal control” of a party but need court order
 Content of the Subpoena
o (a) ALL subpoenas must contain
 Must state court where issued, title of the action, civil-action number
 Court doesn’t actually issue – lawyer does as officer of
court/has effect of court order
 Tell each person it is directed at, the time and place where he must:
[choose at least one of the following]
 Attend and testify, produce designated
documents/ESI/tangible things, OR permit inspection of
premises
 Put the text of Rule 45(d) and (e)
o (b) If subpoena for a deposition: must state recording method
o (c) Can request more than one of the commands – can be combo. Can specify
how ESI should be produced.
 Process of Getting a Subpoena
o For state court, if action is in one state but witness in another, you can still
subpoena that witness but need the witness’ state court to issue it
o For federal court, much easier because of unified system
 Who can issue a subpoena?
o Lawyer, as officer of the court, can do this – if authorized to practice in the
issuing court
 Issuing Court: court where the action is pending
 Court of Compliance: court in the district that lawyer has said is the
location of compliance (so 100 miles around home/work)
o Pro se litigant can’t do this
 Location – where does the subpoenaed person have to go?
o Rule 45(c)(1)
o Place of Compliance is chosen by the lawyer issuing the subpoena
o Can force a witness to travel up to 100 miles from his usual residence OR
place of employment
 Geographic limit to protect non-party
 But generally, lawyer should travel to the witness
 Service of the Subpoena
o Service can be done anywhere in the United States
o Delivering a copy to the named person – no substitute versions
 Can’t serve the person’s lawyer/relative – must be the actual person

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Discovery Outline
 Can’t serve via mail or email or leave at house – must be in person
o For a corporation, can probably serve 4(h) person authorized to accept
service of the initial summons – or just find appointed agent for service
 What can the subpoenaed person do?
o Seek relief through objection or motion to quash or limit the subpoena
o Courts apply the 26(b) standards more protectively for non-party
o Court may use cost-shifting from non-party to requesting party
 General presumption that responding party bears expense of
complying with discovery but non-party is special
 “not [non-party’s] lawsuit and they should not have to pay for the
costs associated with someone else’s dispute”
 And don’t want to jeopardize non-party cooperation
o Ex. Guy Chemical:  wants non-party who is customer of  to pay for business
docs on unfilled orders for damages calculations
 Any cost beyond trivial costs (de minimis) is burdensome (not all
would go this far)  not about how ordinary the records are
 Non-party doesn’t have to pay to produce ordinary business records –
requesting party  bears the cost because more than de minimis
 Courts apply standards more strictly for non-parties to protect
 What can the opposing party do about a subpoena?
o Ex. Brown:  subpoenaed ’s former employers in employment
discrimination suit.  moved to quash.
 Party has standing for motion to quash for the subpoenas for her
employment records
 But party needs to make a motion (affirmatively act) – can’t just object
 Here, “any and all” doc request is overbroad b/c not tailored to suit
but whether other discrimination claims are relevant – but must go
through interrogatory instead
o Can also challenge subpoena under Rule 26 as irrelevant/overboard
K. Informal Fact-Gathering – Judicial Limits?
 Some courts have said it is improper for them to interfere with informal fact-
gathering/investigation
 But others put some limits on this
o Ex. Henry: limited ability to contact former clients of the insurance co.
 Certainly going to interfere if ethical violations
 No rule on this – bring before court under 26(c) motion
L. International Discovery [Review Only]
 Some countries have blocking statutes that bar their citizens from participating in
U.S. discovery
 But if a foreign national is party to a U.S. suit, most courts will order it to participate
in discovery because of personal jurisdiction
 Party in U.S. case may be able to get discovery from foreign national non-party
M. Serving, Filing and Public Access to Documents
 Rule 5
 Discovery is served BUT never filed
 5(a)(1): serve discovery requests/responses on other parties

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Discovery Outline
o Response: includes objection
o “Other parties” means every other party – not just requesting/responding
party’s lawyer (unless court orders otherwise)
 5(d)(1): but parties do not file discovery with court
o Discovery is only filed in connection with a motion
 5(b): Form and Type of Service
o Serve discovery papers on other party’s lawyer (lesser than initial complaint
Rule 4 service)
 Public Access
o Public typically has no right to access discovery not filed with court
o But if filed (with motion), public has access unless under seal
o Party can freely share unfiled discovery with anyone
 Unless parties have agreed otherwise OR court has entered 26(c)
protective order
o Ex. Frankl: Non-profit car safety group wants access to discovery for GM tire
case but Court says no entitlement to public access for unfiled discovery
 See HB 107 for arguments for allowing/banning public access
 Options: immune from public access, presumptively immune, or
accessible
N. Appellate Review of Discovery Orders
 Most discovery orders are interlocutory and not subject to immediate appeal
o 28 U.S.C. § 1291: final judgment rule says federal appellate courts only have
jurisdiction over final decisions (those that end the proceedings)
 Discovery doesn’t end the case, so not appealable
 May be reviewable in the final appeal but practically rare because:
o Only losing party can appeal
o Must be issue that materially affects the outcome of the case
 Means that can seek appellate review of discovery orders in state courts but likely
not in federal  this contributes to lack of uniformity in discovery law
 Exceptions that Permit Review:
o Mandamus (in state court)
 Elements for Mandamus:
 Clear legal right in the petitioner to the order sought
 Imperative duty upon the respondent to perform,
accompanied by a refusal to do so
 Lack of another adequate remedy AND
 Properly invoked jurisdiction of the court
 Situations for Discovery Review: [from Norfolk Southern]
 Privilege is disregarded
 Compelled production of patently irrelevant or duplicative
documents which are harassment or non-proportional burden
 Sanctions imposed effectively preclude decision on the merits or
deny discovery to party’s position so as to completely determine
the outcome
 Stopped from making a record on the discovery issue
 See Dorsey and Norfolk Southern and Henry
o Put yourself in contempt to trigger appellate review

23
Discovery Outline
 See Hickman – illustrates very rare case that you should do this
o Collateral order doctrine: usually only trade secrets or extraordinary facts

III. INTERROGATORIES
A. Introduction
 Rule 33
 Interrogatory: written question sent to a party, responded to with written answers
o Can’t send these to non-parties
 Scope of Interrogatories
o Rule 33(a)(2): must be within the basic scope of discovery
 Limits of Interrogatories
o Numerically, presumptive limit of 25 in federal court (and 40 in AL state)
o Opposing lawyer is controlling the substantive answers
 What are good/bad uses of these?
o Good: party’s contentions/claims, basic facts, people with knowledge of the
events
o Bad: narrative telling of the party’s story/facts
 Timing of Interrogatories
o Don’t use all of them early on – save some for later and stagger them
o If in AL state court, need to save some for later to fill gap in duty of
supplementation
 Definitely use a contention interrogatory on damages later in the case
B. Preparing and Serving Interrogatories
 Rule 33
 Form: Rule 7
o Caption, sign consistent with 26(g)
 Drafting Interrogatories
o Don’t use form interrogatories indiscriminately
o Interrogatories must be reasonably particularized – not overbroad
o Sufficient so long as it adequately advises the interrogated party of the
information requested
 Instructions in Discovery Requests
o Do not use boilerplate/form instructions
o Generally, only use instructions if useful in particular case for the questions
o Don’t need to repeat rule obligations – unnecessary (unless particular need)
 And focusing on one at expense of others may suggest don’t need to
follow all rule obligations
o Can’t impose additional obligations with rule instructions usually
 BUT instruction may lower the obligations of the responding party
 Instruction to gain additional information may count as an additional
interrogatory
 Definitions in Discovery Requests
o Can be useful to clarify a request/streamline language
 Ex. for car accident case, definition of the car accident at issue as “the
accident”

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Discovery Outline
o But overused and unnecessary for basic words
 Ex. Rule 34 defines documents so your definition may unwittingly
narrow it (or just be invalid)
 Presumptive Limit of 25 Interrogatories
o Presumptive because you must seek judicial approval to go above the limit 
two tiered device
 Or get party agreement to exceeding the 25 limit
o Interrogatories served in state court count even if case is later removed to
federal court
o 25 count “including all discrete subparts”
 Ex. Krawczyk: no definition but count as 2 if “not logically of factually
subsumed within and necessarily related to the primary question”
 Can the first question be answered fully and completely without
answering second? If yes, counts as 2. If no, just 1.
 Question asking about communications of a particular type
should be treated as a single interrogatory even though it requests
the time, place, persons present, and contents be stated separately
 Service: Rule 5
o Rule 5(a)(1)(C): a discovery paper that is required to be served on a party must
be served on every party (unless court orders otherwise)
o Rule 5(b)(1): if party is represented by an attorney, must serve that attorney
o Rule 5(b)(2): can serve by handing it to person, leaving it at person’s office
with clerk or in conspicuous place, or leaving it at person’s “dwelling or usual
place of abode” if no office/office closed and leave with person of suitable
age/discretion who resides there, mailing it to last known address, leaving with
court clerk if no known address, sending by electronic means IF person has
consented in writing, OR any other method person has consented to in writing
C. Responding to Interrogatories
 Rule 33(b), 26(e), 26(g), 29
 Timing
o Party has 30 days to respond after he is served with the interrogatories
 Objection must be “timely” or waived – met if send with responses (have
30 days from when served)
o But Rule 29 allows parties (or court) to change this timing – unless discovery
cut off
 Form
o Rule 33(b)(3): must be “answered separately and fully in writing under oath.”
 33(b)(5): answers are signed by the person answering and attorney signs
for objections
o Put interrogatory question and then your answer/objection right below it
o Two Options: answer or object
 Answer
o Give a substantive response
o Must give full and complete answer (after a reasonable inquiry under Rule
26(g))

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Discovery Outline
 Can’t say “I don’t know” without some investigation but don’t have to do
exhaustive search
 Duty to provide all information available to party, including information
under his control or otherwise obtainable by him
 Control includes your own experts and your lawyers – see Dorsey
 Courts tend to import “possession, custody, control” standard of
34(a)(1) for documents to interrogatories too
 Ex. Auction House: Christie’s must get info from former employee
with agreement to provide info to them as requested. Must
threaten to stop paying him – exhaust means to get a response.
o Former employee is under corp.’s control when agreement
requires him to furnish information
 Rule 33(b)(3): If part of a request is objectionable, must answer to extent
interrogatory is not objectionable
o If party is a corporation, it must answer with its official party position
 Objections
o Must give specific objections and why interrogatory is improper
 Rule 33(b)(4): “grounds for objecting to an interrogatory must be stated
with specificity.”
 Doesn’t have to be long though – just make sure other party knows what
you are objecting to and why
o Boilerplate or general objections are improper
 Ex. of these in St. Paul HB 205
 Some courts say these have no effect because Rule 33(b)(4) says objections
are waived if not timely made [unless good cause]
 Irony is lawyer used them out of abundance of caution but results
in no objections preserved at all
o Burden on objecting party to substantiate its objections
 Need to state grounds and show specifically how each request is deficient
or would cause particular harm
o Objection: Party already has the information they requested
 Improper
 Ex. Krawcyzk: can’t say depo is better way to get information because Rule
26(b)(2)(c)(i) says a party can ask for the same thing in multiple ways
o Objection: Vague
 If you think it is vague, could substitute your own word and answer
 Ex. “engineer” – my answer refers to a “professionally licensed”
engineer and object to extent otherwise
 Ex. Krawcyzk: use of a word with a specific legal meaning for that type of
claim is not vague
 “Global” is not a proper objection
o Objection: Overbroad
 Not in discovery rules – CA says thinks it means irrelevant or not
proportional
o Objection: not admissible at trial
 Improper
o Objection: Irrelevant

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Discovery Outline
 Could be a proper objection (if actually irrelevant)
 Ex. Dorsey:  entitled to steel drum explosion victim’s educational/work
background because relevant to V’s ability to appreciate danger/read
warning.
  can’t evade answering because he personally thinks not useful.
  is entitled to factual basis of ’s claim and all facts that could
prove or disprove his defenses.
o Conditional objection: a party asserts objections but then provides a response
“subject to” or “without waiving” the stated objections
 Improper
 Either there is an objection or not (and you must answer) under Rule 33
 Ex. Hibu: court found waiver for use of conditional objections
o Objections are NOT logged in privilege log – only AC or WP
D. The “Look It Up Yourself” Option of Rule 33(d)
 Rule 33(d)
 Instead of answering an interrogatory, the party can produce its business records
and let the requesting party find the answers himself
 Requirements
o Answer can be found in the business records
o Burden of finding answer is substantially the same for either party
 If requirements met, the party MAY answer by:
o Specifying the records that must be reviewed, in sufficient detail for
requesting party to find the answer as readily as responding party could AND
 M.D. AL: should include relevant compilations, abstracts, or summaries
not prepared in anticipation of litigation
o Giving requesting party a reasonable opportunity to look at the records
 M.D. AL: gives guidelines on what is reasonable for location, time, having
person available to answer questions, etc.
 After process is started, party can ask the court to reconsider the plan
 Going to be a rare situation to use this – often records will have additional
information and you don’t want other side to have access to it
o Doesn’t contemplate situation where there are 10,000 document boxes and
you say answer is in there so look it up yourself – need specific direction
E. Contention Interrogatories
 Rule 33(a)(1) — (2)
 Contention interrogatories: interrogatories that seek to clarify the basis for or scope
of an adversary’s legal claims
o “please state the factual and legal bases for ____”
o Mechanism to flesh out pleadings and legal/factual basis of claims and
defenses
 NOT objectionable merely because interrogatory asks for opinion that relates to fact
or the application of law to fact
o No work product objection for these
o 33(a)(2) clarifies that these are okay (and encouraged by courts)
o Ex. Dorsey Trailers: AL SC affirms that contention interrogatories are proper
and effective to narrow issues. Can ask for legal basis of claim.

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Discovery Outline
 But can’t ask for purely legal conclusion
 Timing
o Rule 33 allows postponing answering these until later time – “until designated
discovery is complete, or until a pretrial conference or some other time.”
o But must answer before trial
 If not, sanction is usually exclusion of the evidence at trial
 What should you use these for?
o In AL state court, damages
o  should flesh out ’s primary contentions and  should flesh out ’s
affirmative defenses
o Use for key issues in the case – pair with Request to Admit
 Use this combination in your motion for summary judgment – can’t do
Celotex without a contention interrogatory [see below]
F. Trial Use of Interrogatories
 Rule 33(c)
 “answer to an interrogatory may be used to the extent allowed by the Federal Rules
of Evidence.”
o Most answers to interrogatories are hearsay
o Some will fall in the party admission exception
 More likely to use the answers to limit the other side by tying them down
 Also great for a targeted summary judgment motion
o Can’t do a Celotex type motion without one
 If you want SJ because  has nothing for certain element, need a
contention interrogatory that forces  to say he has nothing for it

IV. DOCUMENT REQUESTS AND PROPERTY INSPECTIONS


A. Introduction
 Rule 34
 Document request: written request directed to someone to give you an already
existing document/thing
o Thing incudes access to property, destructive testing, etc.
 Scope: 26(b) basic scope of discovery so must be relevant, proportional, not
privileged
o Applies to parties (Rule 34) and non-parties (Rule 45)
 Ex. AIG: can serve document request under Rule 34 on the Pool but must
get Rule 45 subpoenas for individual members of the Pool
 No Presumptive Limit
o Smart because if limit, lawyers would make very broad requests instead of
narrowly tailored requests  has reverse effect of other presumptive limits
o Encourages incremental use of precise requests
 What are good/bad uses of these?
o Good:
 Start with automatic disclosures
 If corporation, request documents on personnel, offices,
technology

28
Discovery Outline
 Start simply – board minutes on key corporate decisions, police reports
 Don’t be really specific on an exact document generally
 Ex. want docs recording the sale of product NOT June 5 P.O.s
 Tie to specific legal contentions in the complaint
 Prior litigation is good to ask about but start with baby steps
o Bad:
 Ask for “any and all” relevant documents
 Stipulate to a limited number of document requests
B. Preparing and Serving Document Requests
 Rule 34
 Form: Rule 7
o Need caption, signature
 Drafting Document Requests
o Rule 34(b)(1): Requirements
 Describe item to be inspected with reasonable particularity
 Specify a reasonable time, place, and manner for the inspection AND
 Details are usually worked out between the parties informally
 May specify the form of production
o To avoid burdensome objection, start narrow and put in your own limits
o Avoid wording that lets the other side interpret request how they want and
instead use neutral, concrete language
 Early Document Requests
o Rule 26(d)(2) allows these
o Served before the 26(f) conference but service is deemed on the day of the 26(f)
conference
o Use for basic building blocks like corporate organization chart, board minutes
 Must state request with “reasonable particularity” such that the responding party
knows what documents it needs to produce
o Test: whether the request places the party upon “reasonable notice of what is
called for and what is not”
 Not met if broad and undirected request for all documents which relate
in any way to the claims/defenses
 Don’t have to state exact doc you want – often working blind so won’t
know this
o Ex. St. Paul:  says no reasonable particularity for: “All documents identified
or relied on in your answer to counterclaim ’s first set of interrogatories.”
 Is there sufficient information to enable the responding party to identify
the responsive documents?
 Court says yes because puts  on reasonable notice even though not
model for specificity
 CA bothered because encroaching on WP and says better to request docs
referred to in interrogatory/deposition
 What can you NOT request?
o Cannot generally require the responding party to create or prepare a
new/previously non-existent document solely for its production
 What can you request?

29
Discovery Outline
o Request can force a party to sign a consent/authorization form so that you can
gain access to party’s personal records
o Some courts say power under Rule 34 and Rule 37 to compel party to sign an
authorization/consent form
 Not creating new document – just signing form for release of records
 Proper channel to do this is document request – not interrogatory
 Records are in their control because party can authorize their release by
consenting or stop by not consenting
 Ex. Mir II:  must sign consent form to allow  access to his S.S.
records because ADA claim would be estopped if he lied on them
 Rule 45 subpoena won’t work because can’t release most records without
individual’s consent
o BUT other courts say improper to use document request for consent form
 Creating new document/signing form not contemplated by the rule
 Not in possession/custody of the records being requested
 So should use Rule 45 subpoena for the record-holder instead
 Service: Rule 5 [see above]
C. Responding to Document Requests
 Rule 34(b), 26(b)(5), 26(3), 26(g)
 Timing
o Rule 34(b)(2)(A) gives party 30 days to respond after request is served
 But parties should cooperate and change as needed under Rule 29
 Which documents do you have to search through?
o Must respond with documents in your possession, custody, or control
o Rule 34 has definition broader than just actual control – contemplates party’s
legal right or practical ability to obtain the materials from a nonparty
o Factors for Control – see Mir II HB 189
 Form
o Two options: produce the responsive documents or object
 Production
o Responding party may state that it will produce copies instead of permitting
inspection
 Rule 34(b)(2)(B): Must give copies no later than time for inspection in the
request or another reasonable time specified in the response
o For ESI, responding party may object to the requested form
 If no form is specified in the request for ESI
 Must state the form(s) you intend to use in the response
 Must produce in form(s) ordinarily maintained OR reasonably
usable form(s)
 If object to the form specified in the request
 Must state the form(s) you intend to use in the response
 Rule 34(b)(2)(E): Responding party has a choice for production:
o As kept in the usual course of business OR
 Not access to actual office, just keep in manila
folder as it was in cabinet/make copy

30
Discovery Outline
o Organize and label to correspond to the categories in the
request
 Responding party does NOT have to produce ESI in more than one form
 Objections
o See above under Interrogatories on objections: need to be specific and state
objection/grounds for it. No general/boilerplate. Burden on objector.
o Rule 34(b)(2)(c): requires party to state if any responsive materials are being
withheld because of your objection – not putting these in privilege log though
o Does failing to particularize an objection constitute waiver?
 Rule 34(b) implicitly creates a presumption that objections not timely
stated in an answer are waived UNLESS good cause
 Confusion over this because of differences in the rules:
o Rule 33(b)(4) for interrogatories states that objection must
be stated with specificity or waived unless good cause
o No similar provision in Rule 34 BUT comments says “Rule
34 is essentially the same as that in Rule 33”
 Policy for favoring particularized objection: counsel can try to
resolve and if not, bring to court’s attention
o Encourages diligence but presumption recognizes time-
pressured environment
 Burden to avoid waiver is on party that failed to particularize their
objections
 Factors for Good Cause:
 Length of delay/failure to particularize
 Reason for delay/failure to particularize
 Any dilatory or bad faith action
 Prejudice to party seeking discovery
 Properly framed request and not excessively burdensome
 Waiver’s effect being excessively harsh
o Objection: outside basic scope of discovery (irrelevant, not proportional)
 *Lots of proportional objections to document requests
 Ex. St. Paul: Social Security docs are relevant to whether  can assert
defense of ADA claim estopped because of them.
 Not overbroad because estoppel is important issue, no other
access to info without consent, no burden in signing release
 Ex. Brown: subpoena for employment records is overbroad because not
tailored to discrimination claims, no temporal limit, could use interrog.
o Objection: request not stated with “reasonable particularity”
 See above on test and St. Paul case
 Need to show objection specifically by submitting affidavits or offering
evidence revealing the nature of the objections e.g.
o Objection: Privileged
 Rule 26(b)(5): Must identify the applicable privilege with requisite
specificity
 *Lots of privilege logs at issue with document requests
o Objection: form/circumstances of production

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Discovery Outline
 Not objecting to producing the documents, objecting to the
location/time/form
 Inspection
o Document Dumps: practice of producing voluminous records so as to obscure
responses, by producing documents without differentiations or designations
of responsive documents so as to correspond to the requested categories
 These are improper! Party cannot use its cumbersome or disorganized
filing system to make it difficult for requesting party to locate the docs
 Even if filing system reflects how party keeps documents in usual
course of business
D. Non-Party Requests and Responses
 Rule 34, 45(a), 45(b), 45(c)(2), 45(d)
 Rule 34(c) says you can send a document request to a non-party – then go to Rule 45
 What can you request from a non-party?
o Narrower than a party because not sure testing/sampling allowed
o “produce documents and tangible things or to permit an inspection”
o Must search documents in non-party’s possession, custody, control – same
standard
o No “reasonable particularity” for requests in Rule 45 but CA says practically
need this
 Where does the subpoenaed person have to take the documents?
o Where lawyer designates in subpoena BUT no farther than 100 miles around
non-party’s resident/place of work
o Non-party’s presence is not required
 Timing
o Objection: earlier of the time specified for compliance OR 14 days after
subpoena is served
 Form of Production
o Subpoena requirements – See above
 Service: Rule 45(b) says hand delivery to subpoeanaed person only
o Must also send a notice and copy of subpoena to every other party
 Responding to a Subpoena for Documents
o Form: usual course of business OR correspond to request
 Can object to ESI form like above for party
o Can object by saying ESI not reasonably accessible but must show this if
motion to compel
o Also does privilege log
o Court may be willing to shift the costs of production to the requesting party to
protect the non-party
 Ex. Guy Chemical: non-party P.O.s for orders not filled requested. Non-
party says $7k to produce these ordinary business records.
 Court orders requestor to pay –doesn’t matter if searching
ordinary things if cost is greater than de minimis
E. Discovery of Electronically Stored Information (ESI)
 Rule 26(b)(2)(B), 34(a)(1)(A) & (C), 34(b)(2)(D), 34(b)(2)(E)(ii) & (iii)
 ESI is now present in almost every case because everyone has phone/computer

32
Discovery Outline
o 2006 amendments addressed ESI but just adapt existing standards to ESI
instead of substantively changing the standards
 In re Cooper Tire: AL SC says use federal rules as model  then 2010 AL
rules amended to provide for ESI
o Must search devices for ESI when you receive a document request UNLESS
request specifically excludes ESI
 ESI is unique
o It is dynamic (changes), large quantity of it and stores for longer, harder to
preserve because of its dynamic nature, and embedded/meta-data
o Lawyers must have a basic knowledge of ESI and maybe even employ
technology expert to comply with professional duty of competence
o Lawyers should discuss ESI at 26(f) conference including: preservation, how
far back for search, embedded/meta-data
 Duty to Preserve ESI
o Party must preserve ESI – comes from criminal law/judicial imposition
 Lawyers should discuss these measures at the 26(f) conference
 Lawyers should put out a litigation hold once triggered
o Duty triggered when suit is reasonably anticipated – not just filing date
o Must take reasonable steps to preserve – not perfection
o Ex. Café Asia: court orders sexually explicit photos preserved and 1  lawyer
designated to view them in employment harassment case
 Form of Production
o Rule 34(b): requesting party can specify form but responding party can object
and state an alternative
 Objections
o Frequently objected to as burdensome/not reasonably accessible because of
cost
 Need to state in object that you did not search ____ because _____
o Usually responding party has to pay to comply with rules BUT cost shifting
may occur with ESI
 Ex. Guy Chemical: court shifted ESI costs from non-party to requestor for
ordinary business records because $7k was not de minimis
 But no attorney fees were awarded because ESI has novel issues
 Sanctions
o Rule 37(e)
o ESI sanctions have been reined in by rulemakers because judges were
overusing adverse jury instructions for losing it
o Threshold Questions (must answer yes to all 3 before moving on):
 1) ESI should have been preserved
 Had duty to preserve been triggered?
 2) Was the ESI lost/destroyed because of lack of reasonable steps?
 3) Can the information be obtained in another way?
 Possibility of subpoena for cell phone provider
o If yes to ALL of the above, then ask:
 Was the loss unintentional?
 If yes, only sanction IF prejudice to other side

33
Discovery Outline
 If prejudice, sanction should be the least amount necessary to cure
the prejudice
 Was the loss intentional?
 Mere negligence is NOT intentional
 If yes, don’t need finding of prejudice to sanction.
 If intentional, possible sanctions include:
o Presume information unfavorable
o Instruct jury information is presumed unfavorable
o Dismiss the action or enter default judgment
o [not limited to above options]
o Ex. Living Color:  lost text messages due to regularly deleting some/getting
new phone but got most of them from the guy he sent them to
 Court declined to sanction – said normal for him to delete messages and
no bad faith/nefarious use of this, no harm b/c most messages given
 Look at the sophistication of the party
F. Social Network Discovery
 Need to tell your client to preserve his social media sites – definitely can’t tell him
to clean it up
o Making things “Private” or locked does not keep them from discovery
o May pursue protective order but also realize on social media means already
told others about it/public at large
 Federal Stored Communications Act: does NOT stop other side from getting social
media information, just need to request other party to obtain it
o So can’t directly ask Facebook for other side’s profile BUT can send request to
other side to obtain/authorize his profile
o Can use Rule 34 request to force other party to give consent to access records
 Ex. EEOC:  is claiming extreme emotional distress from sexual harassment at
work.  requests all of her Facebook and MySpace profiles and pictures.
o Court says  can get access to relevant info on these – not ALL of profile but
also not limited to just relating to the complaint allegations like EEOC says
o Court says anything referring to ’s emotions/mental state or the events

V. DEPOSITIONS
A. Introduction
 Rule 30
 Deposition: interaction of lawyer asking questions and live human answering them
o Differences from Other Devices
 Not written: for either questions or answers
 Witness answers even if lawyer objects
 Duty of supplementation does not apply
 Presumptive Limits
o Rule 30(a)(2)(A)(i): limits number to 10 depositions per side
 Not per party – so if 4 s, they only collectively get 10 depos, not 40
o Rule 30(d)(1): limits length of each deposition to no more than 7 hours each
o Cannot depose a person more than once

34
Discovery Outline
 So if  requests,  needs to depose witness then too
 ANY lawyer can ask questions at a depo – even if other side is deposing
 UNLESS parties agree to re-depose or court orders it
o If party wants more than 10 or longer than 7 hours or to re-depose, must get
other side to agree or court to order it under 30(d)(1)
 Ex. Dunkin Donuts:  gets court to allow depo longer than 7 hours for
corporation’s accountant – seeking finance info for past 7 years, 10k docs
o AL: no presumptive limits on depos
o *Cannot depose a person in prison without a court order
 Scope: 26(b) basic scope of discovery so must be relevant, proportional, not
privileged
B. Initiating Depositions: Timing, Notices, and Subpoenas
 Rule 30(a), 30(b)(1)-(4), 32(a)(5)(A), 37(d)(1)(A)(i)
 2 Phases for Requesting Party
o Decide who to depose – send notice, get subpoena
o Actually take the deposition
 Timing
o Generally, no discovery is allowed until the 26(f) conference
 But then can take a deposition at any time after that
 Lawyers often wait but no rule requires it – sometimes court orders depos
to wait until later
o Some limited circumstances will allow a deposition earlier
 Extremely rare use of a deposition under Rule 27 before suit is filed
 Parties could agree or court could order one before 26(f) conference under
Rule 30(a)(2)
 Witness is leaving the country e.g.
 BUT Rule 32(a)(5)(B) disallows use of an early deposition against a
party if he doesn’t have time to get lawyer before the depo
happens
 Notice
o Do not need court order to take a deposition of a party – just send the notice
 Party includes named parties and higher echelon of entity employees
o Rule 30(b)(1): must give “reasonable notice”
 But Rule 32(a)(5)(A) says a depo can’t be used against a party if it had less
than 14 days notice
 Means that presumptively 14 days is “reasonable notice”
 Location usually depends on local custom but for party, going to be one
of the side’s law office
o Form: Rule 7
 Need caption, signature
 For deposing an ordinary person:
 State the time, place, and method of taking
 [don’t need to say anything about what depo will cover]
 For deposing the 30(b)(6) corporate designee:
 State the time, place, and method of taking
 State the topic, description of what depo will cover

35
Discovery Outline
o Service: Rule 5
 Notice is served on every named party
 Subpoena
o Must send a subpoena to depose a non-party
 Ex. AIG: illustrates can be hard to decide who is a party
 Employees of parties
 Rule 37(d): provides sanctions for failure of party to show up to
depo when properly given notice including party’s “officers,
managing agent, director”
 Means that you need a subpoena for employee who is NOT an
officer, managing agent, or director
o Location: lawyer should go to the non-party
o Form
 Basic subpoena requirements (see above)
o Why should you get a subpoena if the non-party is cooperative?
 No problem if the non-party shows up
 BUT if non-party does not show up:
 Non-party faces no sanctions – no compulsion/force
 You (lawyer who should have gotten subpoena) will have to pay
the other side’s expenses for no-show depo under Rule 30(g)
C. Use of Depositions and Selection of Persons to Depose
 Rule 30(a), 30(b)(1), 32(a), 45(c)(1)
 Selection of Persons to Depose [strategy from CA]
o Named parties on the other side
o Valuable Witnesses
 If you have witness statement, may still need to depose because might
not be able use the statement but can use the depo
o Start with trial subpoena rules and work backwards
 Rule 45(c)(1): can force a non-party witness who lives/works regularly
anywhere in the state to show up to trial – as long as not substantial cost
o Person in no contact ban or says won’t talk to you
 Use of Depositions
 Rule 32(a)
 Subject to FRE and depo is hearsay – need exception
 But can use depo to impeach a live witness
 Can you use a depo as affirmative evidence?
 If depo of a party, can use their testimony substantively
 If depo of unavailable witness
o Unavailable: dead, outside geographic limit, sick, in
prison, no trial subpoena
D. Entity Depositions
 Rule 30(b)(6), 37(a)(3)(B)(ii), 37(d)(1)(A)(i)
 Corporation/entity must designate a person to “speak” for it with its official party
position  spokesperson who will bind the corporation
o Corporation gets to choose who this person will be – might be more than 1
person

36
Discovery Outline
o If someone in corp. you want to talk to (but not designee), go to above about
whether you can depose via notice or need subpoena – ordinary depo rules
 Requesting Party
o Describe with “reasonable particularity” areas of inquiry the deposition will
cover
 Reasonable Particularity is needed to tell the designee how to prepare
 Ex. Reed: not met if add listed areas are not exclusive to notice
 Responding Party [the corporation’s designee]
o Must prepare on topics in notice
 30(b)(6) designee MUST prepare for the depo – unlike ordinary person
who doesn’t have to and can say “I don’t know”
 Affirmative duty to produce designee who can answer questions within
subject matter AND are “known or reasonably available” to the corp.
 Ex. Reed: rule doesn’t require having someone with personal
knowledge
 If designee cannot answer questions within subject matter in notice, corp.
has failed to comply with rule and may be subject to sanctions
o Corporate representative must provide the factual basis for the
claims/defenses asserted by the corporation
 Ex. Dunkin Donuts: suit over whether franchisee  underreported sales.
Does ’s corporate rep. testify about all facts supporting underreporting?
  says WP because only known to lawyer
 Court disagrees – can’t hide facts underlying your claim as WP
 Different if asked for how lawyer did investigation, opinion on
significance of docs or credibility of witnesses
 But says contention interrogatory is more efficient way to get this info
o Corporate representative may have to testify about otherwise confidential
information
 Ex. Dunkin Donuts:  has to say why ex-employee left their employment
because relevant to bad faith franchise termination claim
 Confidentiality agreement does not shield it from discovery
 Can the questioning lawyer go beyond the topics listed in the notice?
o Most courts say yes – King: 30(b)(6) does not limit what can be asked at depo
 Makes sense because party could just re-notice deponent individually
and ask same questions without any objection
 Don’t want corp. to get greater protection than others
 Purpose of 30(b)(6) is to have right person present at depo
 Some say counts as 2 depositions though
 But now the ordinary depo rules apply
 Designee can say “I don’t know”
o But is the position binding on the corporation? Gray area
E. Methods of Taking and Forms of Depositions
 Rule 26(a)(3)(B), 30(b)(3)-(4), 32(a)(6), 32(c)
 Officer of the Court
o Rule 28(a): requires officer be authorized by law or appointed by court

37
Discovery Outline
 But parties can stipulate under Rule 29(a) that another person conduct the
depo  going to stipulate to the court reporter
o Officer is authorized to give oath to witness, certify the accuracy of the depo
 Methods of Taking A Deposition
o Rule 30(b)(2)(A) Options – can choose any UNLESS court order otherwise
 Stenography: person takes down every word said – requires special
training
 Audio OR
 Audio/visual [video]
o Why would you choose (or not choose) a certain method?
 Do you want witness on video seen by fact finder?
 Stenographer can hide a lot – behavior and awkward exchange
 Video will change lawyer’s pace for questioning and harder to edit
o AL Rule 30: if using video, also required stenographer
 Some lawyers wrongly think you need a court order for a video
 M.D. guidelines are wrong when they say need stenographer AND video
 Rule 83 says can’t have local rules inconsistent with FRCP
 Court could order stenographic recording in individual cases
 Requesting Party
o Puts the method of taking in the notice
o Pays the cost for the depo
 But if others want their own copy, they pay for the copy under Rule
30(f)(3)
o Can prearrange the time of the depo while at the same time indicating a
willingness to be reasonable about any necessary rescheduling
 Responding Party
o Rule 30(b)(2)(B): May supplement with additional method of recording
 But he must pay for the additional method
o Party could object to or move for protective order concerning the method
designated in the notice
o Ex. CIA dir. not on video for defamation case b/c public figure and worried
about image misuse
 Use of Deposition At Trial and Method
o Rule 32(c) requires a transcript
 Reference in Rules to “transcript” doesn’t mean you can’t have just video
at depo because you can get a transcript made of a video-only depo
o BUT also says if 5 requirements met, MUST use the non-transcript (video e.g.)
instead of the transcript
 Requirements:
 Non-transcript form is available
 One party requests non-transcript form
 Jury trial
 Testimony used for substantive purpose (not impeachment) AND
 Court does not order otherwise
 Taking A Deposition Remotely
o Rule 30(b)(4) permits deposition taken by “remote means”

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Discovery Outline
 Could be by telephone, Skype, etc.
 Maybe if witness on minor point, far away
o Might save money BUT CA says going to be rare to use this – need to see
witness in person, interact with them
 Written Deposition
o Rule 31
o Created when travel was hard/no technology but obsolete now
o Because you can’t send non-party an interrogatory, could use this device to
get written answers
o Back and forth between lawyers to finalize the questions, then packet mailed
to witness, court reporter/officer reads questions and records the answers
F. Conduct of Depositions: Duration, Examination and Objections, Motions to Terminate
 Rule 30(c), 30(d), 32(b) & (d), FRE 103
 Starting the Depo: Rule 30(b)(5)(A)
o Officer must begin by stating officer’s name and address, date time and place
of the depo, deponent’s name, the oath (or affirmation), and identity of all
persons present at the depo
 Objections
o Lawyer for other party or witness may object to questions
o Purpose: allow the questioner to correct the problem during the depo
 Means you should always listen to objections and have discussion if you
need it – gives you a chance to fix and get admissible answer
o Objections must be stated “concisely in a nonargumentative and nonsuggestive
manner”
 Rule says this to stop coaching the witness by using your objection to tell
the witness how to answer
 Some local rules take this to mean only simple like “object to the form”
 CA says this may not fully and properly state the objection –
doesn’t fulfill the purpose of the objection
 Need to say nature of the form problem like leading, compound
o Under 30(c)(2), witness must still answer the question following an objection
 Preserves the decision later for the judge but answer needs to be available
if court overrules the objection
o BUT lawyer can instruct the witness not to answer:
 1) To stop disclosing privileged information (or WP)
 Questioning lawyer may ask questions to “set the scene” like
getting info that would appear in a privilege log
 Rule 26(b)(5)(B) doesn’t limit to docs/actual logs so must give
enough info to “enable other parties to assess the claim”
 M.D. says don’t have to provide facts in objection, just must allow
questioning lawyer chance to ask questions to elicit these facts
 Ex. Dunkin Donuts: WP does not protect all the facts underlying
the underreporting claim
o But don’t have to say how  intends to prove
underreporting, legal strategy, strengths/weaknesses of
case, or any inferences lawyer has drawn from witnesses

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Discovery Outline
 2) To enforce a limit set by a prior court order OR
 Could come from 16(b) order, 26(c) protective order, or denied 27
motion to compel
 But need some sort of court order BEFORE depo begins
 3) To terminate the depo as abusive pursuant to Rule 30(d)(3)
 Unusual situation where lawyer insists depo be suspended and
immediately files a motion with the court to terminate the depo
 Grounds: bad faith, unreasonably annoys/embarrasses/oppresses
the deponent or party
 Judicial hostility toward motions made during middle of depo
o Waiver of Objections
 Rule 32(d)
 If ground for objection is something that questioning lawyer could cure at
the time of the deposition, the lawyer must make that objection during
the depo [or it is waived]
 “If it can be fixed, you MUST object”
 Cure could be through re-phrasing questions or through further
questioning
 CA says make all known objections during the depo because court
may not later agree with your categorization
 BUT lawyers mistakenly rephrase the rule as form vs. non-form:
 Objections to the form are waived if not made during depo but
other objections are not waived and can be made later
 Objection to the form could be corrected at the time with
rephrasing the question  understandable for shorthand
 BUT while relevance objection not normally curable, might be a
case where relevance could be established with more questioning
o SO in this case, failing to object would be a waiver
o Ex. Broadbent: relevance could have been fixed with more
facts on the record, competence could have laid foundation
 *Rephrasing does not focus on distinction Rule makes of curable
 Usually these objections are NOT waived: competence, relevance,
materiality
 Usually these objections are waived: form of question, leading question,
compound question
 Ex. McKelvy v. Darnell: lawyers stipulate that all objections except those to
the form are preserved for trial. Depo of doctor but lawyer doesn’t object.
 Then introduce depo at trial and lawyer objects by saying no
proper foundation laid.
 Court says that objections were waived because could have
corrected if objection had been made at depo – follows Rule not
stipulation of “form”
o Conferences During Depositions
 Generally, lawyer can’t talk privately with his witness before he answers
a question
 Unless “setting the scene” for privilege

40
Discovery Outline
 Lawyer should only talk substance before the depo starts – and
maybe during lunch or break but probably not
 If witness is breaking down or not following the rules, lawyer can call a
break to remind them – or to give them a break if getting sloppy/tired
 Ethical duty to stop false testimony
G. Other People Attending Depositions
 Rule 26(c), FRE 615
 Anyone can attend a deposition as long as at least one party allows them to do so
o Why does it matter that one party allows it?
 If both parties object, essentially agreeing to exclude and outsider would
have to get court order to attend
o If other party objects, outsider may attend unless/until objecting party moves
for court to order exclusion under Rule 26(c)(1)(F)
o If only third party witness wants outsider there, could move under Rule 45
 Rule 30(c)(1) states that FRE 615 does NOT apply to depositions
o FRE 615 allows the court to exclude witnesses from trial so they don’t hear
other testimony
 If request is made, court must exclude
 Except for a party (or party designee), witness whose presence is
essential, person authorized by statute to be present
 Because FRE 615 does not apply, suggests that anyone can attend a depo
o FRCP 26(c)(1)(E) supports this because gives court power to exclude people
from depo
 Implication is that absent an order, permissible for others to be there
o If outsider is a potential witness, M.D. suggests that lawyer should give the
other side notice so he could seek a protective order to stop it
 Don’t do what lawyer did in depo transcript supplement!
o Lawyer said that summer law clerk for other side had to leave a depo. Forced
other side to call judge. Judge got mad and clerk was allowed to stay.
H. Investigation and Preparation for Depositions and Talking to Witnesses
 Rule 26(g), MRPC 3.4(b)
 No affirmative duty for an ordinary deponent to prepare for depo
o Rule 26(g)’s “reasonable inquiry” requirement does not apply
o Can say “I don’t know” or “I don’t recall” – even if he could have learned the
answer through a simple inquiry
 Preparing A Client for His Deposition
o Lawyers will choose to prepare their client for the depo
 Explain basic process of a depo and basic skills of answering questions
 Usually also discuss substance of the case, may include docs/other depos
o Lawyer cannot knowingly help/induce client to commit perjury – crime and
violates MRPC
 But also need to be careful not to unwittingly cause client to distort or
falsify his testimony
 Tell them repeatedly to tell the truth and only on matters they have
person knowledge of
o Can’t coach them but can suggest how they phrase things

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Discovery Outline
 Ex. tell doctor to talk like a normal human, not medical speak
 Can tell witness how to show up to depo/clean up appearance
o Is this dep prep privileged?
 Probably protected by attorney-client privilege if made in confidence,
UpJohn met
 Preparing A Non-Client For His Deposition
o MRPC 4.2: If the witness has a lawyer, must go through him for dep prep
 MRPC 4.3: If no lawyer, may still prepare but follow ethical rules
 Be clear you are NOT their attorney – not confidential
 Can’t give legal advice
o Is this dep prep privileged?
 Probably NOT covered by attorney-client privilege
 Except maybe former managerial employees of corp. client
 Some courts say this is intangible work product protected under Hickman
BUT others say not protected
 Conversation is not doc/tangible thing so no Rule 26(b)(3) but
maybe falls under WP of Hickman
 But conversation is directed at the deponent – not the lawyer
o CA says maybe intangible WP if lawyer is deposed and
asked what he did for dep prep. Not sure about non-party.
o *Do NOT show a non-client privileged doc in dep prep because disclosing to
an outsider destroys the privilege = waiver
 Are the documents shown to the deponent privileged? [for clients AND non-clients]
o No universal rule on this for dep prep – very case specific balance of need to
access doc vs. concerns of AC/WP
o Ex. Sporck: Third Cir. said lawyer’s selection of key documents for dep prep
culled from massive doc production was WP: mental impressions
 FRE 612 requirements not met here for “all docs reviewed in prep”
because too global – lawyer didn’t show requirements
 Need a witness with NO recollection before using 612 but not met if ask
for all docs – maybe met if more specific request for a doc that refreshed
o FRE 612 says an opposing lawyer may get to see docs when witness uses them
to refresh his recollection and testifies to that recollection
 In a trial, as a matter of fairness, other side needs doc for cross
 If recollection refreshed BEFORE testifying, other lawyer MAY get access
if court orders it
 Requirements:
 Witness actually use the doc to refresh his recollection
 Witness refresh recollection for purpose of giving testimony AND
 Court determines that justice requires production of doc
I. Review and Changes to the Depositions
 Rule 26(e), 30(e) & (f)
 Review of Depositions
o Witness reviews the transcript and make any changes on an “errata sheet”
ONLY IF party or deponent requests the review
 But witness is NOT required to do this under FRCP

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Discovery Outline
 Some states, like AL, require witness review and signature
o Request for review must come before deposition is “completed”
 Rule 30(b)(5)(C): officer must announce that depo is “completed” which is
seemingly last moment that request can occur with automatic right to it
 Could later ask party to agree to review
o If review is requested:
 Witness has 30 days to review the depo after officer has notified the
witness that depo record is available
 If witness has changes, must sign a statement listing his changes and
“reasons for making them”
o Should you request a review?
 False Testimony: MRPC 3.3
o Lawyer cannot use false testimony from a deposition
o Lawyer has ethical duty to correct false testimony
 Duty to correct false testimony in least harmful way to your client
 CA says might apply to non-client when you know testimony is
false – definitely can’t use it and probably need to correct it
 Least harmful way could be doing witness review
 Changes to Deposition Testimony
o What changes can a witness make?
 Not just typographical errors
 Rule 30(e)(1)(B) allows witnesses to make “changes in form or substance”
 Ex. Hambleton Bros.: unique case where  missed review deadline,
tried to make substantive changes right after  moved for SJ
o Not saying can’t have substantive ever, saying not here
o If witness makes substantive changes, what is the impact of those changes?
 Open up possibility of other side re-deposing the person
J. The “Usual Stipulations”
 Do NOT agree to these UNLESS they are individually specified
 No such thing as “usual stipulations”
o No universal, defined meaning that lawyers can articulate – so don’t know
exactly what you are agreeing to or if other side knows exactly what he is
agreeing to
 Not a bad idea to waive some depo technicalities but depends on each case AND
need to specify what you are waiving
 See separate chart on critiquing the M.D. Guidelines

VI. MENTAL AND PHYSICAL EXAMS


A. Introduction
 Rule 35(a)
 Routine in personal injury cases, so parties usually just agree
 Purpose: allow adverse party to have their own expert assess the person’s condition
 Can be intrusive – draw blood, take photos of body, biopsy, X-ray, etc.

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Discovery Outline
 BUT this is the ONLY device that requires a court order before you can get it
B. Requirements
 Party – not available for non-party
o UNLESS person is in a party’s legal custody/control (like minor child in
paternity case BUT not employee)
 Person’s CURRENT condition is in controversy
 Good Cause (not another way to get it like looking at old x-ray)
 Timely motion and showing
C. Who put the condition at issue?
 If  claiming personal injury,  put it at issue
o But if divorce where wife says “husband is crazy” not put at issue with merely
inflamed allegations
 Ex. Schlagenhoff: bus crash victim want driver  examined neurologically
o Court says no because  put it at issue, not 
D. Procedure
 Party requesting the exam gets to pick the examiner
 Can be debate over type of exam, who is doing it, etc.

VII. REQUESTS TO ADMIT


A. Introduction
 Rule 36, 37(c)(2)
 Request to Admit: discovery tool to narrow issues for trial by asking other side to
concede something
o Ex. Admit this contract is valid/document is genuine/[key fact]
o Hybrid of a pleading and an interrogatory
 Pair with a contention interrogatory (and document request) that says:
o If answer is anything other than an unequivocal yes, state the factual/legal
basis for your denial.
 Mechanics are like an interrogatory for caption, written, etc.
B. Timing
 30 days to respond after service
 Typically used near the end of discovery to prepare for summary judgment or trial
 No numerical limit on these but by order or local rule, a court can limit them
o CA says capable of abuse but goal of efficiency not met with a cap
C. Effect of Response
 Admit: admit solely for the purpose of this lawsuit
o Admit is binding for this case (unless court allows you to amend/withdraw)
o Not responding = admit
 Denial
o Rule 37(c)(2) makes you think about denying because shift costs if you deny
something that other party has to spend time proving
 But Courts aren’t prone to give costs
 Ex. Joseph: “Admit not enough time to stop.”  CA says not artful
o Using outs of “not perfect match” to avoid cost shifting

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Discovery Outline
o Says 37(c) “proving” is not the same as SJ saying no
genuine dispute of fact – wiggling to avoid shifting costs
o But if core issue, you are going to deny it – costs won’t deter
o Lack of information = denial
 But can only say this after “reasonable inquiry” under 26(g) and could be
sanctioned for improper use (like denial)
D. Objections
 Rule 36(a)(5)
 NOT a legitimate objection that it covers something “genuinely in dispute”
o Have to answer to crux of case like “Admit light was red.”
o But if you really think it is in contention, you will deny it.
 Court less likely to shift costs because “reasonable grounds to think you
will prevail.”
 Could object to relevance, proportional, AC/WP, vague, etc.

VIII. AUTOMATIC DISCLOSURES


A. Introduction
 Rule 26(a)(1), 26(a)(3), 26(e), 26(g), 37(c)(1)
 Automatic Disclosures: information that parties must exchange without request
(automatically)
o AL does not have these, FRCP only added in 1993
 But in AL state court, use FRCP as model for your discovery
 Anywhere in FRCP that says “disclosure” are referring to these because
“disclosure” is a term of art – NOT any response, 26(a) automatic disclosures
 Three Sets
o Initial Automatic Disclosures
o Experts: can get opinion/report of other side’s experts
o Immediate Pre-Trial Disclosures: witness lists, exhibit lists, witness by depo
B. Evolution of Initial Automatic Disclosures
 Rulemakers wrote these to cover things they thought all lawyers were asking for
anyways (basic information) to speed up and narrow discovery
o But lawyers did not like these at first because not request-based so thought it
would erode “real” discovery
 1993 FRCP let local districts opt out and most did, so 2000 removed opt-out to make
them uniform
 FRCP version are fairly modest – contrast with Arizona which has really broad
C. Mechanics
 For timing, just know these are the first things you are supposed to exchange
around the time of the 26(f) conference – but can stipulate to different time
 You could stipulate out of these by party agreement or court order (not a standing
local rule)
o But CA says don’t do this!
 Duty to supplement attaches to these
D. Subject Matter of Initial Automatic Disclosures
 Damages Breakdown

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Discovery Outline
o Doesn’t have to be in complaint but do have to disclose it here AND include
all documents on it
o Not limited to favorable things to party
 Insurance
o Want parties to know any coverage, can encourage settlement, know limits
o If in AL state court, use a document request to ask for liability insurance
policy
 People with Knowledge of Events  list of important people [like interrogatory]
o BUT only if disclosing party may use them to support its claims/defenses
o UNLESS solely for impeachment
 Important Documents [like document request]
o BUT only if disclosing party may use them to support its claims/defenses
o UNLESS solely for impeachment
o Don’t have to actually produce the docs, could just describe by
category/location
 But other side than use a document request to get these
E. People with Knowledge/Important Docs
 Contrast with Arizona and 1993 version to see how modest FRCP are
o AZ: person who knows anything relevant to lawsuit, any relevant documents
 Lawyer has to decide what is relevant (do work for other side)
o 1993: people with knowledge of facts particularized in the pleadings
o 2000: people with knowledge of facts that disclosing party may use to support
its claims/defenses
 HYPO: Lawyer finds a bartender who says the pilot was drinking before the crash.
Does the lawyer have to automatically disclose the receipts and bartender’s name?
o AZ: YES, relevant to subject matter
o 1993: DEPENDS on complaint
 Complaint 1: pilot was negligent.
 No particularized facts  NO disclosure
 Complaint 2: pilot was drunk and caused accident.
 YES
 *Shows that if  knows to plead these facts, he would know to ask
for this information anyways, so very modest disclosure
o 2000: NO, lawyer is not going to use the bartender/receipts for pilot’s defense
 *Shows how narrow automatic disclosures are now  they are one-sided
 BUT if lawyer had found a favorable witness, would have to disclose
o BUT REMEMBER: can get bartender’s name/receipts with an interrogatory
asking for “Anyone with knowledge of what the pilot was doing for 8 hours
before the accident.”
F. Sanctions
 Rule 37(c) says that if you don’t disclose, can’t use it at trial
o Will hurt your case because only have to disclose “good stuff”

IX. DISCOVERY MOTIONS, SANCTIONS, AND PROTECTIVE ORDERS


A. Introduction
 Rule 26(b)(2), 37

46
Discovery Outline
 Motion for discovery actions usually falls under Rule 37
 But any rule that requires leave of the court needs a motion
o Think any two-tiered device
 HYPO to consider for all the motions below:
o  has sent a request.  has said no.
B. Motion to Compel Discovery (MTC)
 Rule 37(a), 26(c), 45(d), 45(e)
 What is motion seeking?
o Order forcing the other side to give me/do something
o Like answer interrogatory, produce docs, show up for depo
o (a) compel automatic disclosures
o (b) compel a discovery response
 Procedure
o Motion MUST include a good faith certification that you tried to work it out
before you filed MTC
o “Speaking motion” so just a few pages, not a separate brief
 Cut to the chase with factual/procedural history and request/response –
don’t waste space with the rules
  can file memo in opposition too – might also include MPO
 Outcomes/Sanctions
o If court grants MTC
 Costs shifted to  to pay for what it took  to make the motion
o If court denies MTC
 Costs shifted to  to pay for what it took  to defend the motion
o Rule says MUST shift costs BUT exceptions that courts often apply
 Loser’s position was “substantially justified”
 Means that if you had merely justified position, costs still
shifted encourages pause to think
o If loser’s position was frivolous  sanction under 26(g)
C. Motion for Protective Order (MPO)
 Motion for Protective Order (MPO)
 What is motion seeking?
o Order stopping other side from making me give/do something
 Court can forbid discovery on the matter
o This is the reverse mirror image of a MTC
 If non-party – use motion to quash (MTQ)
 Why would you ask for this?
o If going to come up in depo AND don’t want answer out there at all
 In depo, witness answers anyways so event if court denies a MTC, won’t
stop
 Need court order to prevent having to answer
o If expect to be a recurring issue MAYBE – but discuss at 26(f)/16(b)
o If you are NOT in control of the response: depo, co- or non-party responding
 But generally, not going to affirmatively ask for this. Why?
o Could create worse position because if bring MPO, Court could deny it AND
order you to produce that info

47
Discovery Outline
o If pending request,  can serve objection and withhold the information – don’t
have to do anything else unless MTC granted
 Procedure
o Need good faith certification
 Outcomes/Sanctions
o Court can shift costs like 37(a) – loser pays unless substantially justified
D. Motion to Quash (MTQ)
 Rule 45
 Non-party who doesn’t want to do what subpoena asks will use this motion
o If party who wants to stop something in subpoena, not really MTQ, going to
file a 26(c) motion to stop  CANNOT just object
 If document subpoena only
o Serve objection on the issuer (in 14 days)
 That’s all you have to do. Now burden on issuer to get MTC.
 If depo subpoena
o Must make a MTQ
E. Sanctions for Non-Compliance with Court Order
 Rule 37(b), 45(g)
 Court has ordered something and  says no still  defying a court order
o Not ethically professional to defy a court order in most cases
 This is NOT a second step, this means there WILL be sanctions
o Question is what sanction will be.
o Courts usually give 2nd/3rd chances so they can have repeated failures to infer
willfulness
 Possible Super Sanctions:
o Matter covered by order is deemed as established
o  can’t present evidence to support/oppose the designated claims or defenses
o Strike pleadings (in whole or in part)
o Stay further proceedings until order is obeyed
o Dismiss the action (in whole or in part)
o Default judgment
o Contempt of court
 BUT can’t do this if disobeying order to submit to physical/mental exam
 Ultimate penalty = dismissal of case
o USSC says only should use for highly culpable behavior (but nothing in rule
says this)
F. Other Discovery Sanctions and Motions
 Rule 37(c), 37(d), 26(g), 30(g)
 If party fails to disclose or supplement
o Sanction = not allowed to use that information or witness you were supposed
to disclose or supplement
 Routine sanction – not draconian
 Ex. Stallworth: new documents show up in SJ reply brief
 Court strikes these documents but doesn’t shift costs

48
Discovery Outline
 CA doesn’t like it conflating “reasonable position” with
“substantially justified” [reasonable in 26(g) means no further
sanctions]
o Says should shift costs if “reasonable position” but don’t if
“substantially justified”
o Incentivizes producing information
 Ex. important for damages claim – if don’t disclose, can’t establish
damages
o Creates a backstop for things party couldn’t even know existed so stops
surprises
 But only no “good stuff” surprises because bad stuff not covered
o Party can say “solely for impeachment” so don’t have to disclose
 BUT if usable for impeachment and a substantive purpose
 Ex. Lomascolo: dual purpose but not disclosed. Court said can still
use but only for impeachment – not for other purpose
 If TOTAL failure to respond (think silence,  does nothing)
o Rule 37(d)
o 37(d)(1)(A)(ii): says “fails to serve” = gives nothing
 Contrast with 37(a)(3)(B)(iii)/(iv): “fails to answer” = didn’t give the
answer that requesting party wanted BUT did serve objection/something
 *If evasive/incomplete response, going to fall under 37(a) – NOT this rule
 If SOMETHING is served, even if unclear, go to 37(a)
 Doing nothing is worse because rules require you to respond somehow
o HYPO: request for all sex discrimination claims but  doesn’t want to include
Tulsa plant
 Proper response:  objects by saying Tulsa irrelevant. Produce other
claims but sit on Tulsa.
 Fall under 37(d) IF instead:  ignores request and doesn’t send anything
o Procedure
 Requires good faith conference before
 May not be responding because you messed up (bad service e.g.)
 Usually going to file 37(a) MTC and ask for super sanctions under this too
o Some super sanctions possible but not all of them
 NO contempt – can’t have contempt without a court order to do
something
 If FRIVOLOUS response
o Rule 26(g)
o Can come from motion by other side OR court sua sponte
o What could be frivolous?
 Improper objections – like boilerplate/legalese
o Subject to “any appropriate sanction” so can include super sanctions
 Sanction depends on how egregious
 Ex. Suzuki: cost-shifting for ALL discovery
 Sanction can be non-monetary (deterrent motivation)
 Ex. St. Paul: court made lawyer write bar journal article for
boilerplate objections

49
Discovery Outline
 If failure to attend depo
o Rule 30(g)
o If the noticing lawyer doesn’t show up
 Cost shifted for other side’s expenses in attending the depo
o If non-party that you were supposed to subpoena but didn’t AND non-party
doesn’t show up
 Cost shifted for other side’s expenses in attending the depo
 AND non-party MAY be held in contempt
 BUT courts use the out of no contempt if “adequate excuse”
 If failure of non-party to comply with subpoena
o Contempt citation possible but unlikely
o Document request: just have to serve objection
o Depo request: move to quash OR do nothing and risk 30(g) contempt sanction
o If noticing party puts in unreasonable requirements, cost-shifting
 If failure to participate in discovery planning
o Rule 26(f)
o Can sanction for failure to participate/cooperate in good faith
o Unlikely though unless didn’t show up to 26(f) conference e.g.
G. ESI Sanctions
 Rule 37(e)
 Amended to stop courts from sanctioning for this because judges were being really
harsh
o Impossible to preserve ESI since it is dynamic so now only sanction if really
bad
o See Living Color for example of procedure at work
 Requirements (need all 3 to get to possibility of sanction)
o Duty to preserve had attached (reasonably anticipate litigation)
o Loss of ESI was due to a failure to take reasonable steps
 No litigation hold in place
o Loss of ESI can’t be cured through other means
 If ALL 3 met, only sanction IF prejudice to other side OR even if no prejudice, if
intent to deprive
o If prejudice to other side
 Sanction = measures no greater than necessary to cure the prejudice
o If intent to deprive (regardless of prejudice)
 Possible Sanctions:
 Presume lost ESI was unfavorable to party
 Instruct jury that it may/must presume it was unfavorable OR
 Dismiss the action or enter default judgment

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