Discovery is the process of uncovering relevant facts through identifying witnesses, documents, and other items that can lead to establishing those facts as admissible evidence. Pre-litigation investigation is covered in Chapter 4.1 of this MANUAL. This chapter discusses the formal tools of civil discovery, the methods for protecting against unwarranted discovery and motions to compel permitted discovery.
6.2.A. The Scope of Allowable Discovery
The Federal Rules of Civil Procedure specify the general parameters of allowable discovery in a lawsuit. (Amendments to the Federal Rules of Civil Procedure that went into effect on December 1, 2015, significantly changed Rule 26(b), in particular the definition of "relevance." This chapter will be updated accordingly, but in the meantime, advocates are advised to review these changes.) Rule 26(b)(1) specifies the following, “unless otherwise limited by court order”:
. . . Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense, including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).1
As a threshold matter, the Rule establishes a broad scope of allowable discovery. The U.S. Supreme Court discussed the oft-quoted rationale for this standard in an early case:
We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent's case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise.2
The Court has reiterated this broad standard, stating that it “has more than once declared that the deposition-discovery rules are to be accorded a broad and liberal treatment to effect their purpose of adequately informing the litigants in civil trials.”3 At the same time, the Court has also directed that the requirement of relevance of material sought in discovery should be “firmly applied.”4
Rule 26(b)(1) reflects these competing considerations. It addresses them in three basic ways. First, unless limited by court order, parties are entitled to discover “any nonprivileged matter that is relevant to any party's claim or defense.” The practical scope of discovery is broad, as it includes “the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” Second, upon a showing of “good cause,” parties may seek the intervention of the court to attempt to broaden the scope of discovery beyond matters relevant to claims or defenses, to “any matter relevant to the subject matter involved in the action.” Third, whether pertinent to claims or defenses or to the subject matter of the case, “relevant information” is not circumscribed by evidence that will be admissible at trial, as long as “the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”5
The initial standard of presumptively allowable discovery relevant to claims and defenses and the need for parties to seek court intervention, upon a showing of good cause, to expand this scope to matters relevant to the subject matter of the action reflects a compromise between the competing claims of discovery being either overbroad or necessary to develop the case.6 There is no precise dividing line between discovery that is relevant to either claims or defenses, or to the subject matter of the action. The good cause assessment is “meant to be flexible,” and will depend on the circumstances of the pending action.7 For example, information about “other incidents of the same type,” although “not directly pertinent to the incident in suit,” could still be considered relevant to the claims or defenses raised in the action. Similarly, information potentially usable to impeach a witness, “although not otherwise relevant to the claims or defenses, might be properly discoverable.”8 The difference between the two standards, “while meaningful, is not dramatic, and broad discovery remains the norm.”9 The “relevance” standard itself remains broad.10
Rule 26(b)(1) effectively establishes a bi-level framework for discovery:
[The Rule has] . . . implemented a two–tiered discovery process; the first tier being attorney–managed discovery of information relevant to any claim or defense of a party, and the second being court–managed discovery that can include information relevant to the subject matter of the action. Accordingly, when a party objects that discovery goes beyond that relevant to the claims or defenses, “the court would become involved to determine whether the discovery is relevant to the claims or defenses and, if not, whether good cause exists for authorizing it so long as it is relevant to the subject matter of the action.” The good–cause standard is intended to be flexible. When the district court does intervene in discovery, it has discretion in determining what the scope of discovery should be.11
Thus, the initial scope of discovery is determined by the parties, as they frame their claims for relief or defenses. However, the Rule also “signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings.”12
The district court in Thompson v. Department of Housing and Urban Development expressed a utilitarian approach that emphasizes the parties’ cooperation in mutually framing, if possible, the scope of discovery:
Lest litigants and the court become consumed with the philosophical exercise of debating the difference between discovery relevant to the “claims and defenses” as opposed to the “subject matter” of the pending action—the juridical equivalent to debating the number of angels that can dance on the head of a pin—the practical solution to implementing the new rule changes may be to focus more on whether the requested discovery makes sense in light of the Rule 26(b)(2) factors, than to attempt to divine some bright line difference between the old and new rule. Under this approach, when confronted with a difficult scope of discovery dispute, the parties themselves should confer, and discuss the Rule 26(b)(2) factors, in an effort to reach an acceptable compromise, or narrow the scope of their disagreement.13
The Rule 26(b)(2) factors referenced by the Thompson court further provide for direct court involvement in potentially limiting the scope of discovery. The Rule specifies three considerations which, if present, require the court to limit the scope of otherwise permissible discovery. Rule 26(b)(2)(C) states:
On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.14
Rule 26(b)(2)(C) grants courts the discretion to weigh the burden or expense of proposed discovery against an assessment of its likely benefit, considering the needs of the case and the importance of the discovery in resolving the issues. The Rule “places an obligation on the trial court to limit the frequency or extent of discovery otherwise permitted by Rule 26(b)(1) based on a balancing analysis” that is “written in mandatory terms.”15 Courts have “considerable authority to limit a party's pursuit of otherwise discoverable information where the burden of a discovery request is likely to outweigh the benefits.”16 This coincides with the general direction of Rule 26 that “vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery.”17
The purpose of the Rule is to “promote judicial limitation of the amount of discovery on a case–by–case basis to avoid abuse or overuse of discovery through the concept of proportionality.”18 This doesn’t necessarily mandate that the parties or the court must undertake a detailed assessment of the merits and their relationship to the discovery needs of the action. “In general, it seems that the proportionality provisions should not be treated as separate and discrete grounds to limit discovery so much as indicia of proper use of discovery mechanisms; they do not call for counsel to undertake complex analysis.”19 Nor is it a “warrant to implement personal views about the importance of issues raised.”20
Nevertheless, advocates should anticipate arguments citing the factors of Rule 24(b)(2)(C), as reasons for limiting or denying discovery requests outright. Be prepared to demonstrate that your discovery request is a timely, reasonably tailored, and legitimate inquiry into matters which critically relate to the issues raised by the action.
6.2.B. Mandatory Initial Disclosures
In most cases, Rule 26(a)(1)(A) requires each party at the outset of litigation to automatically make significant, self-executing “initial disclosures” in writing, without waiting for formal discovery requests from the opposing party. Parties must identify individuals likely to have discoverable information and documents (including electronically stored information, discussed more fully below) “that the disclosing party may use to support its claims or defenses.” If applicable, the disclosure must also include a computation of damages and information regarding insurance agreements.21 The names of disclosed individuals must include the subjects of the information they possess. The documents themselves, or their description and location, must be provided, as long as the disclosing party has them in its possession, custody, or control. “Use” of documents or information possessed by individuals is broadly construed to include use in discovery, to support a motion, or at trial, but it excludes information used solely for impeachment.22
This mandatory disclosure requirement does not apply in three situations:
- if the parties stipulate not to make such disclosures;
- if otherwise directed by court order; and
- in certain categories of proceedings, the most significant of which, for purposes of legal services litigation, is “an action for review on an administrative record.”23
A “major purpose” of the initial disclosure requirements is to “accelerate the exchange of basic information about the case” which is “needed in most cases to prepare for trial or make an informed decision about settlement.”24 Since plaintiff's counsel has made a pre-filing investigation of the case, ordinarily little additional searching will be required to comply with the Rule 26(a)(1) mandatory initial disclosure requirements . The burden of initial disclosure will often rest in large part on defense counsel, who must relatively quickly perform an investigation of the claims in the complaint and potential defenses . The information found would serve as the basis of initial disclosures, as parties must make their disclosures based on "the information then reasonably available to it."25 Failure to fully perform an investigation does not provide an excuse for failing to make any initial disclosures. Neither does the failure of the opposing party to make its own adequate disclosures.26
Failure to make these disclosures will result in exclusion of the material that should have been disclosed at a hearing or trial, or on a motion, unless the failure was substantially justified or harmless.27 Rule 37(c)(1) also states The rule also states that “in addition to or instead of this sanction,” the court may order payment of reasonable expenses, including attorney's fees caused by the failure, and may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)–(v).28 Therefore, "[c]ounsel who make the mistake of treating Rule 26(a)(1) disclosures as a technical formality, rather than as an efficient start to relevant discovery, do their clients no service and necessarily risk the imposition of sanctions.”29 Courts have used variations of five factors to determine whether evidence should be excluded for failure to timely disclose it earlier: "(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence."30
Noting the lack of many rulings on the form or degree of specificity needed to comply with the initial disclosure requirements of Rule 26(a)(1), the Seventh Circuit in Robinson v. Champaign Unit 4 School Dist., stated that “the advisory committee notes . . . emphasize that the ‘disclosure requirements should, in short, be applied with common sense’ to help focus the attention on the ‘discovery that is needed, and facilitate preparation for trial or settlement’; the new rule is not intended, however, to encourage litigants to ‘indulge in gamesmanship with respect to the disclosure obligations.’”31
The initial disclosures must be signed and served “at or within 14 days after the Rule 26(f) conference unless a different time is set by stipulation or court order,” or unless a party otherwise objects to making the disclosures.32 The Rule 26(f) conference, discussed below, must be held at least 21 days before a court scheduling conference is held or a scheduling order is due. Additional disclosures later in the case are mandated by Rule 26(a)(2) (expert testimony) and 26(a)(3) (pretrial disclosures). These disclosures are usually governed by an order of the trial court.
A party has a general duty to supplement or correct initial disclosures “if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.”33 The supplemental disclosures must be made in a "timely manner” or as ordered by the court.34
Advocates will need to carefully assess their options when receiving inadequate initial disclosures from the opposing party. Depending upon the nature and critical need at the outset of litigation for these disclosures, the expense, delay and effort necessary for a challenge to their sufficiency will need to be weighed against seeking the information through other discovery devices.35
6.2.C. Written Discovery
Although discovery methods “may be used in any sequence” unless modified by court order,36 interrogatories, as well as requests for production, are often used as initial tools to begin the discovery process.
Interrogatories can be directed only to other parties, who then have thirty days to respond.37 Interrogatories propounded on one party must be served on each party, unless the court orders otherwise.38 Filing discovery requests and responses with the court is prohibited, except in connection with pretrial motions or at trial or the court orders filing.39 Examples are attachments to motions to compel, for protective orders, or for summary judgment.
Interrogatories are generally useful for two purposes. First, they can be used to seek foundational, factual information to establish a basis for subsequent discovery by a request for production or by deposition. Thus, interrogatories typically seek the addresses and names of persons having knowledge of relevant matters, the identity of people having certain authority or occupying certain offices, the existence, location, accuracy and authenticity of documents and reports, statistical data or summaries, and other objective facts underlying the claims or defenses of the action.
Second, contention interrogatories can be used to ask parties to state their contentions and their factual bases for them. Properly phrased, contention interrogatories may be a very useful tool to probe the theories of the opponent's case or defense. Such interrogatories may not inquire into a party's view on the pure question of law, but may ask for a party's opinion regarding a fact or how the law applies to a particular fact.40 A court may permit a party to answer contention interrogatories later in the litigation, or when discovery is complete.41
Rule 33(a) limits the number of interrogatories that may be served upon any other party to 25 , “including all discrete subparts,”42 but parties may stipulate to extending the allowable number, or the court may alter this limitation consistent with Rule 26(b)(2)(C).43 Advocates should plan the sequencing and use of interrogatories with care; do not waste the limited opportunity to use interrogatories on questions of marginal value. Effective interrogatories are short, to the point, and unambiguous. Interrogatories should be preceded by clear instructions and precise definitions of potentially ambiguous words.44 They should be drafted to anticipate and avoid useless responses and valid objections. If possible, they should require the opposing party to give some relevant elaboration to the answers. Good interrogatories commit the opposing party to clear answers or information. Remember that, although interrogatories are directed to a party, an attorney prepares the answers. Broad, unstructured interrogatories give opposing counsel an opportunity to provide answers framed in the best possible light for their clients. Before serving your interrogatories, test them by trying to frame an objection to each one and by trying to compose an answer that would be responsive but useless.
All written discovery requests, disclosures, responses, and objections must be accompanied by the signature of an attorney of record or a pro se party.45 Signing incorporates a certification, based on “the best of the person’s knowledge, information, and belief formed after a reasonable inquiry.”46 A discovery disclosure includes the certification that it is “complete and correct as of the time it is made.” Discovery requests, responses and objections must be consistent with the Federal Rules of Civil Procedure, warranted by existing law or a nonfrivolous argument to change the law, must not be interposed for improper purposes such as harassment or delay, and must not be unreasonable, unduly burdensome, or expensive.47 The court is directed to impose sanctions if a discovery certification violates the Rule without substantial justification.48
Unless altered by stipulation or court order, a responding party must serve its answers and any objections to interrogatories within 30 days after having been served.49 Rule 33(b)(3) directs that each interrogatory, to the extent not objected to, must be answered separately and fully in writing under oath.50 Interrogatory answers must be signed by the person making them – ordinarily, the party to whom they are directed – and objections must be signed by the attorney.51 Under Rule 33(b)(1)(B), corporate entities and governmental agencies may answer by any officer or agent, “who must furnish the information available to the party.”52
A failure to sign is not just “harmless error.” The mandatory signature requirement is significant, because an interrogatory answer can constitute admissible evidence, in the form of an admission of a party opponent.53 In reality, although it’s generally “improper for the party's attorney to answer” interrogatories, “undoubtedly the common practice is for the attorney to prepare the answers and have the party swear to them.”54
Evasive or incomplete disclosures and responses to interrogatories, as well as to requests for production, discussed below, “are treated as failures to disclose or respond.” Neither “should not be read or interpreted in an artificially restrictive or hypertechnical manner to avoid disclosure of information fairly covered by the discovery request, and to do so is subject to appropriate sanctions….”55 A party answering an interrogatory may declare, under oath, that it lacks knowledge about what is being asked.56 A party is generally charged with knowledge of what its agents know, what is in records available to it, or even information others have given to it that it intends to rely on in the action. An interrogatory answer “is sufficient if the answer as a whole discloses a conscientious endeavor to understand the question and to answer it fully . . . A party cannot limit its interrogatory answers to matters within its own knowledge and ignore information immediately available to it or under its control.”57
Generally, “interrogatories spawn a greater percentage of objections and motions than any other discovery device.”58 Rule 33 addresses this in two ways. First, each interrogatory must be answered “separately and fully in writing under oath” to the extent it is not objected to. Objecting to part of one interrogatory is not a valid reason to defer answering the rest.59 Second, grounds for objecting to an interrogatory “must be stated with specificity. Any ground not stated in a timely objection is waived” unless excused by the court for good cause.60 Courts have enforced the burden of parties to demonstrate specific grounds for interrogatory objections.61
A common objection to interrogatories is that answering them would allegedly be unduly burdensome. The objecting party must do more than merely assert burden; it must specify the nature of that burden.62 An interrogatory response that requires research by the responding party is objectionable only if “the research required is unduly burdensome and oppressive.”63 The district court also has broad discretion to determine, under the proportionality rule governing the scope of discovery discussed above, whether the search for responsive information would be unduly burdensome.64 Courts have generally denied objections to interrogatories based on the information being equally available to both parties, such as matters of public record.65 Rule 33(d) allows a responding party the option to provide business records, including electronically stored information, as an answer to an interrogatory under specified circumstances. This option is available if “examining, auditing, compiling, abstracting, or summarizing” the business records will yield a proper response, and the burden of deriving or ascertaining the answer from these records is substantially the same for both parties. The responding party is then allowed to answer by specifyingthe responsive records in sufficient detail to allow them to be located and identified as readily as the responding party could and giving the party serving the interrogatory a reasonable opportunity to examine, audit, or inspect the documents, including making copies, compilations, abstracts, or summaries.66 The purpose of this provision is in part to provide a remedy for interrogatories “which require a party to engage in burdensome or expensive research into his own business records in order to give an answer.”67
As with Rule 26(a)(1) initial disclosures, parties and their attorneys have a duty to timely supplement or correct answers to interrogatories if they learn “that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.”68
6.2.C.2. Requests for Production of Documents
Federal Rule of Civil Procedure 34(a) permits a request from an opposing party to “produce and permit the requesting party or its representative to inspect, copy, test, or sample” documents, including electronically stored information, as well as “tangible things” that are in the responding party’s “possession, custody or control.” Generally, the responding party may either produce requested documents or permit them to be inspected and copied. Like interrogatories, Rule 34 requests for production can be directed only to parties.69 Rule 34 governs such requests whether filed separately or in conjunction with a deposition.70 Unlike interrogatories and depositions, the federal rules do not impose any numerical limits on the number of requests for production. Advocates should consult their court's local rules for any potential limitations . Generally, requests for production cannot be propounded until the Rule 26(f) conference is held, unless authorized by stipulation or court order.71 Rule 34 defines “documents” expansively, to include “writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations.”72 It also expressly includes electronically stored information, which is discussed below. The responding party must produce material within its possession, custody or control, which includes records in their actual possession, custody, or control, or in the possession of others from whom the party has a legal right to demand their return.73 The concept of “control” is not tied to legal ownership or actual physical possession. “‘[D]ocuments are considered to be under a party's ‘control’ when that party has the right, authority or ability to obtain those documents upon demand.’”74 The “agency” aspect to Rule 34 can require a party to produce a document turned over to counsel.75 The party seeking production of documents bears the burden of establishing the opposing party’s control over those documents.76
Rule 34(b)(1)(A) requires that requested documents be described by “item or category of items” with “reasonable particularity.” This will often be a matter of practical degree, since the requesting party may not know enough about the types of documents the opposing party has, to allow much precision in designation or description. Whenever possible, advocates should avoid simply making generic requests, for example, of “all relevant documents” or documents that "reflect noncompliance with” a particular statute or regulation . These types of blanket requests may easily fail to put the responding party on notice of what is requested so that they are able to identify responsive documents.77 They may also lend themselves to unhelpful responses, since the opposing party will likely have an entirely different interpretation of documents that are generically “relevant” or reflective of “noncompliance.” Make requests as reasonably specific as you can, and include requests describing documents by category or conduct. Ask for production of original documents together with copies that contain any notes or changes, as well as all subsequent versions of the documents that are not identical to the initial one.
Rule 34(b)(2) requires the opposing party to object, with reasons, or file a written response within 30 days of service that states "that inspection and related activities will be permitted as requested.”78 Counsel often fail to file the required written response to each request, assuming instead that actual production of the documents is all that is required. Insist on a written response describing what is or is not being produced. This should help guard against the later appearance of a document not previously produced. If your request is carefully drafted , you may be able to exclude from evidence subsequently-produced “surprise” documents clearly encompassed within its terms. The response may also indicate that requested documents do not exist—a fact that may be significant in establishing an element of a legal claim such as discriminatory intent or a pattern and practice of statutory noncompliance.79 Follow up these responses with requests for admission to confirm the nonexistence of the documents.
The response to a request for production may be an objection or a motion for a protective order.80 As with objections to interrogatories under Rule 33, objections to Rule 34 requests for production “must be stated with particularity in a timely answer, and . . . a failure to do so may constitute a waiver of grounds not properly raised, including privilege or work product immunity, unless the court excuses this failure for good cause shown.”81 It is within a court’s discretion to determine that an untimely objection, or failure to state a reason for an objection, constitutes a waiver. Untimely objections based on vagueness or undue burden are likely to lead to a finding of waiver.82
Objections must include supportive reasons. If the responding party objects to part of a request, it “must specify the part and permit inspection of the rest.”83 Conclusory objections of vagueness or undue burden “are, standing alone, meaningless and fail to comply with . . . Rule 34' s requirement that objections contain a statement of reasons. A party objecting on these grounds must explain the specific and particular way in which a request is vague, overly broad, or unduly burdensome. In addition, claims of undue burden should be supported by a statement (generally an affidavit) with specific information demonstrating how the request is overly burdensome.”84 The Ninth Circuit has held that a boilerplate privilege objection is insufficient and identified many factors for lower courts to consider when deciding if the responding party's failure to produce a privilege log within thirty days constitutes a waiver of the privileges asserted.85 In addition, as discussed above, if the objection asserts that the requests are burdensome or unduly burdensome, the court is likely to balance the need for the information by the party seeking discovery with the harm to the party opposing it.86
Rule 34 does not expressly obligate the responding party to provide copies at its own expense. If the expense of copying documents is at issue, you may offer to do the copying. If the expense is related to reviewing the respondent’s files, you may offer to undertake the review.
Parties may respond to a request for production by producing a “document dump” - a large volume of irrelevant, unreviewed, unsorted materials and documents. This violates Rule 34(b), which requires the producing party to either “organize and label” documents to correspond with the categories in the request, or to otherwise produce them as they are “kept in the usual course of business,” unless otherwise stipulated to or ordered by the court.87 A motion to compel production regarding a response that clearly violates the obligation to particularize a responsive documents can lead to court intervention to allow relief. A court should order the respondent to particularize the response and may ultimately impose sanctions on a party who fails to do so.88 Motions to compel are discussed below.
A primary goal of production requests is to generate admissible evidence, potentially at summary judgment and at trial. Although parties often stipulate to the authenticity of documents that they produce, this may sometimes be in doubt. In such a case, the requesting party may later submit requests for admission to establish authenticity, or may seek to authenticate the documents at a deposition. Both discovery methods are discussed below.
As with initial disclosures and interrogatories, parties and their counsel have a duty to supplement or correct responses to requests for documents “if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.”89
6.2.C.3. Requests for Admission
Requests for admission issued pursuant to Federal Rule of Civil Procedure 36 are a useful but often underutilized tool. They are written requests for the admission of “the truth of any matters within the scope of Rule 26(b)(1)” for purposes of the pending action only.90 These matters include: “facts, the application of law to fact, or opinions about either . . . and the genuineness of any described documents.” As with interrogatories and requests for production, they may only be directed to parties.91 Unlike interrogatories, the number of requests for admission is not limited by the federal rules but may be limited by court order or by local court rule.92
Rather than being discovery devices designed to uncover facts, requests for admission are instead a means to define and limit the matters in controversy between the parties.93 Requests for admission are intended to relieve the parties of the time and cost of proving facts that will not be disputed at trial.94 Carefully drafted requests for admission are precise and phrased to allow them to be admitted or denied.95 They may cover facts or mixed questions of fact and law, but not pure questions of law.96 Authority is split as to whether requests for admission seeking interpretations of documents are improper.97
Although documents produced in response to a request for production can sometimes be authenticated through use of the party’s written reply, a better practice may be for the discovering party to request that authenticity be admitted.98 This request must attach a copy of the document, unless it is otherwise furnished or made available to the opposing party.99 A request for admission may quote a document and asks the responding party to admit that the document contains the material quoted. In that case, the request should be admitted if the quotation is accurate and denied if it is not. Similarly, if the request for admission paraphrases a document, the request should be admitted if the paraphrase is accurate and denied if it is inaccurate. It is insufficient to simply object that the document “speaks for itself.”100
Rule 36(b) states: “A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended.”101 This “constitutes a binding judicial admission that . . . [a] court must deem conclusively established.”102 A request for admission is deemed admitted, if it is not answered or objected to, in a signed writing served within thirty days after service of the request.103 Once a fact is admitted, it is comparable to an admission in a pleading or a stipulation drafted by counsel for use at trial. It cannot be rebutted by contrary testimony.104
A court may permit a party to withdraw or amend an admission “if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits.”105 Trial courts have discretion to grant relief to a party from its admission, but have been admonished to exercise that discretion cautiously. Rule 36(b) is permissive, not mandatory. The first half of the test is satisfied if upholding the deemed admission would practically eliminate the need for a presentation on the merits. The second half of the test focuses on prejudice the nonmoving party would suffer in increased difficulty of proving its case at trial, such as the unavailability of key witnesses and an emergency need to obtain evidence.106 In allowing the “potential safe harbor” of withdrawal or amendment, the court must specifically consider the goals of “truth-seeking in litigation and efficiency in dispensing justice” inherent in the Rule.107
Rule 36(a)(4) further provides that “an answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.”108 While a denial must “fairly respond to the substance” of the requested admission, the responding party is also allowed in “good faith” to “qualify” an answer, or to qualify or deny part of the matter and specify which of the remainder is admitted.109 Stating its grounds - which cannot solely include that “the request presents a genuine issue for trial” - the responding party may also object to the requested admission.110
The propounding party may move to compel if unsatisfied with the sufficiency of the answers or objections given. If the court determines that a response is noncompliant with the Rule, it can either order that the matter is admitted, or compel an amended answer.111 Subject to specified conditions, a requesting party that later has to prove the truth of a matter or the genuineness of a document previously addressed under Rule 36 may seek reasonable costs, including attorney's fees, if the responding party failed to make the appropriate admissions.112
Federal Rule of Civil Procedure 30 permits a party to take an oral deposition under oath of any person, including individuals who are not parties. A deposition is, in essence, a conversation between an attorney and a witness that probes his or her knowledge, perceptions, understandings and opinions about the case under oath. A deposition may have two functions: to discover facts and opinion and to preserve testimony for trial. The latter is known as a de bene esse deposition and is governed by Federal Rule of Civil Procedure Rule 32. Generally, depositions may not be taken until the parties have had their Rule 26(f) conference.113
Absent stipulation of the parties, Rule 30(a)(2)(A)(i) limits parties to ten depositions without having to obtain leave of court,114 and the number of depositions may potentially be limited further, consistent with the principles of Rule 26(b)(2) governing the scope of discovery, discussed above.115 When organizations are deposed pursuant to Rule 30(b)(6), discussed below, each person designated as a witness of the entity should be subject to a separate presumptive seven-hour time limit on his deposition,116 and multiple Rule 30(b)(6) depositions of the same entity should be regarded as only one deposition against the presumptive limit of ten.117
The Rule limits each deposition to one day of seven hours of actual deposition time (excluding breaks), unless the parties otherwise agree or the court allows additional time. This durational limitation is presumptive. It does not require continuous questioning for seven hours: “This limitation contemplates that there will be reasonable breaks during the day for lunch and other reasons, and that the only time to be counted is the time occupied by the actual deposition.”118 It is expected that parties and deponents will generally be able to make reasonable accommodations to avoid the need for court intervention. This may include arrangements that alter the single-day proviso, if the parties are agreeable.119
If court intervention is sought, a court “must allow additional time” for the deposition, consistent with Rule 26(b)(2), discussed above, “if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.”120 A party requesting that the court extend the seven-hour limit must generally show good cause, which may include, for example: (1) the need for an interpreter; (2) the need to examine the witness about events occurring over a long period of time; (3) the need to question the witness about numerous or lengthy documents; (4) the examination reveals that documents have been requested, but not produced; (5) the need for the deponent’s own attorney to ask questions, and (6) the need to fully explore the theories upon which an expert witness relies.121
As a result, advocates are advised to engage in some planning in advance of a potentially lengthy deposition. Advocates should consider discussing the possible need for longer depositions of some witnesses during the Rule 26(f) conference. The parties could potentially agree that certain specified depositions warrant more time, with the remainder subject to the one–day, seven-hour limitation. Advocates are further advised to facilitate time-efficient depositions by sending documents to the witness’s attorney to review in advance. If the witness fails to adequately prepare by reviewing and becoming familiar with the documents, there may be grounds for asking for an extension of the time limit or sanctions, or both. Similarly, advocates should ask the deponent to produce subpoenaed documents in advance of the deposition; this should allow preparation of appropriate questions and may alleviate the need to exceed the time limit.122
Depositions can be enormously helpful to learn facts and opinions, memorialize witness perceptions and opinions through testimony taken under oath, and develop evidence needed for summary judgment and trial. However, legal aid attorneys recognize that they are expensive and the importance of depositions should be prioritized to comport with budgetary limitations. Unlike other discovery tools, depositions may be taken of any witness, and, unlike answers to interrogatories and requests for production, responses in depositions come directly from witnesses or parties, without screening or filtering by opposing counsel.123 Because a deposition may be accompanied by a subpoena duces tecum, it also serves as a method of document discovery from nonparty witnesses.124
6.2.C.4.a. Taking Depositions
Depositions of parties are arranged using a notice of deposition that is served on all parties. The notice is relatively straightforward. It must designate the time and place for the deposition, and the name and address of the person to be examined, if known. If not known, it must provide a general description sufficient to identify him or the particular class or group to which the witness belongs.125 To avoid scheduling conflicts, consult opposing counsel in advance to determine an agreeable time. The deponent’s attendance may be compelled by subpoena.126 Although the Rule does not specify, a subpoena is not required if the person to be examined is a party; service of the notice on opposing counsel is sufficient.127 If the party is a corporation or governmental entity and you are unsure whom to depose, you can, as described further below, instruct the party to designate witnesses with knowledge of the areas into which you propose to inquire.128
Depositions must be conducted before an officer authorized to administer oaths.129 The notice must state the method of recording the deposition, with costs to be borne by the party taking the deposition.130 No court order is required to record a deposition by audio or audio-visual recording unless the local rules require traditional stenographic recording.131 When stenographic transcription of the deposition is not required, these alternative methods may offer cost advantages. Depositions by telephone should be considered when long distances are involved, but an obvious drawback is the inability to observe the deponent in person. A video-conferenced deposition may be especially useful if a visual demonstration is needed and may be used in jury trials if the witness is not available.132 The parties may stipulate, or the court may order, that depositions be taken by telephone or “other remote means,” such as video-conferencing, Skype, or similar methods.133 Because the rule states that the deposition occurs where the deponent, not the attorney, is located, the reporter must be located with the deponent.134 Parties must give “reasonable written notice” of a deposition.135 Courts have not routinely addressed the amount of advance notice that might be before a deposition is taken, since much depends on the circumstances of the case. Rulings have ranged from two days being determined unreasonable, to six or eight days being approved.136 The court has the power to issue a protective order, discussed below, specifying the time or place on which discovery can be had.137 Advocates should, whenever possible and consistent with any limitations contained in local rules, try to schedule depositions at mutually accommodating times with opposing counsel.138
Depositions ordinarily take place in the office of the deposing party’s attorney. The deposition of a corporation by its agents and officers, however, is usually taken at its principal place of business, subject to considerations of expense.139 Taking a deposition at the opponent's office is sometimes useful if the witness refers to documents that are located on-site and may be made available following a break in the deposition.
A deponent can be compelled to bring documents and other materials to the deposition. If the deponent is a nonparty, the documents designated for production are set out in a subpoena duces tecum and additionally listed in the deposition notice or an attachment.140 If the deponent is a party, the notice of deposition “may be accompanied by a request under Rule 34 to produce documents and tangible things at the deposition.”141 Advocates should be mindful of the 30-day response time for document production under Rule 34, which may impose a delay in the case of compelling party deponents to bring documents with them to the deposition.142
Sequestration of other witnesses or potential deponents during a deposition is not routine.143 A court may issue an order “designating the persons who may be present while . . . discovery is conducted.”144
At the beginning of the deposition, the deposing attorney should ask the witness whether they reviewed documents in preparation for the deposition and, if so, ask that the witness identify those documents. Determine whether all of the documents have been produced. If some have not, request production of the documents.145
6.2.C.4.a.2. Practice and Strategy
In preparing for a deposition, begin by defining your objectives. Is your primary goal: (1) to determine what the witness knows; (2) to establish a basis for impeaching the witness at trial; (3) to learn the details of the adversary’s case in order to prepare better to rebut it’ (4) to commit the witness to testimony favorable to your position for a record for summary judgment? Whatever your goal, you should prepare for the deposition by outlining a series of questions or areas of inquiry, checking off each question or area as you cover it. Do not, however, fall into the trap of asking only questions developed in advance; you must listen carefully during the deposition to the deponent’s answers. Inevitably the answers you get will suggest questions that you did not think of before the deposition. Be prepared to depart from your outline when necessary, so you can thoroughly explore lines of questioning suggested by the deponent’s answers.
Depositions often open with two sets of preliminary rituals. The first generally concerns stipulations, some of which may vary with local practice. If the opposing party is requesting the “usual stipulations,” be sure to ask, at the outset, precisely what is encompassed by them. Some attorneys propose stipulations that are already mandated by the Federal Rules of Civil Procedure unless otherwise stated. For example, irregularities in the notice and defects in the qualification of the officer before whom the deposition is taken are generally waived, unless objection is made prior to the deposition.146 Proposed stipulations may also waive the witness’s right to review and sign the deposition transcript or recording. Federal Rule of Civil Procedure 30(e) requires that the deponent be allowed 30 days to review the transcript or recording, if requested by a party or by the deponent before completion of the deposition. The deponent is further allowed to sign a statement listing “changes in form or substance” in the transcript or recording, along with the reasons for making them.147 Do not permit your own witness to waive review and signature because doing so may prevent him from amending, correcting, or revising by affidavit his testimony before trial.148 At the same time, be sure to monitor attempts by an opposing party’s witness to use an “errata sheet” to make substantive changes in deposition testimony beyond simply typographic or transcription errors.149
The second preliminary but very important ritual is for the deposing attorney to state certain ground rules to the witness. You should introduce yourself and indicate the party whom you represent. After the reporter swears the witness, explain to the witness on the record that the testimony is under oath and must be both accurate and complete. Instruct the witness that if the witness does not understand a question, the witness should say so in response, and you will rephrase the question. Similarly the witness should be advised to explain or clarify any answer that the witness feels needs explanation or clarification. This not only helps prevent embellishment of testimony at trial but also may give you leads for additional inquiry. Explain to the witness that an answer must be given by spoken words and not simply by a gesture, nod, or “mmhmm.” Ask whether there is any reason why the deponent cannot testify fully and accurately, including whether the witness has recently taken any medications or is experiencing an illness.150
Experience teaches that, if possible, depositions are best conducted in an accommodating, collegial manner. The best deposition is one in which the witness cooperates. A hostile, abrasive, or overbearing manner discourages cooperation. A confused, interrupted, belligerently conducted deposition often does not generate a useful transcript. Moreover, it solidifies hostilities and may impede settlement. As the deposition unfolds, and as you assess the nature of the information you obtain, you may decide to sharpen your questioning strategy from open-ended information gathering questions to more closed questions designed to challenge the witness.
Do not settle for evasive or ambiguous answers from deponents. Ask follow-up questions and insist on responsive answers. Remember that a reporter cannot transcribe accurately when several people speak simultaneously. Do not allow opposing attorneys to answer questions by using “speaking” objections, discussed below, which allow them to effectively testify or target a preferred response for the deponent. To assure the production of a useful transcript that captures relevant and valuable information, be cautious about agreeing to opposing counsel’s attempts to use the informal setting of the deposition to “go off the record.”
The first objective in most depositions is to discover what the witness knows. To further that objective, begin the deposition much like an interview, by having the witness identify herself, her position, background, and and by detailing what she did or experienced relevant to the case. Inquire of the witness’s knowledge about other witnesses, the parties generally, and potential sources of evidence. After allowing the witness to give narrative answers to questions framed to elicit elaboration, you should go back through the testimony, pinning down dates, locations, persons present, documentation, and other ways of fixing the testimony and using it as a source for further investigation or discovery. Only then should you seek, if at all, to confront the witness with adverse examination, particularly that which develops motive or exposes hostility. Along the way, acquaint the witness with matters developed previously through discovery or produced by the witness in response to a subpoena duces tecum. Ask the witness to identify the matters, agree with and substantiate them, or indicate her inability to do so and explain why.
Mark in advance with an exhibit number all documents you intend to use during a deposition. You will be identifying these documents for use at the deposition. They are not being offered as evidence for purposes of dispositive motions or for trial. Have at least three sets of marked documents—one for the witness, which the reporter should retain, one for opposing counsel, and one for yourself. To ensure that the transcript is clear, always refer to documents by their exhibit number. If you intend to question a witness about a document, determine whether your local practice requires such documents to be provided to counsel for the witness in advance. Practice varies by jurisdiction.
Objections to the deponent’s competence, or to the relevance or materiality of testimony can, but need not be made during a deposition. They are waived only if the ground for the objection could have been corrected before or during the deposition.151 An objection to an “error or irregularity” during a deposition is waived if not timely made during the deposition, and it “relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time.” Examples potentially include objections that the question: (1) is ambiguous, vague, or unintelligible; (2) is compound; (3) calls for speculation; or (4) assumes facts not in evidence.152 “Since substantial objections” based on competence, relevance and materiality “are not waived by failure to make them, the examination should not be unduly lengthened or obstructed by interposing objections of this type.”153 Objections should ordinarily be limited to those subject to being waived, if not made at the time of the deposition.154 Once an objection to the form of the question is made, the examining attorney can ask an amended question in an attempt to overcome the objection, or let the original question stand. If the examining attorney lets the question stand, the deponent must answer, although this may involve a risk that the question and answer is stricken at trial, if the objection is ultimately sustained by the court.155 Advocates must weigh these factors at the time of the deposition questioning.
Because many objections are not waived and are preserved for trial, the deposing attorney should seek during the deposition to respond, if possible, to the objection by curing any defect, such as a defect regarding the form of the question. An objection that is not cured may preclude the use of the answer at trial. There are behavior norms which attorneys should observe during depositions: “[i]n general, counsel should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer.”156 Rule 30(c)(2) states that an objection at the deposition “must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection.”157 The Rule further instructs that objections “must be stated concisely in a nonargumentative and nonsuggestive manner.”158 Some attorneys engage in a common obstructionist technique that goes beyond merely stating the basis for an objection, to make “speaking” objections in a manner that offers the witness hints or outright instructions as to how to respond. “Depositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and colloquy, often suggesting how the deponent should respond.”159 This tactic is not permissible.160
Advocates should resist another frequently encountered tactic used by defending counsel to request frequent breaks between questions and answers, in order to confer with the witness. Some courts have strictly held that "conferences between witness and lawyer are prohibited both during the deposition and during recesses" unless “the purpose of the conference is to decide whether to assert a privilege."161 Other courts have rejected a bright line rule barring all witness-lawyer conferences during the deposition, instead holding that defense counsel may privately confer with the deponent during a recess that counsel did not request, as long as a question is not pending, and at any time for the purpose of determining whether a privilege should be asserted.162 Advocates should object to efforts of defending counsel to interrupt ongoing questioning by attempting to recess the deposition to impermissibly coach and rehabilitate the witness. While some courts may not recognize a categorical prohibition against all attorney-witness communications during the deposition, “a deponent and the deponent's attorney have no absolute right to confer during a deposition in a civil proceeding, except for the purpose of determining whether a privilege shall be asserted.”163 A deponent who does not appear to understand a question, or who may need some terms further defined or some documents further explained, should be directed to ask the deposing lawyer to clarify or further explain the question. “After all, the lawyer who asked the question is in a better position to explain the question than is the witness's own lawyer.”164 If the defending attorney persists in recessing the deposition and conferring with the deponent, consider a line of questioning, upon resumption of the deposition, about the communications that ensued between her and counsel during the deposition break.165
Opposing counsel may attempt to curtail questioning altogether, by instructing a deponent not to answer. This is permissible only when necessary to preserve a privilege, to enforce a court-ordered limitation, or to present a motion to terminate or limit the deposition on grounds that it is being allegedly conducted in bad faith, or in a manner unreasonably annoying, embarrassing, or oppressing the deponent or party, or otherwise pursuant to the factors of Rule 26(c), discussed above.166 “It is inappropriate to instruct a witness not to answer a question on the basis of relevance.”167 It is also impermissible to instruct a witness not to answer and simply allege, as grounds, that the question was posed in bad faith or for purposes of harassment or annoyance. Instead, the attorney issuing the instruction bears the burden of promptly moving for a protective order.168
If faced with opposing counsel’s instruction to the deponent not to answer, whether or not on the grounds of alleged privilege, ask a series of questions designed to elicit the factual basis for the objection and request that the opposing attorney state the basis on the objection on the record. That explanation may be unpersuasive and subject to reversal by the court, or offer insight on how to obtain the information sought without objection. If the asserted grounds are improper, remind counsel of the requirements of the Rule.
While it is not improper to raise reasonable, non-waivable objections, counsel are prohibited from engaging in “Rambo” obstructionist tactics designed to block efforts of the questioning attorney from obtaining any meaningful testimony from the witness.169 “Because depositions take place in law offices rather than courtrooms, adherence to professional standards is vital, for the judge has no direct means of control.”170 Rule 30(d)(2) allows the court to impose a sanction, including reasonable attorney's fees and expenses, “on a person who impedes, delays, or frustrates the fair examination of the deponent.”171 Cases of particularly egregious attorney misconduct can lead to significant sanctions. For example, the court in Horton v. Maersk Line, Ltd, addressed counsel’s “manipulatively abusive, caustically unprofessional conduct” at a deposition, which “unquestionably frustrated the fair examination of [the deponent] . . . with a barrage of arrogant, irrelevant, accusatory questions and caustic comments that no witness, let alone a young man with no legal training, should have to endure. He constantly threatened [the deponent] . . . with a criminal prosecution (one reminder that the laws of perjury apply is quite enough) and peppered him with off-point questions….”172 As a result, in addition to prohibiting the use of the prior deposition for any purpose in the case, the court ordered the following restrictions on the attorney, upon re-deposition:
1. No threats or attempt to intimidate [the deponent] . . . in any manner, including but not limited to, threatening him with prosecution for perjury.
2. No question shall contain an opinion or narrative about what is fair to [the plaintiff], . . . much less what a wonderful person (family man, etc.) he is.
3. (The deponent] . . . shall otherwise be shown respect. Questioning shall be free of insults and comments about his educational background, his employment, his parents, or any other aspect of his life.
4. This second . . . deposition shall be at the expense of all attending parties, but it shall also be videotaped, and that extra (videotaping) expense shall be absorbed by [the attorney] . . . personally, not his client.173
Advocates may choose to either continue the deposition in the face of improper conduct by opposing counsel, making a record for a potential motion to compel, as discussed below, or, alternatively, adjourn the deposition immediately to pursue this remedy.174 The federal judge or magistrate judge assigned to the case (or in the district in which the deposition is held) may make herself available to resolve these types of disputes, sometimes by telephone. In some jurisdictions, however, interrupting a deposition to move to compel may delay the deposition for weeks or months as you await a ruling on your motion to compel. If possible, learn the local practice from other counsel or the judge’s clerk before deciding whether to interrupt a deposition.175
6.2.C.4.b. Defending Depositions and Preparing Witnesses
Four key steps in preparing your witness to be deposed are: (1) review your entire file, including pleadings and prior deposition transcripts, to anticipate questions that the witness will be asked; (2) meet with the witness to review the deposition process, including the preliminaries and breaks, and the facts and documents about which you expect her to be asked, including the most difficult issues that are likely to be covered; (3) iconduct a mock cross-examination of the witness. Try to keep this practice session as formal as possible, with a person acting as a court reporter. Consider videotaping the session; (4) Advise the witness how to dress for and conduct herself during the deposition. A sample set of instructions is set forth in the footnote.176
When defending a deposition, counsel will have to determine whether and when to make an objection. As discussed above, certain objections may be waived if not made, and thus should be made if appropriate.177 Problems with the form of the question, such as their being compound or misleading, can be corrected immediately, and may well be waived if not objected to on the record.178 Non-waivable objections, such as those based on relevance and hearsay, are noted for the record and the witness will answer notwithstanding the objection. The strategic use of legitimate objections may be highly useful . An objection may signal to the witness to be cautious before responding to the question, or may give her an opportunity to think through her answer more carefully before giving it. On the other hand, advocates can also signal a weakness in their case by pointedly objecting to a line of questioning. Instructing a witness not to answer a question should rarely be necessary, except when the inquiry intrudes into privileged areas, to enforce a limitation imposed by the court, or to present a motion under Rule 30(d)(3), as discussed above.179
In defending a deposition of your client or of a friendly witness, you must also decide whether to ask questions at the conclusion of direct examination. Although many lawyers, reasoning that explanations or rehabilitation may be offered at trial, forgo “redirect” of their witnesses, do not automatically decline this opportunity. Whenever the examination of your witness produces damaging testimony that can be promptly explained, you may want to obtain the explanation in redirect. A later explanation is not precluded, but it is more easily dismissed as the work of the lawyer than one elicited during the deposition on the very same day as the apparently damaging statement. Waiting until trial to rehabilitate your witness is particularly hazardous for three reasons. First, an explanation offered at trial, after your witness has been impeached or even in anticipation of impeachment, may look contrived. Second, before trial, the deposition of your witness may become part of an adverse motion for summary judgment. Should that happen, your witness will have no other opportunity to testify, although an explanatory affidavit may be permissible, at least if the witness noted a correction on his deposition errata sheet. Third, adverse deposition testimony alters the settlement dynamic, which can be rebalanced if the witness is successfully rehabilitated.
The witness may create an errata sheet to potentially amend deposition testimony, when the transcript is submitted to herm for review, but, under Rule 30(e), submission to the witness occurs only if the deponent or a party affirmatively requests it before completion of the deposition and such request must be noted in the officer's certificate.180 It is best not to waive signing and review of the transcript by your client. Rule 30(e) permits the deponent to make “changes in form or substance” in his transcribed testimony,181 although courts have interpreted the Rule differently.182 To be effective, however, the changes must be supported by reasons and must be made within thirty days of submission of the transcript to the deponent.183 The changes are appended to the deposition, although the court may order, as a safeguard in a case where substantive changes are made, that the original deposition answers must remain part of the record, potentially to be read at trial.184 Advocates should weigh whether substantive changes will ultimately be less convincing to the trier of fact than the original deposition testimony.
6.2.C.4.c. Depositions of Organizations
Federal Rule of Civil Procedure 30(b)(6) provides a mechanism for deposing knowledgeable individuals who are authorized to speak on behalf of organizations or government entities.185 A Rule 30(b)(6) deposition differs in significant respects from a regular deposition. It allows you to name as the deponent, in a deposition notice or subpoena, “a public or private corporation, a partnership, an association, a governmental agency, or other entity." The deposition notice must “describe with reasonable particularity” the topics of examination.186 This triggers the obligation of the named organization to “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf” to appear at the deposition on behalf of the organization. This designation may, but is not required to, set forth the matters on which the designee will testify. The person designated by the entity “must testify about information known or reasonably available to the organization.”187
One purpose of the Rule is to prevent having to take serial depositions of organizational witnesses who profess to lack knowledge of relevant facts. It is designed to curtail the practice of an organization exploiting its size and complexity by “bandying” the deposing counsel about from one witness to another, “each disclaim[ing] knowledge of facts that are clearly known to persons in the organization and thereby to it.”188
Admissions of these individuals are regarded as admissions of the entity on whose behalf they are testifying.189 “Rule 30(b)(6) allows an organization to designate an individual to testify on its behalf. The testimony provided by a corporate representative at a 30(b)(6) deposition binds the corporation.”190 This confers a duty upon the corporation to adequately prepare the deponent, which includes a good faith effort to designate knowledgeable persons for the Rule 30(b)(6) deposition. If the designated persons do not possess personal knowledge of the matters specified in the deposition notice or subpoena, the corporation is obligated to prepare the designees to allow them to give knowledgeable and binding answers for the entity.191 If the designated witness does not have knowledge regarding one or more of the topics identified for deposition, the entity must select additional witnesses who do have this information.192
Courts have taken somewhat different approaches when a line of questioning goes beyond that designated in the deposition notice. The trend favors the view that, once an organization designates a witness on its behalf, the scope of the inquiry is governed by the general scope of discovery, and is not limited to the specific areas identified in the notice of deposition.193 In such cases, courts may deem the answers offered in response to questions outside the scope of the notice not to be binding on the entity, but merely the views of the deponent personally.194
It’s important to emphasize that the burden to prepare Rule 30(b)(6) deponents confers a heightened responsibility on organizations. "'[I]f a party designates someone to testify on that party's behalf on the issue of evidence possessed by the party to support its claims or defenses, and the witness either disclaims any knowledge of such evidence or provides a limited amount of testimony on the subject, the organization may not use any evidence beyond that at trial,'" unless the information is provided through other discovery responses.195 The organization responding to a Rule 30(b)(6) deposition notice “must prepare deponents by having them review prior fact witness deposition testimony as well as documents and deposition exhibits.”196 Even if the documents are voluminous and the review of those documents would be burdensome, the deponents are still required to review them in order to prepare themselves to be deposed.197 Adequate preparation of the designated deponent also may entail consultation with other employees possessing personal knowledge of the deposition topic.198 Such preparation is necessary because the individuals so deposed are required to testify not only as to their own knowledge, but also as to the knowledge of the business or government entity.199
Thus, Rule 30(b)(6) provides deposing counsel with considerable advantages:
[T]he burdens faced by the responding party are considerably more challenging than with an ordinary deposition. It must choose the person to testify. There is no obligation to select a person with personal knowledge of the events in question, but there is an obligation to proffer a person who can answer regarding information known or reasonably available to the organization. Thus, unlike all other depositions, there is an implicit obligation to prepare the witness. As specified in the rule, this preparation is not limited to matters of which the witness has personal knowledge, but extends to all information reasonably available to the responding organization . . . Rule 30(b)(6), in short, provides the organization’s adversary with a very effective device for procuring information and also can impose considerable burdens on the opposing party.200
Advocates should pay careful attention to the drafting of the Rule 30(b)(6) deposition notice. Anticipate and try to avoid unnecessary disputes at the deposition over the requirement that the “matters for examination” have been described in the notice “with reasonable particularity.”201 Prior to the deposition, be prepared to meet with opposing counsel, to attempt to refine the deposition topics. At the deposition, note on the record when specific Rule 30(b)(6) topics are being inquired into. This clarifies that answers are being sought that will bind the organization. Be prepared to counter opposing counsel’s attempts to “clarify,” through objections or instructions not to answer, that the deponent’s testimony is being offered only or personal knowledge, not in a manner that will bind the organization. If you encounter a significantly unprepared deponent, consider pursing a motion to compel, coupled with sanctions.
Discovery From Non-Parties
Federal Rule of Civil Procedure 45 governs discovery from non-parties. Parties may issue subpoenas, commonly known as subpoenas duces tecum, to third parties for production of documents or electronically stored information, or for inspection of premises. The requesting party need not depose the third party, or its document custodian who furnishes documents or electronically stored information.202 A deposition may be unnecessary if the third party is prepared to stipulate to the authenticity of the documents provided and the thoroughness of the search performed to generate them. If the requesting party wishes to depose the third party, the request for documents, electronically stored information or tangible things should be included in the subpoena for attendance at the deposition. You should request that the documents be provided in advance of the deposition so that you have sufficient opportunity to review them prior to the deposition.
The clerk of court must issue a signed subpoena to a party who requests it. An attorney may also issue and sign a subpoena as a officer of the court, and a court seal is not required.203 If the subpoena seeks the production of documents or electronically stored information, it must describe what is sought with a degree of specificity required to avoid an overbreadth or burdensomeness objection.204 The subpoena may request material in the recipient's "possession, custody, or control," which includes information which the recipient has the legal right to demand from others.205 The subpoena is issued from the court for the district in which the deposition or production is to take place.206 So long as the production is to take place in the district in which the issuing court is located, the recipient is obligated to produce material even if it resides outside the district from which the subpoena was issued and served.207 Thus, for example, a subpoena issued by the federal court in the District of Columbia commanding a Maryland firm's production of documents in Maryland is invalid.208
Subpoenas are served by non-party adults, but are served by the U.S. Marshal's Service in cases brought in forma pauperis.209 Most courts have held that subpoenas must be served on the recipient personally, although others have held that the term "delivering" in the Rule permits alternative forms of service, such as Federal Express so long as the method selected ensures receipt.210 If the subpoena commands the production of documents, electronically stored information or tangible things or the inspection of premises, notice on all parties must be provided before the subpoena is issued.211 Failure to provide such notice is sanctionable. Although the Rule does not similarly require advance notice for third-party depositions, it is often good practice to notify the opposing parties to ensure that the date selected for the deposition is convenient.
When commanding the attendance of a third-party witness, the subpoena must include a check to cover witness fees and travel costs.212 You must pay these expenses even when the plaintiff is proceeding in forma pauperis.213 Service of the subpoena must be made: (1) within the district of the issuing court; (2) outside that district, but within 100 miles of the location of the deposition or inspection; (3) within the state of the issuing court, if permitted by state law; or (4) where the court authorizes on motion for good cause, if permitted by federal statute.214 The process server should file a proof of service.215
Rule 45 directs the party or attorney issuing a subpoena to “take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena."216 The question of undue burden usually raises the issue of the reasonableness of the subpoena request. For example, “it might be unduly burdensome to compel an adversary to attend trial as a witness if the adversary is known to have no personal knowledge of the matters in dispute, especially so if the adversary would be required to incur substantial travel burdens.”217 Some courts have held that the scope of material obtainable by subpoena is as broad as permitted under Rule 26.218 Other courts may balance various factors, including (1) the relevance to the litigation of the information requested; (2) the need of the requesting party for the documents sought; (3) the breadth of the document request and the time period covered; and (4) the particularity with which the party describes the requested documents.219
A third party subpoenaed to produce documents or tangible things may object to the subpoena by filing written objections.220 Those objections must be filed within fourteen days or prior to the date specified for compliance, whichever is earlier.221 If the requesting party disagrees with the objection, the issue is typically resolved upon a motion to compel enforcement of the subpoena. The Rule sets forth the means by which the third party is to comply with a subpoena for documents or electronically stored information.222
A nonparty witness subpoenaed for deposition or trial may object by filing a motion for protective order or a motion to quash or modify the subpoena.223 Rule 45 requires that a motion to quash must be “timely.”224 Courts have generally defined as prior to the date of the deposition or trial.225 Rule 45 contains both mandatory and permissive factors to guide the court. A court “must” quash or modify a subpoena that: (1) fails to allow a reasonable time for compliance; (2) requires a nonparty to travel more than 100 miles, except for traveling to trial, without substantial expense, from any place within the state; (3) requires disclosure of privileged material; or (4) subjects the person to undue burden.226 “To protect a person subject to or affected by a subpoena,” a court “may” quash or modify the subpoena, if it requires: (1) disclosing a trade secret, or other confidential information; (2) disclosing an unretained expert’s opinion, under specified circumstances, or (3) a nonparty to incur substantial expense to travel more than 100 miles to attend trial.227
The party issuing the subpoena may wish to file a cross-motion for enforcement. In response, the court may consider and impose conditions or modifications on the subpoena. The court may order appearance or production, if the serving party shows a “substantial need for the testimony or material that cannot be otherwise met without undue hardship” and assurances are provided that the subpoenaed person will be “reasonably compensated.”228
6.2.E. Electronic Discovery
It has become commonplace to say that we live in a digital age. Various assessments have highlighted the increasing proliferation of data being produced in electronic, as opposed to paper form. A frequently cited 2003 University of California Berkeley study estimated that five exabytes of information were created in 2002. According to the study, “the nineteen million books and other print collections in the Library of Congress would contain about 10 terabytes of information; five exabytes of information is equivalent in size to the information contained in half a million new libraries the size of the Library of Congress print collections.”229 According to this decade-old study, 92% of the five exabytes of new information created in 2002 was stored electronically.230 The study further states that instant messaging generates five billion messages daily, and that email generates about 400,000 terabytes of new information annually.231 These figures continue to increase.
Businesses and other organizations conduct transactions primarily through electronic media. “[M]ore than 90% of all corporate information is electronic; North American businesses exchange over 2.5 trillion e-mails per year; today, less than 1% of all communication will ever appear in paper form; and, on average, a 1000-person corporation will generate nearly 2 million e-mails annually.”232
In addition to its sheer volume, electronically stored information (ESI) is also distinguished from tangible documents by its complexity and availability in increasingly diverse formats. For example, advocates can readily point to electronic documents they encounter daily, such as email, intranet and internet web pages, computer databases, and word processing files. ESI also appears as “instant messages, voice mails, cell phone and pager text messages, . . . call logs, . . . digital photos, spreadsheets and accounting software, and specialized engineering software, as well as backup and archived copies of that same information.”233 ESI is further delivered in “magnetic disks (such as DVDs and CDs), and flash memory (such as “thumb” or “flash” drives”),”234 as well as portable electronic devices (PEDs), such as Apple iPhone, Android, Palm PDA, and Blackberry.235
“Cloud” technology further allows outsourcing to “a third party who charges clients for online access to their third-party-owned data centers, which will host the client’s information.”236 As of 2011, approximately 86% of businesses were implementing data storage through the use of cloud computing. In 2012, the Federal government began implementing the “Digital Government Strategy,” designed to move major data systems to the cloud.237
The proliferation of social networking platforms, such as Facebook, Twitter, MySpace, YouTube, Linkedin, and Tumblr, have greatly contributed to this explosion of digital information, both from individuals and organizations. As one commentator has noted, at least 65% of adult Americans “have at least one presence on a social networking site . . . [one out of every seven online minutes is spent on Facebook, with Americans alone devoting 10.5 billion minutes daily to the site and uploading over 30 billion separate pieces of content each month.”238
Features that fundamentally distinguish ESI from paper can be grouped into six basic categories, each with practical implications for discovery:
(1) “Volume and Duplicability” – large amounts of information can be replicated without the data being degraded;
(2) “Persistence” – “deleting” a file doesn’t actually erase the data, until written over by the computer;
(3) “Dynamic, changeable content” – information can be modified by moving or accessing the data in ways that are hard to detect without computer forensic techniques;
(4) “Dispersion and searchability” – many types of ESI can be quickly and accurately searched. However, the ability to trace its origin, completeness and accuracy can be obstructed, when transmitted in multiple versions to many locations. Many forms of ESI can, however, be quickly and accurately searched;
(5) “Environment dependence and obsolescence” – database information can become incomprehensible when removed from its original structure, and data migrates to different platforms, making it difficult to access this “legacy” data from outdated systems;
(6) “Metadata” – this involves potentially important, often-hidden information about the document or file that the computer records to assist in storing and retrieving, such as create and edit dates, who the authors of the document are, comments, and edit history.239
Discovery of ESI has been distinguished from paper discovery in more fundamental terms:
(1) the impossibility of identifying the “what, where, and how” of ESI without involving an IT person; (2) the volume and haphazardness of ESI compared to paper; (3) the necessity to use technology to see ESI; and (4) the risk of the opposing party employing superior technology, potentially allowing it to analyze searchable ESI. 240
The nearly universal production of ESI ensures that it will continue to play an increasingly predominant role in pretrial discovery. Electronic discovery now impacts virtually all types of civil litigation. Electronic data “has become a fact of life for all courts, at every level. Every kind of civil action, from complex commercial litigation to domestic relations cases, has been influenced by the increased use of electronically stored information . . . Today 99.9% of all cases involve electronically stored information.”241
In some cases, ESI does not raise unique issues in discovery, since it is simply converted to paper and exchanged through traditional methods. “In other cases, disputes arise as to the scope of discovery, the form in which ESI is produced, . . . the shifting of costs from producing to requesting parties, and the preservation of ESI and related spoliation allegations.”242
6.2.E.1 Overview of Electronic Discovery Under the Federal Rules of Civil Procedure
Under 2006 amendments to the Federal Rules of Civil Procedure, ESI is expressly made discoverable; parties must preserve and produce it; attorneys must understand how to request, protect, review and produce it; and courts have the tools available to them to redress abusive or obstructionist practices regarding the production of electronic discovery. The amendments address ESI production through the use of existing discovery rules.243 Advocates should familiarize themselves with the provisions of the Rules that address electronic discovery, which this section will summarize.244
The 2006 amendments represented a major development in the discovery of ESI. The only significant prior amendment addressing technological advances in discovery occurred in 1970, when the description of “documents” subject to production under Federal Rule of Civil Procedure 34 was amended to include “data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form.”245 This “seemingly small but actually quite important change made in Rule 34 brought the federal rules, in some ways for the first time, into the computer age.”246 The 2006 amendments acknowledged the current pervasiveness of data stored in electronic systems:
Since  . . . the growth in electronically stored information and in the variety of systems for creating and storing such information has been dramatic. Lawyers and judges interpreted the term “documents to include electronically stored information because it was obviously improper to allow a party to evade discovery obligations on the basis that the label had not kept pace with changes in information technology. But it has become increasingly difficult to say that all forms of electronically stored information, many dynamic in nature, fit within the traditional concept of a “document.” Electronically stored information may exist in dynamic databases and other forms far different from fixed expression on paper.247
Accordingly, the Rules provide for specific treatment of ESI in a variety of discovery contexts.
6.2.E.1.a. ESI as a Mandated Form of Disclosure
Rule 34(a)(1)(A) clarifies that ESI is discoverable when “stored in any medium from which information can be obtained either directly, or, if necessary, after translation by the responding party into a reasonably usable form.”248 This reorients the Rule to add ESI as an object of discovery in addition to “documents” and “tangible things.”249 ESI is a distinct type of discoverable information on a par with hard-copy documents.250 The response to a Rule 34 request that simply asks for “documents,” without additionally specifying emails, text messages, or other forms of electronic data, should be interpreted to encompass ESI.251
Rule 34 does not adopt a single, uniform definition of ESI. Instead, the Rule reflects an expansive, flexible approach to capturing requests for ESI that is applicable throughout the Rules and is meant to accommodate both current and future technological advances.252 Courts have followed this approach.253 This same broad definition of ESI was adopted by reference in the 2006 amendments to a number of other Rules, such as Rules 26(a)(1), 26(b)(2)(B), 26(b)(5)(B), 26(f), 33(d), 34(b), 37(e), and 45.254 Even where Rules referring to “documents” have not been specifically amended, they should still be read to include electronically stored information.255
6.2.E.1.b. Seeking Production of ESI in an Appropriate Format
Rule 34 allows a requesting party to specify the form or forms in which ESI is to be produced.256 The Advisory Committee recognized the importance of this, since “different forms of production may be appropriate for different types” of ESI and specifying “the desired form or forms may facilitate the orderly, efficient, and cost-effective discovery” of ESI.257 For example:
Using current technology . . . a party might be called upon to produce word processing documents, e-mail messages, electronic spreadsheets, different image or sound files, and material from databases. Requiring that such diverse types of electronically stored information all be produced in the same form could prove impossible, and even if possible could increase the cost and burdens of producing and using the information.258
The Rule specifies certain requirements for responding to ESI requests. First, if the requesting party doesn’t ask for ESI to be provided in a particular form, absent stipulation or court order, the responding party “must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”259 Second, a responding party has the affirmative duty to supply any necessary “translation” of ESI into a “reasonably usable form.”260 Examples might include a responding party providing “some reasonable amount of technical support, information on application software, or other reasonable assistance” to enable use of the ESI.261 This may be useful to legal services programs without significant in-house electronic data management capabilities. Third, the producing party may not degrade or convert the ESI to a form that makes impedes access or “makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.”262 An example might be the removal or significant degradation of ordinarily maintained electronic searchability features.263 Fourth, the producing party must respond to each requested “item or category” in writing, which can include an allowance of the request or an objection to a requested form of ESI. If an objection is made, or if no form of ESI production is specified in the request, “the party must state the form or forms it intends to use.”264 This involves stating the intended form of use in advance of production, which “may permit the parties to identify and seek to resolve disputes before the expense and work of the production occurs.”265
6.2.E.1.c. Managing the Discovery of ESI
Rule 34 doesn’t require that a requesting party choose the form of production of sought-after ESI. In fact, the requesting party may not have a preference, or may not know the form that the opposing party uses to maintain its ESI.266
Advocates should, however, proactively manage the discovery of ESI. If possible, advocates should seriously consider adopting the option allowed by Rule 34, by attempting to carefully specify the forms of ESI being sought, as early in the process as possible. This may involve trying to determine the most suitable form of production, given the nature and needs of the case.
For example, discovering the various drafts, editing phases, and authors of documents and emails might be important in a given case, to demonstrate their authentication and integrity, or to show the stages of how a particular governmental or corporate policy or pattern and practice was developed and implemented. This could involve delving into metadata. Microsoft Word can incorporate metadata revealing the document’s author and identification of persons who edited the document, the date of its creation, the text that was revised, tracked changes in the document, the location of its storage, and various other traits. Metadata contained in email may include internet protocol addresses, the dates the e-mail was sent, received, replied to and forwarded, and data that may not be readily accessible to certain viewers, such as blind carbon copy (“bcc”) information and sender address book data.267 If discovering these types of metadata is determined to be a likely source of vital information in the case, counsel should anticipate preparing discovery that expressly requests its production and specifies an electronic form that will most likely include the metadata. If counsel fails to expressly request the metadata or does not specify a form of ESI production, the right to obtain this information could be forfeited outright.268
Managing ESI discovery involves discussing with opposing counsel potential problems of production that are likely to arise. Rule 26(f)(3)(C) mandates a discussion on these issues with opposing counsel early in the litigation, by requiring the parties to produce a discovery plan that includes their “views and proposals” on “any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.”269 Specifying the form or forms of ESI production under Rule 34(b) can be facilitated by discussing them with opposing counsel during the Rule 26(f) conference, “to determine what forms of production will meet both parties’ needs” and to “identify the various sources of such information within a party’s control that should be searched” for ESI.270 Both the Rules and case law “emphasize that electronic discovery should be a party-driven process.”271 If advocates do not adequately explore ESI issues early in the litigation, as required by Rule 26(f), they run the risk of courts refusing to intervene and compel sought-after production.272 Local rules of U.S. District Courts are increasingly mandating specific ESI issues to be covered at the Rule 26(f) conference.273
Advocates may be met at the conference with summary assertions from opposing counsel that requests for ESI are too broad and burdensome to comply with, given the nature of the opposing party’s storage systems.274 To avoid simply having to agree with these claims, advance preparation will be critical for both the Rule 26(f) conference and the eventual shaping of discovery requests under Rule 34. This will obligate advocates to acquire sufficient technical knowledge of ESI production issues posed by the opposing party’s digital storage systems. Work with information technology staff or consultants, as appropriate, regarding ESI access and storage retrieval issues, and use them for guidance as to what to ask about and concentrate on at the conference, as well as what to request in formal discovery. Be prepared to pose to opposing counsel and discuss a range of issues at the conference, including identifying sources and search methods for locating relevant data contained in current and formerly-maintained storage systems, whether they should be considered reasonably accessible, desired production formats, whether the data is subject to routine prevention or destruction, and persons knowledgeable in the use of these systems.275
6.2.E.1.d. Reasonable Accessibility of ESI
Rule 26 creates a two-tiered approach to accessing ESI, by initially separating it into categories of “reasonably accessible” and “not reasonably accessible,” which in turn hinge upon a showing of “undue burden or cost.” The responding party “need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”276
The producing party’s initial position on the reasonable accessibility of the data constitutes the first tier of ESI discovery. Simply being stored electronically doesn’t lead to an automatic inference that the information is not reasonably accessible due to undue burden or cost. The fact that electronic storage systems can actually make data location and retrieval an easier task should be taken into account in assessing the reasonableness of the scope of ESI discovery.277 “The volume of—and the ability to search—much electronically stored information means that in many cases the responding party will be able to produce information from reasonably accessible sources that will fully satisfy the parties' discovery needs.”278
If the responding party agrees that the data can be reasonably accessed, “it should produce electronically stored information that is relevant, not privileged, and reasonably accessible, subject to the [Rule 26](b)(2)(C) limitations that apply to all discovery.”279 If, on the other hand, the party contends that the ESI is “not reasonably accessible” due to “undue burden or cost,” it may simply refuse production and respond to a motion to compel, or it may affirmatively seek a protective order against production of the data. In either case, the responding party bears the burden that it “must show” that the data is not reasonably accessible. The responding party cannot simply claim that the ESI is inaccessible. It “must also identify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing” and “should, to the extent possible, provide enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources.”280
The requesting party may need to request court permission to allow discovery to test the claim of inaccessibility. This might take several forms, including: (1) conducting depositions of witnesses knowledgeable about the responding party’s data systems; (2) requiring the responding party to conduct a sampling of data from sources claimed to be inaccessible; or (3) allowing some form of inspection of the referenced data sources.281
The Rule does not specify particular ESI sources deemed reasonably accessible or inaccessible, at either tier of the discovery process. Several examples of data storage that have generally been identified as problematic include: (1) “deleted” ESI, which may remain in fragmented form requiring retrieval through the use of restorative forensics; (2) “backup tapes” intended for disaster recovery purposes, that are often not indexed or electronically searchable; and (3) “legacy” data remaining from obsolete systems, which is unintelligible on successor systems.282
Even if determined to be not reasonably accessible, the second tier of ESI discovery allows the court to “nonetheless order discovery” from those sources, if the requesting party demonstrates “good cause.”283 “The decision whether to require a responding party to search for and produce information that is not reasonably accessible depends not only on the burdens and costs of doing so, but also on whether those burdens and costs can be justified in the circumstances of the case.”284 The Advisory Committee Note suggests a nonexclusive list of “appropriate considerations” to be addressed in the assessment of good cause:
(1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties' resources.285
The initial burden of showing that the identified data sources are not reasonably accessible falls on the responding party. This will typically require a demonstration that the burdens and costs are too steep regarding searching, retrieving, and producing whatever responsive information may be found. The burden then shifts to the requesting party to show that the need for discovery outweighs these burdens and costs.286
The court is authorized to make the good cause determination consistent with the general discovery limitations of Rule 26(b)(2)(C).287 These limitations allow the court to “limit the frequency or extent” of discovery based on a variety of factors, including whether it is “unreasonably cumulative or duplicative,” or can be obtained from “more convenient, less burdensome, or less expensive” alternative sources, whether the requesting party has had “ample opportunity” to obtain the information in the litigation, or the burden or expense of the discovery “outweighs its likely benefit,” considering the needs and issues of the case.288
The good-cause determination may be complicated by a lack of knowledge by the parties and the court regarding what information the “inaccessible” data sources might actually contain, or whether it is relevant or critical to the issues in the litigation. The parties may need to conduct “focused discovery, which may include sampling of the sources,” to address the good cause factors.289 Rule 34 generally allows testing and sampling of requested documents and ESI, in addition to inspection and copying.290 While this doesn’t create a “routine right of direct access to a party’s electronic information system,”291 various search and retrieval methods have become increasingly recognized and allowed by the courts, to access relevant information from electronic data sources. These tools may vary, depending on the complexity of the litigation, the extensiveness of the discovery requests, and the volume of data to be searched. In cases involving smaller amounts of ESI, searching may be done manually by the technology users, data custodians, other information technology staff, or by counsel. For example, a key witness may be directed to search his or her own email, computer hard drive, laptop, or portable device for response information. Cases involving large amounts of electronic data may utilize automated search methods, possibly using software programs and document management systems, to attempt to retrieve relevant data, using search protocols, such as key search terms, time frames for file creation and modification, emails and other messages, and folder and other data locations.292 Other methods to target the reduction of the volume of data to be searched and collected, and thus the time and cost of retrieval, include the use of complex algorithms for ESI filtering and organization and statistical sampling,293 or “predictive coding,” which uses automated search methodologies to direct reviewers coding a controlled sample group of documents based on a series of “yes” or “no” questions regarding whether documents are responsive, relevant, or privileged.294
6.2.E.1.e. Cost-Shifting: Who Pays for the Production of “Inaccessible” ESI?
Under general discovery rules, apart from conditions that may attach to a protective order, “the presumption is that the responding party must bear the expense of complying with discovery requests….”295 This presumption has been modified, though, in cases of discovery of ESI considered inaccessible due to significant expenses of access and production. The cost incurred by a responding party for accessing, retrieving, and producing ESI is now a primary factor reflected in the Rules. As discussed above, responding parties may be relieved of the obligation to produce ESI, if it is deemed “not reasonably accessible” because of “undue burden or cost.”296 The court may override this assessment, based on a determination of good cause, that may refer to whether the ESI is available from “less expensive” sources.297
Under Rule 26(b)(2)(B), courts “may specify conditions for the discovery.”298 This is increasingly taking the form of court-ordered allocations between the parties of the costs of ESI discovery, with respect to the assessments of accessibility and good cause. While the Rule doesn’t expressly mandate it, the Advisory Committee Note references cost shifting as a potential condition of producing inaccessible data. These conditions “may” include ordering the requesting party to pay “part or all of the reasonable costs of obtaining information from sources that are not reasonably accessible.” A requesting party’s willingness to bear some or all of these access costs “may be weighed by the court” in making a determination of good cause.299 Thus, “cost shifting” addressed by the courts has increasingly involved motions by requesting parties seeking to shift access, retrieval, and production costs to requesting parties, when discovery of ESI is at issue.
Two seminal decisions from the Southern District of New York that predate the 2006 Amendments to the Rules – Rowe Entertainment, Inc. v. William Morris Agency, Inc.300 and Zubulake v. UBS Warburg LLC301 - introduced multifactor tests to determine when cost shifting is appropriate in electronic discovery. Advocates facing cost shifting disputes should refer to both decisions in tandem, to understand the development of judicial approaches to resolving the issues.
In Rowe, a racial discrimination case, the defendants objected to the production of company emails from backup media based on relevance, and alternatively requested that the costs of production be shifted to plaintiffs, if discovery was ordered. The court adopted a balancing test incorporating the following factors:
(1) the specificity of the discovery requests; (2) the likelihood of discovering critical information; (3) the availability of such information from other sources; (4) the purposes for which the responding party maintains the requested data (5) the relative benefit to the parties of obtaining the information; (6) the total cost associated with production; (7) the relative ability of each party to control costs and its incentive to do so; and (8) the resources available to each party.302
In Zubulake, a gender discrimination and retaliation action, Judge Shira Scheindlin addressed, as in Rowe, objections to production of corporate emails existing only on backup tapes and other archived media. The court also set out a set of cost shifting factors, building upon the Rowe balancing test. Judge Scheindlin acknowledged that the Rowe test had “unquestionably become the gold standard” for resolving ESI disputes, but that “there is little doubt that the Rowe factors will generally favor cost-shifting.” The court noted: “In order to maintain the presumption that the responding party pays, the cost-shifting analysis must be neutral; close calls should be resolved in favor of the presumption.” The court found the Rowe test to “undercut that presumption” because it was incomplete, the factors should not all be given equal weight, and courts applying the test had not always developed a full factual record.303 The court balanced competing concerns of cost control and liberal allowance of discovery, and set out its own modified test to address cost shifting:
1. The extent to which the request is specifically tailored to discover relevant information; 2. The availability of such information from other sources; 3. The total cost of production, compared to the amount in controversy; 4. The total cost of production, compared to the resources available to each party; 5. The relative ability of each party to control costs and its incentive to do so; 6. The importance of the issues at stake in the litigation; and 7. The relative benefits to the parties of obtaining the information.304
Judge Scheindlin eliminated as unnecessary the Rowe factors regarding specificity of the discovery request and the purposes for which the responding party maintains the requested data, and added factors she determined to be required under Rule 26.305 The central cost-shifting inquiry guiding the modified Zubulake factors, which are not to be mechanically applied as a simple checklist of equally weighted factors, is “does the request impose an ‘undue burden or expense’ on the responding party? Put another way, ‘how important is the sought-after evidence in comparison to the cost of production?’”306 Thus, the court instructed that the seven factors should be weighted in descending order, with the first two “marginal utility” factors being the most important in determining the appropriateness of cost shifting.307
In a subsequent ruling, the Zubulake court then proceeded to apply the weighted factors. Finding that the requested email pieces were unavailable elsewhere but that it was also speculative to assume that relevant emails would be retrieved from an identified group of 72 backup tapes, the court in Zubulake III allocated 25% of the approximately $166,000 search and restoration costs to the plaintiff. The court ordered the defendant to bear the complete costs of reviewing and producing the ESI from these tapes – approximately $108,000 – after its conversion to an accessible form.308
The 2006 Amendments “were heavily influenced by the Zubulake approach, basing the cost-shifting analysis on the accessibility of the requested information.”309 “Further channeling Zubulake,” the Advisory Committee further noted a similar seven-part test of “appropriate considerations” bearing on whether a responding party should be required to search for and produce inaccessible information, referencing both the associated costs and burdens and whether they can be justified under the circumstances of the case.310 Courts have reached differing outcomes by using variations of the Zubulake cost shifting analysis.311
If faced with having to litigate cost shifting issues, advocates should bear in mind that, instead of mandatory criteria, Rule 26 provides only guidance to the court in the form of “appropriate considerations.” This vests the court with considerable discretion in ruling on whether the requesting party should bear some or all of the costs associated with ESI discovery.
Government and corporate defendants are increasingly voicing objections to the expenses associated with producing electronic data in litigation, and are attempting to frame the discovery inquiry in terms of its claimed undue cost and burden.312 Opposing counsel representing these defendants may accordingly move the court to either deny discovery of the requested information outright, or alternatively require that the requesting party bear the costs involved in producing it. Counsel will frequently try to frame the dispute in terms of: (1) the threshold irrelevance of the requested ESI to the litigation; (2) the inaccessibility of the information, due to its storage in difficult-to-access sources such as backup tapes, optical disks, or other archived media; and (3) if still required by the court to produce the information, the allegedly prohibitive and escalating costs that will be incurred in searching for and retrieving the requested ESI.
This may require advocates to attempt to reframe the focus of the dispute away from sole considerations of cost, by directing the court to the direct relevance of the requested information to the merits of the claims being litigated. The litigation may be severely hampered if the discovery is disallowed, either expressly, or effectively, through a ruling that imposes significant costs on the requesting party. Advocates will need to ensure that an adequate factual record has been made, to lay the foundation for the discovery request. In addition, framing specific, tailored requests for ESI, if possible, will likely be met more favorably by the court, instead of broad-ranging “any and all” requests for data from expansive time frames, stored in any format.313 In short, advocates should be prepared to show that the need for the requested discovery outweighs the opposing party’s claimed burdens and costs of locating, retrieving, and producing the ESI.314
On the issue of cost, advocates may need to conduct discovery related to discovery, such as deposing the opposing party’s information technology staff that developed the estimates of expense and difficulty of data retrieval and production. Advocates can also suggest middle-ground approaches to mitigating the costs of production, by asking that the court order sampling methods designed to winnow likely irrelevant data sources.315 Advocates should also remind the court that “the parties’ resources” are one of the “appropriate considerations” referenced in the good cause assessment.316 This has obvious bearing on the ability of legal services clients to mount effective litigation.
6.2.E.1.f. Preservation of ESI and Sanctions for Its Spoliation
Courts have determined that parties have a duty to preserve evidence, including ESI, when it is known or should be known that a document may be relevant to pending or reasonably anticipated litigation. As the Sixth Circuit stated in John B. v. Goetz, “As a general matter, it is beyond question that a party to civil litigation has a duty to preserve relevant information, including ESI, when that party has notice that the evidence is relevant to litigation or ... should have known that the evidence may be relevant to future litigation.”317 “Although this commonly occurs at the time a complaint is filed, it can also arise earlier, for instance when a disgruntled employee files an EEOC charge or at the point where relevant individuals anticipate becoming parties in imminent litigation.”318 The obligation to preserve evidence thus can attach before litigation is formally commenced. This duty, which is generally imposed by common law, attaches “from the moment that litigation is reasonably anticipated.”319 Courts determine this under an objective standard, “asking . . . whether a reasonable party in the same factual circumstances would have reasonably foreseen litigation.”320 “As soon as a potential claim is identified, a litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action.”321
Sending a pre-litigation demand letter to the opposing party can trigger the moment when litigation should be reasonably anticipated, leading to a duty to preserve evidence. As the court in Sampson v. City of Cambridge ruled:
It is clear that defendant had a duty to preserve relevant evidence that arose no later than June 26, 2006, when plaintiff's counsel sent the letter to defendant requesting the preservation of relevant evidence, including electronic documents. At that time, although litigation had not yet begun, defendant reasonably should have known that the evidence described in the letter “may be relevant to anticipated litigation.” 322
Such a “litigation hold” letter, while certainly advisable, is not required to trigger the duty to preserve ESI maintained by the opposing party. “While a litigant certainly may request that an adversary agree to preserve electronic records during the pendency of a case, or even seek a court order directing that this happen, it is not required, and a failure to do so does not vitiate the independent obligation of an adverse party to preserve such information.”323 A formal complaint may constitute reasonable notice of impending litigation,324 but events short of a complaint that lead up to a dispute eventually resulting in litigation may be insufficient to require a defendant to preserve ESI.325
Advocates planning to file an action that may require preservation of ESI should carefully draft a pre-litigation demand letter to the opposing party or counsel that contains as much detailed information as possible. The letter should: (1) make a demand for action to correct the client’s injury; (2) specify the nature of the injury as caused by the illegal acts of the opposing party; (3) state that if these acts are not stopped and the violation of law and resulting injury are not resolved, the client will pursue all legal remedies, including litigation; (4) provide notice that the opposing party must preserve all evidence potentially relevant to the client’s legal claims, including ESI; and (5) if possible, specify formats, storage media, and time frames of relevant information to be preserved, including ESI.
After determining when the duty to preserve attaches, the next inquiry in identifying the scope of the obligation is asking what evidence the party must preserve. In Zubulake IV, the court initially framed the inquiry as follows:
Must a corporation, upon recognizing the threat of litigation, preserve every shred of paper, every e-mail or electronic document, and every backup tape? The answer is clearly, “no”. Such a rule would cripple large corporations, like UBS, that are almost always involved in litigation. As a general rule, then, a party need not preserve all backup tapes even when it reasonably anticipates litigation.
At the same time, anyone who anticipates being a party or is a party to a lawsuit must not destroy unique, relevant evidence that might be useful to an adversary. While a litigant is under no duty to keep or retain every document in its possession ... it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request.326
The preservation duty “extends to those employees likely to have relevant information-the “key players” in the case” and to “all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches, and any relevant documents created thereafter.”327 Once litigation is reasonably anticipated, a party’s ESI retention obligation means it “must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.”328 This litigation-hold obligation places a number of affirmative, continuing duties on the producing party and its counsel:
A party's discovery obligations do not end with the implementation of a “litigation hold”—to the contrary, that's only the beginning. Counsel must oversee compliance with the litigation hold, monitoring the party's efforts to retain and produce the relevant documents. Proper communication between a party and her lawyer will ensure (1) that all relevant information (or at least all sources of relevant information) is discovered, (2) that relevant information is retained on a continuing basis; and (3) that relevant non-privileged material is produced to the opposing party. Once a ‘litigation hold’ is in place, a party and her counsel must make certain that all sources of potentially relevant information are identified and placed ‘on hold’ . . . To do this, counsel must become fully familiar with her client's document retention policies, as well as the client's data retention architecture. This will invariably involve speaking with information technology personnel, who can explain system-wide backup procedures and the actual (as opposed to theoretical) implementation of the firm's recycling policy. It will also involve communicating with the ‘key players’ in the litigation, in order to understand how they stored information.329
“Competent counsel” for the producing party will therefore take various steps after recognizing that a litigation hold is necessary. This includes: (1) gathering information about the party’s information technology process, both paper and electronic; (2) defining the scope of information to be located, retrieved, and preserved; and (3) advising the client, on an ongoing basis, regarding the specific procedures that must be undertaken to implement the litigation hold, through a formal, written litigation-hold notice.330
When evidence, including ESI, is alleged to exist and cannot be found by the responding party or has been destroyed, another set of factors comes into play by the court. This will involve an assessment of whether the evidence has been spoliated and whether sanctions are warranted. Spoliation has been defined as “’the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.’”331 The court can exercise its discretion to assess sanctions for spoliation, under the authority of the Federal Rules of Civil Procedure and the court’s own inherent powers.332 Sanctions may include an “adverse inference” – an instruction to a jury that it may infer that the destroyed evidence, if available, would have been unfavorable to the spoliating party.333
A party seeking sanctions based on the spoliation of evidence, including ESI, must generally establish: “(1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed ‘with a culpable state of mind’; and (3) that the evidence was ‘relevant’ to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.”334 Courts have issued adverse inference instructions and monetary sanctions for spoliation.335 Spoliation sanctions serve three basic purposes: “(1) deterring parties from destroying evidence; (2) placing the risk of an erroneous evaluation of the content of the destroyed evidence on the party responsible for its destruction; and (3) restoring the party harmed by the loss of evidence helpful to its case to where the party would have been in the absence of spoliation.”336 Courts have varied in their application of the level of culpability necessary to invoke sanctions for spoliation.337
Rule 37(e) affords a potential refuge from sanctions, “absent exceptional circumstances,” where the responding party “fail[s] to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”338 This “safe harbor” provision reflects concerns that “the ordinary operation of computer systems creates a risk that a party may lose potentially discoverable information without culpable conduct on its part.” This may include “the alteration and overwriting of information, often without the operator’s specific direction or awareness.” A showing of good faith may involve modification or suspension of certain features of that routine operation of the computer system, to prevent the loss of data subject to a preservation obligation.339
6.2.F. Expert Discovery
The Federal Rules “provide for extensive pretrial disclosure of expert testimony.”340 Experts are generally defined by the Federal Rules of Evidence.341 Rule 26requires parties to disclose the names of their trial experts.342 A party must also give the opposing party a written report, prepared and signed by witnesses who are "retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony."343
The disclosures “shall be made at the times and in the sequence that the court orders,” but at least ninety days before trial or the trial readiness date, if not otherwise ordered or stipulated to.344 However, the parties have an additional thirty days for an expert disclosure intended solely to contradict or rebut an opposing party’s expert disclosure.345 The “automatic sanction” for failure to disclose an expert is preclusion of the expert’s testimony among other potential sanctions, unless the violation was “harmless” or “substantially justified.”346
The expert disclosure report is required to be comprehensive. It must contain “a complete statement of all opinions the expert will express and the basis and reasons for them" and “the facts or data considered by the witness in forming them,” exhibits that will be sued to summarize or support the opinions, the expert’s qualifications (including publications authored within the preceding ten years), compensation to be received for the study and testimony in the case, and a listing of expert testimony during the prior four years.347 According to the Seventh Circuit, “A complete report must include the substance of the testimony which an expert is expected to give on direct examination together with the reasons therefor. . . . Expert reports must not be sketchy, vague or preliminary in nature. . . . Expert reports must include ‘how’ and ‘why’ the expert reached a particular result, not merely the expert's conclusory opinions.”348 “The purpose of the report is to provide adequate notice of the substance of the expert's forthcoming testimony and to give the opposing party time to prepare for a response.”349 “An expert report must convey the substance of an expert's opinion so that the opponent will be able to prepare to rebut, cross-examine and offer competing reports if necessary.”350 In some cases, a thorough report may eliminate the need for the deposition of an expert. However, a deposition allows you to explore weaknesses in the witness’s background, knowledge, and opinions.351 If a deposition is desired and you are able to afford the significant expense entailed, you may schedule it as soon as the expert is identified and the report is given.352 By contrast, a party may generally seek discovery from experts who are merely retained or specially employed in anticipation of litigation or preparation for trial and who are not expected to testify only upon a showing of “exceptional circumstances.”353
Rule 26 provides protections against forced disclosure of attorney work product stemming from communications with experts. Drafts of expert reports and disclosures, regardless of form, are protected from being disclosed.354 Work product protection is also provided for any attorney–expert communications, regardless of the form of the communications, for those expert witnesses required to provide a report.355 There are three exceptions to this protection: (1) the attorney-expert communications relate to the expert’s compensation; (2) they identify facts or data that the attorney provided, and that the expert considered in forming the opinions expressed; and (3) they identify assumptions provided by the attorney and that the expert relied on in forming the opinions expressed.356
While protection is afforded to attorney work product in communications with experts, advocates should still exercise caution. If, for example, emails from the attorney contain facts, data, or assumptions that the expert considers or relies on in forming his or her opinion, this information could potentially be discoverable. In addition, work product protection is not absolute. If a party shows “substantial need” for the sought-after materials, and “cannot, without undue hardship, obtain their substantial equivalent by other means,” the court may allow access to the information. Even if disclosed, the court must still protect against the disclosure of the attorney’s “mental impressions, conclusions, opinions, or legal theories.”357
As with other discovery, timely supplementation of expert disclosures is required. Supplementation of an expert report on the eve of trial is not permitted unless justified by good cause.358
6.2.G. The Uses of Discovery
When information gathered during discovery supports new claims, new parties, or new relief, amend or supplement your pleadings. Occasionally, discovery suggests that a claim is no longer viable or that a party should be voluntarily dismissed, and that an appropriate motion for dismissal should be filed.359
More typically, the point of discovery is to generate usable evidence. Evidence from discovery may be particularly valuable in connection with seeking preliminary injunctive relief and summary judgment. Although motions for preliminary injunctions may require live testimony, they are sometimes granted (or denied) on the basis of documentary evidence including depositions or responses to requests for production.360
In contrast, motions for summary judgment are considered exclusively on documentary evidence. Although Rule 56 speaks of affidavits submitted in support of or in response to the motion for summary judgment, in practice parties often rely extensively on the use of deposition transcripts. Local practice may vary as to whether filing the transcript of the entire deposition is necessary; attaching excerpts to the motion for summary judgment or the memorandum in opposition is more frequently permissible.361
Discovery by or from you sometimes facilitates settlement. The opposing party may be induced to settle in order to avoid the effort, expense, and possible embarrassment of responding to your discovery requests. Disclosure of harmful facts may encourage settlement. When you respond to discovery and show the strength of your case, the opposing party may also be encouraged to settle.
Discovery is essential in preparing for and conducting a trial. A deposition may be used to impeach a witness or may be offered into evidence as the testimony of a party, or of a witness who is unavailable for trial.362 When offered to impeach the testimony of a witness, deposition testimony is admissible as substantive, non-hearsay evidence rather than simply as evidence of the witness’s lack of credibility.363 Requests for production and interrogatories also generate trial evidence, and requests for admission may pare down the issues that must be tried.
6.2.H. Shifting Costs of Discovery
Apart from the potential costs involved in discovery of electronically stored information, discovery in general can be expensive. Unless they can be obtained on a pro bono basis, depositions can entail significant court reporter's fees, video recording costs, the fee of any expert whom you depose, and transportation and lodging for you to attend out-of-state depositions, or to bring a witness to the deposition.
As explained in more detail in Chapter 9.5 of this MANUAL, both Federal Rule of Civil Procedure 54(d)(1) and 28 U.S.C. § 1920 permit the recovery of certain litigation costs and expenses to the prevailing party, following a successful settlement or verdict. In the absence of such a cost-shifting statute, however, Federal Rule of Civil Procedure 54(d)(1) permits the court to award limited costs to the prevailing party.364 Section 1920(2) permits the recovery of costs for "fees for printed or electronically recorded transcripts necessarily obtained for use in the case."365 When the deposition is used in pretrial motions or at trial, application of the statute is straightforward.366 When the deposition is not used during the course of the litigation, the courts are split on whether the costs are recoverable. The majority view is that they are, if the deposition was reasonably viewed as necessary at the time it was taken.367 Fees associated with depositions that are purely investigative in nature are generally not taxable. Typically, costs incident to the taking of the deposition, particularly those that are provided for the convenience of counsel, are not taxable.368
Under § 1920(4), reasonable and well-documented costs for making necessary copies of deposition transcripts and other documents are permitted.369 Section 1920(3) permits recovery of daily witness attendance and travel fees set under Section 1821,370 and service fees associated with servicing deposition subpoenas are taxable under Section 1920(1).371
6.2.I. Protective Orders
Protective orders may be sought in different discovery contexts and with varying goals. In general, protective orders may be granted, upon motion by the party resisting discovery and “for good cause,” to avoid "annoyance, embarrassment, oppression, or undue burden or expense.”372 Before seeking such an order, the movant is required to confer with the opposing party in an effort to resolve the dispute without court action.373 If this effort is unsuccessful, the movant has the burden to show why a protective order is necessary, based on a particular and specific demonstration of fact; the burden cannot be satisfied by boilerplate and conclusory statements.374 In deciding whether good cause exists, the court typically balances the potential benefit of disclosure against its harms.375 When appropriate, some courts will weigh social or public interests more heavily than private ones. The decision to enter a protective order is within the court’s discretion,376 including what degree of protection is necessary in the fashioning of the order.377 The court should exercise caution in issuing a protective order, and they should be sparingly used.378
The court can enter a range of protective orders. These potentially include orders: (1) forbidding disclosure or discovery outright; (2) specifying terms for disclosure or discovery; (3) prescribing a particular discovery method; (4) forbidding or limiting scope of discovery into certain matters; (5) designation persons who may be present while discovery is conducted; (6) requiring sealing of a deposition; (7) requiring that a trade secret or other confidential information not be revealed, or revealed only in a specified way; and (8) requiring that the parties simultaneously file specified documents or information in sealed envelopes.379
Protective orders are sometimes sought to avoid producing responsive information completely, often in the context of seeking to protect information asserted to be privileged or attorney work product.380 Rule 26 sets forth a procedure for asserting a claim of privilege or protection. When a party withholds information asserted to be privileged or protected as trial preparation materials, the party must make that assertion expressly and describe the nature of the information in sufficient detail so that the requesting party can determine whether the assertion is justified.381 The assertion should be in writing, unless the context, such as defending a deposition, makes that impossible.382 If the requesting party does not agree with the assertion or believes that any privilege or protection has been waived, it may file a motion to compel disclosure of the information.
In other cases, particularly in the context of document production, protective orders are sought, not to foreclose discovery, but to prohibit further disclosure, limit use of the information to the case at hand, or require return of documents at the end of the litigation. For example, in Title VII employment discrimination litigation, in which plaintiffs are required to demonstrate discriminatory pretext, courts often allow wide discovery of personnel files, subject to a protective order requiring that they be maintained in confidence, utilized only for purposes of the subject litigation, and returned or destroyed at the conclusion of the litigation.383 Such protective orders are commonly entered by stipulation and tendered to the court. Stipulated blanket protective orders trouble many courts; you should determine how judges in your district approach these orders before agreeing to one.384
With respect to depositions, a protective order may be sought to bar entirely the taking of the deposition, or simply to limit its scope or duration. Protective orders prohibiting a deposition from being conducted are unusual and require a showing of “extraordinary circumstances.”385 Some courts apply a balancing test, weighing the movant’s proffer of harm against the adversary’s significant interest in preparing for trial.386 A claimed lack of knowledge is not a sufficient ground for a protective order unless supported by a persuasive affidavit.387 Similarly, “the fact that the witness has a busy schedule is simply not a basis for foreclosing otherwise proper discovery.”388 Such orders may, however, be granted in a number of different contexts:
- where it clearly appears that the information sought is wholly irrelevant and could have no possible bearing on the issue;389
- as to a high-level corporate executive who lacks unique or superior knowledge of the facts in dispute;390
- where the deposition would necessarily involve attorney work product,391 and
- as to an opposing party’s attorney, except where the party seeking the attorney’s deposition establishes no other means to obtain the information except to depose opposing counsel.392
Depositions of high-ranking non-federal public officials present special concerns about the diversion of their time and attention from other duties.393 If you believe that such a deposition may be appropriate, attempt first to determine whether a lower-ranking employee might have the information sought and, if not, develop a record to demonstrate that the high-ranking employee has personal knowledge. A third party subpoena for deposition testimony or documents directed to a federal agency official is typically processed pursuant to the agency's Touhy regulations.394 Those regulations govern the process by which testimony or information is sought from federal officials, while traditional evidentiary and other objections control the federal government's substantive response.395
6.2.J. Motions to Compel and Sanctions
Although the Rules contemplate cooperative discovery, some lawyers unfortunately practice obstruction. Should you encounter late, incomplete, evasive, or ambiguous responses, or improper objections to discovery requests, you should write opposing counsel a demand for compliance, specifying a short time limit for a reply.396 If a satisfactory reply is not forthcoming within your specified time limit, move under Rule 37(a)(3) to compel disclosures or discovery responses and, when appropriate, for sanctions. Any motion seeking to compel discovery (or to compel Rule 26(a) disclosures) must include “a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.”397 Never threaten unless you intend to act; you should follow through when dealing with discovery obstruction, or you will likely encourage opposing counsel to engage in more of it.
A party may move to compel disclosures required by Rule 26(a). A party may also move for an order compelling an answer, designation, production, or inspection. This motion may be made if: (1) a deponent fails to answer a question posed at deposition; (2) a corporation or other entity fails to make a designation for a Rule 30(b)(6) deposition; (3) a party fails to answer an interrogatory; (4) a party fails to respond that inspection will be permitted, or fails to permit inspection, under Rule 34.398 An “evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.”399
When you move to compel , you must explain clearly and simply what the dispute is about. You should begin by setting forth the discovery request, the improper response or objection, and your attempt to resolve the dispute. Then explain why you are entitled to the disclosures or discovery and why the discovery sought is relevant and important to proving your causes of action. Before filing your motion, check your local rules, which frequently specify how discovery materials are to be presented to the court in the context of motions to compel.
The district court has broad discretionary power to impose a range of sanctions as consequences for a party’s failure to comply with disclosure and discovery rules and orders.Its decision will be reversed on appeal only for an abuse of that discretion.400
“Rule 37 ‘provides a spectrum of sanctions. The mildest is an order to reimburse the opposing party for expenses caused by the failure to cooperate. More stringent are orders striking out portions of the pleadings, prohibiting the introduction of evidence on particular points and deeming disputed issues determined adversely to the position of the disobedient party. Harshest of all are orders of dismissal and default judgment.’”401 The sanctions specified in Rule 37 are not exhaustive, and the court may impose sanctions it considers just.402
In general, Rule 37 sanctions serve several purposes: (1) to ensure that the offending party will not profit from its failure to comply; (2) to provide a strong deterrent effect to the offending party, as well as the public in general; and (3) to secure compliance with court orders.403 Rule 37 sanctions provide a specific deterrent to those parties whose conduct warrants penalty, and a general deterrent to those contemplating abusing the rules of discovery. The sanctions “`must be applied diligently both to penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of such a deterrent.’”404
If the Rule 37 motion to compel is granted, or if the opposing party provides the requested discovery after the motion is filed, the court “must” require the party, deponent, the attorney advising the conduct in question, or both, to pay reasonable expenses incurred in making the motion, including attorney’s fees.405 However, the court “must not order this payment” if: (1) the movant filed the motion to compel before attempting in good faith to informally obtain the disclosure; (2) the opposing party’s nondisclosure, response, or objection was “substantially justified”; or (3) “other circumstances” make an award of expenses “unjust.”406
Similar standards dictate the potential award of expenses against the moving party, if the motion to compel is denied.407 Apportionment of expenses among the parties is to be made if the motion is denied in part and granted in part.408 If the motion is denied in whole or in part, the court may further enter a corresponding Rule 26(c) protective order.409
Failure to comply with discovery orders issued by the court carries potentially more severe consequences. Rule 37provides, in part:”If a party ... fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders."410 In addition to the potential award of expenses and fees against the party, attorney, or both, these sanctions may include an order: (1) that designated facts are to be taken as established as the prevailing party claims; (2) prohibiting the noncompliant party from supporting or opposing designated claims or defenses, or from introducing specified matters into evidence; (3) striking pleadings in whole or in part; (4) staying further proceedings until the order is obeyed; (5) dismissing the action in whole or in part; (6) issuing a default judgment against the disobedient party; or (7) treating the failure to obey as contempt, except for orders to submit to a physical or mental exam.411 In addition to, or instead of these orders, the court “must” order the disobedient party, its attorney, or both, to pay reasonable expenses, including attorney’s fees, caused by the noncompliance, unless it was “substantially justified” or other circumstances make an award of expenses “unjust.”412
These severe sanctions (except contempt), as well as fees and expenses, may be available on motion without a prior court order, in cases of total noncompliance with discovery requests. These may include: (1) a party or its officer, director or managing agent, or a person designated under Rule 30(b)(6), failing to appear at a deposition after being served with proper notice; or (2) a party failing to serve answers, objections, or written responses to properly served interrogatories under Rule 33 or requests for inspection under Rule 34.413 Noncompliance is not excused by the argument that the sought-after discovery is objectionable, unless the non-disclosing party has a motion for protective order pending.414
The failure to provide the initial disclosures, expert witness reports, or pretrial disclosures of Rule 26(a), or the failure to supplement or amend a response pursuant to Rule 26(e), may lead to the preclusion from using at a hearing, motion, or at trial, evidence from any witness or information not disclosed.415 The party may avoid the sanction if its its failure to disclose was “substantially justified,” or if the failure is “harmless.”416 The court may additionally or alternatively award reasonable expenses, attorney's fees, and “other appropriate sanctions.”417 The court may issue an order to pay expenses, including fees, if a party or its attorney failed to participate in good faith in developing and submitting a Rule 26(f) proposed discovery plan.418
Serious obstruction of discovery may result in an order precluding the admission of certain evidence.419 Because issue-related sanctions are fundamentally remedial rather than punitive and do not preclude a trial on the merits, they do not require a heightened standard of proof. They may instead be imposed “whenever a preponderance of the evidence establishes that a party’s misconduct has tainted the evidentiary resolution of the issue.”420
Imposition of the ultimate sanctions for discovery abuse - the entry of a default judgment against the defendant and dismissal with prejudice against the plaintiff - generally requires a clear record of delay or contumacious conduct.421 When the guilty party engages in wholesale destruction of primary evidence regarding a number of issues for example, and the district court cannot fashion an effective issue-related sanction, default or dismissal may be granted.422 Courts of appeal also demand an explanation of why lesser sanctions were likely to be ineffective.423 However, this does not mean that courts must first impose the lesser sanction.424
Discovery problems can surface at trial when testimony changes and documents suddenly appear. When a witness changes testimony from that given at a deposition, you can impeach the witness on cross-examination. When, however, a document is produced that was not disclosed in response to a request for production or interrogatory, the producing party may argue that the request is unclear, that earlier production fully complied with the request, or that the material is newly discovered. Properly prepared document requests and interrogatories, as well as strategic requests for admission, protect against the first two arguments; thorough discovery requests should make the claim of newly discovered documents less than credible.
Trial courts have broad discretion—ranging from granting a continuance to excluding a document—in dealing with surprise documents. However, unless you can show prejudice or willful, bad-faith failure to produce, the court is likely to allow the document into evidence.425 Your opposition to admissibility is stronger if the document was omitted from disclosure required in a pretrial conference. The message is clear: discovery requires careful planning and execution and continuing vigilance.
- 1. Fed. R. Civ. P. 26(b)(1) (emphasis added).
- 2. Hickman v. Taylor, 329 U.S. 495, 507 (1947). The Court cautioned that discovery has "ultimate and necessary boundaries" that include inquiries into irrelevant or privileged matters or those conducted in bad faith. Id. at 507-08.
- 3. Herbert v. Lando, 441 U.S. 153, 177 (1979) (citing Schlagenhauf v. Holder, 379 U.S. 104, 114-115 (1964); Hickman, 329 U.S. at 501).
- 4. Herbert, 441 U.S. at 177. The Court also referenced the admonition that the Federal Rules of Civil Procedure "should be construed and administered to secure the just, speedy, and inexpensive determination of every action." Id. (citing Fed. R. Civ. P. 1). See Oppenheimer Fund, Incorporated. v. Sanders, 437 U.S. 340, 351-352 (1978) ("Consistently with the notice-pleading system established by the Rules, discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues . . . At the same time . . . [d]iscovery of matter not 'reasonably calculated to lead to the discovery of admissible evidence' is not within the scope of Rule 26(b)(1)." (further citation omitted)); 8 Charles Alan Wright et al., Federal Practice & Procedure Civ. § 2007 (3d ed.) ("[I]t should be kept in mind that a clear distinction is made between the right to obtain information by discovery and the right to use it at the trial. Rule 26(b) allows great freedom in discovery. The Federal Rules of Evidence generally control what may be used at the trial." (footnote omitted)).
- 5. Fed. R. Civ. P. 26(b)(1). In fact, the test for relevant evidence at trial is itself stated in broad terms. 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." Fed. R. Evid. 401.
- 6. See 2000 Amendments to Fed. R. Civ. P. 26(b)(1), advisory committee's notes.
- 7. Id.
- 8. Id.
- 9. Sanyo Laser Products, Incorporated v. Arista Records, Incorporated, 214 F.R.D. 496, 500 (S.D. Ind. 2003). Accord Fountain v. City of New York, No. 03 Civ. 4526 (S.D.N.Y. May 3, 2004); see also Henderson v. Property and Casualty Insurance Company of Hartford, No. 2:12-cv-00149 (D. Nev. Aug. 28, 2012) ("Most courts which have addressed the issue find that . . . Rule 26 still contemplate[s] liberal discovery, and that relevancy under Rule 26 is extremely broad." (citations omitted)); Wrangen v. Pennsylvania Lumbermans Mutual Insurance Company, 593 F. Supp.2d 1273, 1278 (S.D. Fla. 2008) ("[D]iscovery should ordinarily be allowed under the concept of relevancy unless it is clear that the information sought has no possible bearing on the claims and defenses of the parties or otherwise on the subject matter of the action." (citation omitted)).
- 10. See Auto-Owners Insurance Company v. Southeast Floating Docks, Incorporated, 231 F.R.D. 426, 430 (M.D. Fla. 2005) (While not without limits, "[t]he term 'relevant' in this definition is to be 'construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that bears on, any issue that is or may be in the case.'") (quoting Oppenheimer Fund, 437 U.S. at 351). Cory v. Aztec Steel Building, Incorporated, 225 F.R.D. 667, 670 (D. Kan. 2005) ("Relevancy is broadly construed, and a request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the claim or defense of any party." (citation and interior quotation marks omitted)). "Most courts which have addressed the issue find that . . . Rule 26 still contemplate[s] liberal discovery, and that relevancy under Rule 26 is extremely broad . . . Many cases confirm these overall observations. Indeed, courts continue to say that when the material sought is minimally relevant the burden is on the party opposing discovery to show that it is not relevant." 8 Charles Alan Wright et al., Federal Practice & Procedure Civ. § 2008 (3d ed.) (citations, footnotes, and interior quotation marks omitted). But see Collens v. City of New York, 222 F.R.D. 249, 253 (S.D.N.Y. 2004) ("While Rule 26(b)(1) still provides for broad discovery, courts should not grant discovery requests based on pure speculation that amount to nothing more than a 'fishing expedition' into actions or past wrongdoing not related to the alleged claims or defenses." (citations omitted)).
- 11. In re Cooper Tire & Rubber Company, 568 F.3d 1180, 1188-1189 (10th Cir. 2009) (quoting 2000 Amendments to Fed. R. Civ. P. 26(b)(1), advisory committee’s note) (further citations and footnotes omitted).
- 12. 2000 Amendments to Fed. R. Civ. P. 26(a), advisory committee's notes.
- 13. Thompson v. Deptartment of Housing & Urban Development, 199 F.R.D. 168, 172 (D. Md. 2001). See 2000 Amendments to Fed. R. Civ. P. 26(b)(1), advisory committee’s note ("In general, it is hoped that reasonable lawyers can cooperate to manage discovery without the need for judicial intervention.").
- 14. Fed. R. Civ. P. 26(b)(2) (C) (emphasis added).
- 15. Bottoms v. Liberty Life Assurance Company of Boston, No. 11-cv-01606, 2011 WL 6181423, at *4 (D. Colo. Dec. 13, 2011).
- 16. Miller v. Ricci, No. 11-859 (D.N.J. Feb. 26, 2013).
- 17. Crawford-El v. Britton, 523 U.S. 574, 598 (1998).
- 18. 8 Charles Alan Wright et al., Federal Practice & Procedure Civ. § 2008.1 (3d ed.).
- 19. Id.
- 20. Id. (footnote omitted). See 1983 Amendments to Fed. R. Civ. P. 26(b)(1), advisory committee’s note (emphasizing "even-handed" application of standards and acknowledging that "many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved.").
- 21. Fed. R. Civ. P. 26(a)(1)(A).
- 22. 2000 Amendments to Fed. R. Civ. P. 26(a), advisory committee's note. Courts have taken different approaches with respect to documents that may both have substantive content and value for impeachment purposes. This issue arises in situations in which the court must decide whether to preclude use of the previously undisclosed document. See McPheeters v. Black & Veatch Corporation, 427 F.3d 1095, 1105 (8th Cir. 2005); Lomascolo v. Otto Oldsmobile-Cadillac, Incorporated, 253 F. Supp. 2d 354, 359-60 (N.D.N.Y. 2003).
- 23. Fed. R. Civ. P. 26(a)(1)(B). A party may object at the Rule 26(f) conference that initial disclosures are not appropriate. This will require a case-specific order from the court on the objection. Fed. R. Civ. P. 26(a)(1)(C). If the parties "stipulate to bypass disclosure, the court can order exchange of similar information in managing the action under Rule 16." 2000 Amendments to Fed. R. Civ. P. 26(a), advisory committee's note.
- 24. 1993 Amendments to Fed. R. Civ. P. 26(a), advisory committee's note.
- 25. Fed. R. Civ. P. 26(a)(1)(E).
- 26. Id.
- 27. Fed. R. Civ. P. 37(c)(1). See, e.g., Hopkins v. J.C. Penney Co., 227 F.R.D. 347 (D. Kan. 2004) (order of dismissal without prejudice, subject to conditions upon refiling, as sanction for protracted delay in making Rule 26(a)(1) disclosures, coupled with failure to meet other discovery obligations).
- 28. Fed. R. Civ. P. 37(c)(1).
- 29. Sender v. Mann, 225 F.R.D. 645, 650 (D. Colo. 2004).
- 30. Southern States Rack & Fixture, Incorporated v. Sherwin-Williams Company, 318 F.3d 592, 597 (4th Cir. 2003) (addressing failure to supplement expert report pursuant to Rule 26(e), declining to make bad faith separate factor, but noting its relevance to fifth). See Fed. R. Civ. P. 37(c)(1) (sanctions applicable to failure to provide disclosures under Rules 26(a) or (e)).
- 31. Robinson v. Champaign Unit 4 School District, 412 F. App'x 873, 877 (7th Cir. 2011) (quoting 1993 Amendments to Fed. R. Civ. P. 26(a)(1), advisory committee’s note) (further citation omitted)).
- 32. Fed. R. Civ. P. 26(a)(4) (disclosures must be in writing, signed and served); Fed. R. Civ. P. 26(a)(1)(C), (D) (timing).
- 33. Fed. R. Civ. P. 26(e)(1).
- 34. Id.
- 35. See United States v. Merck-Medco Managed Care, 223 F.R.D. 330, 334-35 (E.D. Pa. 2004) (noting that parties were still engaged in discovery and that defendants could obtain needed information by “contacting the individuals; reviewing the list of persons noticed for deposition by Plaintiffs; taking depositions; and reviewing documents provided on an ongoing basis during discovery”).
- 36. Fed. R. Civ. P. 26(d)(2)(a).
- 37. Fed. R. Civ. P. 33(a)(1), (b)(2).
- 38. Fed. R. Civ. P. 5(a)(1)(C).
- 39. Fed. R. Civ. P. 5(d)(1).
- 40. See Fed. R. Civ. P. 33(a)(2) (“An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact….”). Contention interrogatories "seek to clarify the basis for or scope of an adversary's legal claims. The general view is that contention interrogatories are a perfectly permissible form of discovery, to which a response ordinarily would be required." Starcher v. Correctional Medical Systems, Incorporated, 144 F.3d 418, 421 n.2 (6th Cir. 1998).
- 41. Fed. R. Civ. P. 33(a)(2).
- 42. Fed. R. Civ. P. 33(a)(1). A “question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication.” 1993 Amendments to Fed. R. Civ. P. 33(a), advisory committee's note. Courts have struggled to resolve various disputes regarding how interrogatories are to be counted in order to determine compliance with the Rule. See, e.g., Krawczyk v. City of Dallas, No. CIV.A.3:03-CV-0584-D, 2004 WL 614842, at *3, 2004 U.S. Dist. LEXIS 30011, *7-9 (N.D. Tex. Feb. 27, 2004) (request for opinion or application of law to facts, coupled with requests for identification of relevant witnesses and their relevant statements held to constitute single interrogatory); Banks v. Office of the Senate Sergeant-at-Arms & Doorkeeper, 222 F.R.D. 7, 10 (D.D.C. 2004) (footnote omitted) (demand for information about event and demand for documents pertaining to it should be counted as two separate interrogatories; demands relating to single topic in single field of inquiry can be contained in one interrogatory); Security Insurance Company of Hartford v. Trustmark Insurance Comapny, No. Civ.3:01CV2198, 2003 WL 22326563, at *1 (D. Conn. Mar. 7, 2003) (“A subpart is discrete and regarded as a separate interrogatory when it is logically or factually independent of the question posed by the basic interrogatory . . . Or, stated differently, a subpart is independent and thus discrete when it is unnecessary to the understanding of a second subpart.”). Advocates should check their Local Rules to determine whether they define a "subpart."
- 43. Fed. R. Civ. P. 26(b)(2)(A), 33(a). Application of the Rule 26(b)(2)(C) factors frequently involves determining “whether the requesting party has adequately shown that the benefits of additional interrogatories outweigh the burden to the opposing party.” American Chiropractic Association v. Trigon Healthcare, Incorporated, No. 1:00CV00113, 2002 WL 534459, at *4 (W.D. Va. Mar. 18, 2002) (citation omitted). Advocates requesting permission to serve additional interrogatories must offer specific justification. Barker v. Am-Rail Construction, Incorporated, No. 02-2835 (W.D. Tenn. Feb. 26, 2004) (where plaintiff had already served 32 interrogatories, new counsel’s statement that “new discovery is needed into the policies and/or practices of Defendant” found insufficient to authorize more interrogatories).
- 44. Check your local Rules for discovery terms that may be already defined. For example, the U.S. District Court, District of Connecticut specifies definitions of various general terms used in written discovery, such as “identify” and “concerning.” D. Conn. L. Civ. Rule 26(c).
- 45. Fed. R. Civ. P. 26(g)(1). There is no duty to act on unsigned discovery disclosures, requests, responses, or objections, and they may be stricken by the court. Id. 26(g)(2).
- 46. Fed. R. Civ. P. 26(g)(2). The responding party is “required to inquire and investigate in order to learn about others’ knowledge . . . [and] must at least make a reasonable effort to obtain the information requested.” Interland, Incorporated v. Bunting, No. 1:04-CV-444-ODE, 2005 WL 2414990, at *6, 2005 U.S. Dist. LEXIS 36112, *19 (N.D. Ga. Mar. 31, 2005).
- 47. Fed. R. Civ. P. 26(g)(1).
- 48. Fed. R. Civ. P. 26(g)(3).
- 49. Fed. R. Civ. P. 33(b)(2).
- 50. Fed. R. Civ. P. 33(b)(3).
- 51. Fed. R. Civ. P. 33(b)(5);
- 52. Fed. R. Civ. P. 33(b)(1)(B). “In responding to an interrogatory, a party must include all information within his knowledge or control.” Hanley v. Como Inn, Incorporated, No. 99C1486, 2003 WL 1989607, at *4 (N.D. Ill. Apr. 28, 2003) (citation omitted). See Am. Int'l Specialty Lines Ins. Co. v. NWH, Inc., 240 F.R.D. 401, 413 (N.D. Ill. 2007).
- 53. Walls v. Paulson, 250 F.R.D. 48, 52 (D.D.C. 2008). See Saria v. Massachusetts Mutual Life Insurance Company, 228 F.R.D. 536, 538-539 (S.D. W. Va. 2005) (“When responses are only signed by an attorney, and not by the client, the attorney has effectively been made a witness . . . Rule 33, requiring verification and signature, is among the simplest of all the Rules of Procedure, and yet it is increasingly ignored.”).
- 54. 8B Charles Alan Wright et al., Federal Practice & Procedure Civ. § 2172 (3d ed.). Indeed, attorneys can be included among those officers and agents of corporations and government agencies who are authorized to answer interrogatories. Id.
- 55. 1993 Amendments to Fed. R. Civ. P. 37(a), advisory committee’s note. See Fed. R. Civ. P. 37(a)(4).
- 56. See NXP B.V. v. Blackberry Limited, No. 6:12-cv-498-Orl-22 (M.D. Fla. Oct. 31, 2013).
- 57. Colony Insurance Company v. Kuehn, No. 2:10-cv-01943, 2011 WL 4402738, at *4 (D. Nev. Sept. 20, 2011) (citing 8B Charles Alan Wright et al., Federal Practice & Procedure Civ. § 2177 (3d ed.) (further citations omitted)). This includes facts in its attorney's possession, even though they have not been transmitted to the party. Hickman, 329 U.S. at 504.
- 58. 1970 Amendments to Fed. R. Civ. P. 33(a), advisory committee’s note.
- 59. Fed. R. Civ. P. 33(b)(3).
- 60. Fed R. Civ. P. 33(b)(4).
- 61. See, e.g., Pegoraro v. Marrero, 281 F.R.D. 122, 128-129 (S.D.N.Y. 2012) (“Boilerplate objections that include unsubstantiated claims of undue burden, overbreadth and lack of relevancy, while producing no documents and answer[ing] no interrogatories ... are a paradigm of discovery abuse. A party resisting discovery has the burden of showing specifically how . . . each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive….) (citations and interior quotation marks omitted)); Covington v. Sailormen Incorporated, 274 F.R.D. 692, 693 (N.D. Fla. 2011) (“boilerplate, shotgun-style ‘General Objections’ . . . incorporated into every answer” to interrogatories “will not be tolerated by this Court….”) (citation omitted)).
- 62. Thomas v. Cate, No. 1:05-cv-01198-LJO-JMD-HC, 2010 U.S. Dist. LEXIS 21750, at *45 (E.D. Cal. Feb. 19, 2010); Masters v. Gilmore, No. 08-cv-02278 (D. Colo. Nov. 17, 2009); State Farm Mut. v. Injury Rehab. Clinic, Inc., No. 07-CV-15129, 2008 U.S. Dist. LEXIS 50507, at *11-12 (E.D. Mich. Jun. 30, 2008). See also Fed. R. Civ. P. 33(b)(4).
- 63. 8B Charles Alan Wright et al., Civ. § 2174 (3d ed.) (footnote omitted).
- 64. Fed. R. Civ. P. 26(b)(2)(C).
- 65. National Academy of Recording Arts & Sciences, Inc. v. On Point Events LP, 256 F.R.D. 678, 682 (C.D. Cal. 2009) (citing cases).
- 66. Fed. R. Civ. P. 33(d). See In re Cont'l Capital Inv. Servs., Inc., No. ADV 03-3370, 2009 WL 1661918, at *3 (Bankr. N.D. Ohio Mar. 6, 2009) (providing three boxes of documents in response to all interrogatories “without further specification as to which documents answer which interrogatory and without stating the extent to which those documents provide a complete response, if any at all, to each interrogatory is wholly inadequate.”) (citations omitted)); In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 351, 366-67 (N.D. Ill. 2005) (producing party could not invoke Rule 33(d) option where it had produced a million pages of documents and had only referred to them generally for their interrogatory answers, and where burden of reviewing documents was less for producing party, who, together with counsel, was more familiar with them).
- 67. 1970 Amendments to Fed. R. Civ. P. 33(c), advisory committee’s note.
- 68. Fed. R. Civ. P. 26(e)(1)(A).
- 69. Fed. R. Civ. P. 34(a). Requests can also be made under the rule to “permit entry on to designated land or other property possessed or controlled by the responding party” to "inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it." Id. 34(a)(2).
- 70. Fed. R. Civ. P. 30(b)(2), 34(c).
- 71. Fed. R. Civ. P. 26(d). As of December 1, 2015, the Federal Rules of Civil Procedure permit parties to make early Rule 34 requests more than 21 days after the summons and complaint are served. The date of service is considered the first Rule 26(f) conference.
- 72. Fed. R. Civ. P. 34(a)(1)(A).
- 73. In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995), cert. dismissed sub. nom Bankers Trust Co. v. Procter & Gamble Co., 517 U.S. 1205 (1996); see Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984). Accord Doggett v. Perez, No. CS-02-282-AAM, 2004 WL 2939600, at *6, 2004 U.S. Dist. LEXIS 29568, *17-19 (E.D. Wash. Mar. 4, 2004); Prokosch v. Catalina Lighting Incorporated, 193 F.R.D. 633, 636 (D. Minn. 2000).
- 74. Colon v. Blades, 268 F.R.D. 129, 132 (D.P.R. 2010) (quoting Green v. Fulton, 157 F.R.D. 136, 142 (D. Me. 1994)). Accord Collins v. Barth, No. 12-CV-6022G (W.D.N.Y. May 30, 2013).
- 75. Eley v. Herman, No. 1:04-CV-416, 2005 WL 3115304, at *2, 2005 U.S. Dist. LEXIS 30476, *4-7 (N.D. Ind. Nov. 21, 2005).
- 76. Chatman v. Felker, No. CIV S-03-2415 JAM KJM P, 2009 WL 173515, at *8, 2009 U.S. Dist. LEXIS 4747, at *21 (E.D. Cal. Jan. 23, 2009) (citing United States v. Int’l Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989)). Accord Super Film of America, Incorporated v. UCB Films, Incorporated, 219 F.R.D. 649, 653 (D. Kan. 2004); Klesch & Co. v. Liberty Media Corp., 217 F.R.D. 517, 520 (D. Colo. 2003).
- 77. See Bruggeman v. Blagojevich, 219 F.R.D. 430, 436 (N.D. Ill. 2004); Massaro v. Allingtown Fire Dist., No. Civ. 3:02CV537(PCD), 2003 WL 22305133, at *2, 2003 U.S. Dist. LEXIS 17927, *8 (D. Conn. Apr. 25, 2003) (“These requests constitute blanket requests seeking all documents relevant to the case without qualification and cannot be read as possessing the degree of particularity required by Fed. R. Civ. P. 34(b).”) (footnote omitted)).
- 78. Fed. R. Civ. P. 34(b)(2)(A), (B). Effective December 1, 2015, amendments to the Federal Rules of Civil Procedure made significant changes to Rule 34(b)(2). This chapter will be updated accordingly.
- 79. For example, a request for production of all documents that constitute an administrative record could reveal that agency action was arbitrary if the record did not contain documents that should have formed the basis of the agency decision.
- 80. See, e.g., Badalamenti v. Dunham’s Inc., 896 F.2d 1359, 1362 (Fed. Cir.), cert. denied, 498 U.S. 851 (1990).
- 81. Hall v. Sullivan, 231 F.R.D. 468, 474 (D. Md. 2005).
- 82. See Brenford Environmental System, L.P. v. Pipeliners of Puerto Rico, Incorporated, 269 F.R.D. 143, 146 (D.P.R. 2010).
- 83. Fed. R. Civ. P. 34(b)(2)(B), (C).
- 84. Bank of Mongolia v. M & P Global Fin. Serv., Inc., 258 F.R.D. 514, 519 (S.D. Fla. 2009) (citations omitted).
- 85. Burlington N. & Santa Fe Ry. v. U.S. Dist. Court, 408 F.3d 1142 (9th Cir.), cert. denied, 546 U.S. 939 (2005).
- 86. See Fed. R. Civ. P. 26(b)(2).
- 87. Fed. R. Civ. P. 34(b)(2)(E)(i). See Rothman v. Emory University, 123 F.3d 446, 455 (7th Cir. 1997). Persons producing documents in response to subpoenas must also organize and label them to correspond to the request, or otherwise provide them in the usual course of business. Fed. R. Civ. P. 45(d)(1). The “usual course of business” option may be unavailable for documents simply kept in storage, requiring them instead to be organized and labeled. In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 351, 363 (N.D. Ill. 2005). In any event, parties “are not at liberty under federal discovery rules to dump massive amounts of documents, which the . . . [responding parties] concede have ‘no logical order to them,’ . . . on their adversaries and demand that they try to find what they are looking for.” Id. (citations omitted).
- 88. In Consol. Equip. Corp. v. Assoc. Commercial Corp., 104 F.R.D. 101, 103 (D. Mass. 1985), the court held that dismissal was an appropriate sanction when the plaintiff responded to a request for production merely by offering to permit the defendant to inspect undifferentiated records contained in forty-seven feet of files.
- 89. Fed. R. Civ. P. 26(e)(1)(A).
- 90. Fed. R. Civ. P. 36(a)(1).
- 91. Id.
- 92. Fed. R. Civ. P. 26(b)(2)(A).
- 93. See, e.g., Henry v. Champlain Enterprises, Incorporated, 212 F.R.D. 73, 77 (N.D.N.Y. 2003); Russo v. Baxter Healthcare Corporation, 51 F. Supp. 2d 70, 79 (D.R.I. 1999).
- 94. See 1970 Amendments to Fed R. Civ. P. 36, advisory committee’s note (“[T]wo vital purposes” of Rule 36 are “first, to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be.”).
- 95. The court’s admonitions in Henry, 212 F.R.D. at 77, are instructive: “In order for this to be an orderly procedure, the requesting party bears the burden of setting forth its requests simply, directly, not vaguely or ambiguously, and in such a manner that they can be answered with a simple admit or deny without an explanation, and in certain instances, permit a qualification or explanation for purposes of clarification. That is, Requests for Admissions should be drafted in such a way that a response can be rendered upon a mere examination of the request. To facilitate clear and succinct responses, the facts stated within the request must be singularly, specifically, and carefully detailed.” (citations omitted).
- 96. See, e.g., United States v. Petroff-Kline, 557 F.3d 285, 292 (9th Cir. 2009); In re Carney, 258 F.3d 415, 419 (5th Cir. 2001); Lakehead Pipe Line Company v. American Home Assurance Company, 177 F.R.D. 454, 458 (D. Minn. 1997); United States v. Block 44, Lots 3, 6, 177 F.R.D. 695, 695 (D. Fla. 1997).
- 97. Compare, e.g., Bausch & Lomb, Incorporated v. Alcon Lab., Incorporated, 173 F.R.D. 367, 377 (W.D.N.Y. 1995), with Booth Oil Site Administrative Group v. Safety-Kleen Corporation, 194 F.R.D. 76, 80 (W.D.N.Y. 2000). See Henry, 212 F.R.D. at 80 (reviewing conflict in case law and finding that “more determinative as to the extent to which an ‘interpretation inquiry’ may be answered is the complexity of the document, which is at issue in the case. The more complicated the document, the stronger the objection to such an inquiry because the complexity obscures the Rule 36 intent to have simple and definitive answers.”).
- 98. See Fed. R. Civ. P. 36(a)(1)(B).
- 99. Fed. R. Civ. P. 36(a)(2).
- 100. Miller v. Holzmann, 240 F.R.D. 1, 4 (D.D.C. 2006).
- 101. Fed. R. Civ. P. 36(b). See, e.g., Rolscreen Company v. Pella Prods. Incorporated, 64 F.3d 1202, 1209 (8th Cir. 1995). A motion to permit withdrawal or amendment of an admission is directed to the court’s discretion, referencing whether the presentation of the merits is served and the party requesting the admission is not prejudiced as a result. Carney, 258 F.3d at 419; Fed. R. Civ. P. 36(b).
- 102. Armour v. Knowles, 512 F.3d 147, 154 (5th Cir. 2007) (footnote omitted).
- 103. Fed. R. Civ. P. 36(a)(3). The parties may stipulate to, or the court may order, a larger or shorter time for response. Id.
- 104. Armour, 512 F.3d at 154 n.9; Tillamook Country Smoker v. Tillamook County Creamery Association, 465 F.3d 1102, 1112 (9th Cir. 2006).
- 105. Fed. R. Civ. P. 36(b).
- 106. Conlon v. United States, 474 F.3d 616, 622-623 (9th Cir. 2007) (citations omitted).
- 107. Id. at 622 (citing 1970 Amendments to Fed R. Civ. P. 36(b), advisory committee’s note).
- 108. Fed R. Civ. P. 36(a)(4). See Concerned Citizens of Belle Haven v. Belle Haven Club, 223 F.R.D. 39, 44 (D. Conn. 2004) (“Such reasonable inquiry includes an investigation and inquiry of employees, agents, and others ‘who conceivably, but in realistic terms, may have information which may lead to or furnish the necessary and appropriate response.’ The inquiry may require venturing beyond the parties to the litigation and include, under certain limited circumstances, non-parties, but not strangers. The operative words are ‘reasonable’ and ‘due diligence’” (quoting Henry v. Champlain Enterprises, Incorporated, 212 F.R.D. 73, 78 (N.D.N.Y. 2003)).
- 109. Fed. R. Civ. P. 36(a)(4). Qualification is permitted when compelling “a succinct yes or no” would lead to unfair inferences arising from statements taken out of context. See Henry, 212 F.R.D. at 77-78 (citations omitted).
- 110. Fed. R. Civ. P. 36(a)(5).
- 111. Id. 36(a)(6). In the case of a responding party’s suspected failure to make reasonable inquiry prior to answering, the Rule “requires only that the party state that he has taken these steps” to “make reasonable inquiry and secure such knowledge and information as are readily obtainable by him.” 1970 Amendments to Fed. R. Civ. P. 36(a), advisory committee's note (emphasis added). Sanctions may be available under Rule 37(c) for a party failing to appropriately obtain information before answering . See Interland, 2005 WL 2414990, at *10, 2005 U.S. Dist. LEXIS 36112, at *35 (“Defendant has risked not making reasonable inquiry before asserting lack of knowledge as the basis for not admitting or denying Interland's requests. However, Defendant's statements that it cannot, after reasonable inquiry, admit or deny [the] requests . . . are sufficient. Defendant is warned, however, that if facts developed during trial or further litigation expose his failure to make a reasonable inquiry before responding to Interland's request, he will be held accountable pursuant to Rule 37(c).)”
- 112. Fed. R. Civ. P. 37(c)(2). The responding party may avoid such an order if the request for admission was held objectionable, the admission sought was not substantially important, there were reasonable grounds to believe the responding party might prevail on the matter, or if there were other good reasons for the failure to admit. Id.
- 113. Fed. R. Civ. P. 26(d)(1). A party may seek leave of court to conduct a deposition before the Rule 26(f) conference is held, if the deponent is expected to leave the United States and be unavailable for examination prior to that time. Fed. R. Civ. P. 30(a)(2)(A)(iii).
- 114. One purpose of the ten-deposition limit is to assure review under the standards of Rule 26(b)(2), absent agreement of the parties. Another objective reinforces the importance of the parties’ cooperation, in order “to emphasize that counsel have a professional obligation to develop a mutual cost-effective plan for discovery in the case.” 1993 Amendments to Fed. R. Civ. P. 30(a), advisory committee's note. See Sigala v. Spikouris, No. 00CV0983, 2002 WL 721078, at *4 (E.D.N.Y. Mar. 7, 2002) (party not allowed to exceed magistrate-imposed limit of 13 depositions under standards of Rule 26(b)(2), since she “failed to come forward with any evidence beyond pure speculation that the additional persons he sought to depose would provide any evidence that was not cumulative of that he could obtain (or had obtained) from persons he was permitted to depose.”).
- 115. See 1993 Amendments to Fed. R. Civ. P. 30(a), advisory committee’s note; see also Donohoe v. Bonneville International Corporation, 602 F. Supp. 2d 1, 4 n.2 (D.D.C. 2009).
- 116. See 2000 Amendments to Fed. R. Civ. P. 30(d), advisory committee’s note.
- 117. See 1993 Amendments to Fed. R. Civ. P. 30(a), advisory committee’s note; see also, State Farm Mutual Automobile Insurance Company v. New Horizont, Incorporated, 254 F.R.D. 227, 234 (E.D. Pa. 2008).
- 118. See 2000 Amendments to Fed. R. Civ. P. 30(d), advisory committee’s note.
- 119. Id.
- 120. Fed. R. Civ. P. 30(d)(1).
- 121. 2000 Amendments to Fed R. Civ. P. 30(d), advisory committee's note. See Grill v. Costco Wholesale Corp., No. C03-2450-RSM, 2004 WL 2314639, at *1 (W.D. Wash. Oct. 7, 2004) (finding good cause for order compelling additional time upon resumption of plaintiff’s deposition, where questioning referenced wide-ranging claims of discrimination and all relevant documents had not been produced); Boston Science Corporation v. Cordis Corporation, No. 5:02CV1474, 2004 WL 1945643 at *2 (N.D. Cal. Sept. 1, 2004) ("Considerations relevant to the granting of [such] extension of time include the need for additional time for full exploration of the theories upon which the witness relies, or where new information comes to light triggering questions that the discovering party would not have thought to ask at the first deposition.").
- 122. See 2000 Amendments to Fed. R. Civ. P. 30(d), advisory committee's note.
- 123. Fed. R. Civ. P. 39(c).
- 124. Fed. R. Civ. P. 45(a)(1)(C).
- 125. See Fed. R. Civ. P. 30(b)(1)-(3).
- 126. Fed. R. Civ. P. 30(a)(1). See Fed. R. Civ. P. 45.
- 127. See 8A Charles Alan Wright et al., Federal Practice & Procedure Civ. § 2107 (3d ed.).
- 128. Fed. R. Civ. P. 30(b)(6).
- 129. Fed. R. Civ. P. 28, 30(b)(5).
- 130. Fed. R. Civ. P. 30(b)(3)(A). Upon prior notice, a party may arrange, at its own cost, another method to record deposition testimony in addition to the one specified in the notice. Fed. R. Civ. P. 30(b)(3)(B).
- 131. Fed. R. Civ. P. 30(b)(3)(A).
- 132. Fed. R. Civ. P. 32(c).
- 133. Fed. R. Civ. P. 30(b)(4).
- 134. Fed. R. Civ. P. 28(a), 39(b)(4). See Aquino v. Automotive Service Industry Association, 93 F. Supp. 2d 922, 923-24 (N.D. Ill. 2000).
- 135. Fed. R. Civ. P. 30(b)(1).
- 136. See 8A Charles A. Wright et al., Federal Practice and Procedure Civ. § 2111 (3d ed.).
- 137. Fed. R. Civ. P. 26(c)(1)(B).
- 138. In the Eastern District for Virginia, for example, “reasonable notice” for taking a deposition in the continental United States is 11 days, absent factors such as complexity of the contemplated testimony and urgent needs to take the deposition at a particular time and place. E.D. Va. L. Civ. R. 30(H).
- 139. See National Community Reinvestment Coalition v. Novastar Financial, Incorporated, 604 F. Supp. 2d 26, 31 (D.D.C. 2009); Morin v. Nationwide Federal Credit Union, 229 F.R.D. 362, 363 (D. Conn. 2005); 8A Charles A. Wright et al., Federal Practice and Procedure Civ. § 2112 (3d ed.) .
- 140. Fed. R. Civ. P. 30(b), 45(a)(1)(A), (C), (D).
- 141. Fed. R. Civ. P. 30(b)(2).
- 142. Fed. R. Civ. P. 34(b)(2)(A). See Schultz v. Olympic Med. Center, No. C07-5377, 2008 WL 3977523, at *2 (W.D. Wash. Aug. 22, 2008) (deposition notice to party deponent requesting documents to be produced at deposition must comply with Rule 34 30-day notice requirement); see generally 8A Charles Alan Wright et al., Federal Practice & Procedure Civ. § 2108 (3d ed.).
- 143. See 1993 Amendments to Fed R. Civ. P. 30(c), advisory committee’s note (“[O]ther witnesses are not automatically excluded from a deposition simply by the request of a party.”).
- 144. Fed. R. Civ. P. 26(c)(1)(E). The order may include precluding excluded witnesses from reading or being informed about prior deposition testimony. Amendments to Fed R. Civ. P. 30(c), advisory committee’s note. Courts have “found good cause to restrict who may be present when the deponent is likely to be intimidated by a prospective attendee . . . [but have] declined to order sequestration based on a conclusory allegation or inchoate fear that witnesses who attend each other’s depositions will tailor their testimony to conform.” Veress v. Alumax/Alcoa Mill Products, Incorporated, No. 01-CV-2430 (E.D. Pa. May 20, 2002) (citations omitted).
- 145. As stated above, absent agreement, advocates may be forced to observe the 30-day time period for response, with respect to a party’s production of documents. See Fed. R. Civ. P. 34(b)(2)(A).
- 146. Fed. R. Civ. P. 32(d). An objection to a defect in the deposition notice is waived “unless promptly served in writing” on the party issuing the notice. Fed. R. Civ. P. 32(d)(1). An objection to the qualifications of the officer presiding over the deposition may be made promptly at a later date, if the basis for disqualification becomes known subsequently. Fed. R. Civ. P. 32(d)(2)(B).
- 147. Fed. R. Civ. P. 30(e)(1). The officer must attach to a certificate any changes made by the deponent. Fed. R. Civ. P. 30(e)(2).See Devon Energy Corp. v. Westacott, No. H–09–1689, 2011 WL 1157334, at *4–6 (S.D. Tex. Mar. 24, 2011) (discussing differing court approaches, ranging, e.g., from allowance solely of typographic or transcription errors, to retention of original and changed versions as subjects for impeachment, to “sham affidavit” analysis which potentially rejects, without adequate explanation, substantive contradiction of prior deposition testimony).
- 148. See, e.g., EBC, Incorporated v. Clark Building Systems, Incorporated , 618 F.3d 253, 265-266 (3d Cir. 2010); Rios v. Bigler, 67 F.3d 1543, 1552 (10th Cir. 1995); Blackthorne v. Posner, 883 F. Supp. 1443, 1451 (D. Or. 1995).
- 149. See Devon Energy Corporation v. Westacott, No. H–09–1689 (S.D. Tex. Mar. 24, 2011) (discussing differing court approaches, ranging, e.g., from allowance solely of typographic or transcription errors, to retention of original and changed versions as subjects for impeachment, to “sham affidavit” analysis which potentially rejects, without adequate explanation, substantive contradiction of prior deposition testimony).
- 150. The following is a sample list of preliminary questions and instructions to the deponent: (1) Have you ever been deposed before? (2) (If so), what was the nature of that proceeding? (3) (If so), what was the nature of your testimony in that proceeding? (4) I need you to give an audible response to my questions, so the reporter can prepare an accurate transcript. Is that understood? (5) If you do not hear a question, please say so and I will repeat it. Is that understood? (6) If you do not understand a question, please say so and I will rephrase it. Is that understood? (7) If you realize that an earlier answer you gave was inaccurate or incomplete, please say that you want to correct or supplement your earlier answer, and you will be allowed to do so. Is that understood? (8) If you want to stop to use the restroom, or to stretch your legs, or to get a cup of coffee or water, or to collect your thoughts, please say so and you will be permitted to do so. Is that understood? (9) I am not agreeing to allow you to privately confer with counsel during the deposition between a question and an answer, except for the purpose of determining the existence of a privileged communication. Conferring with your attorney during normal recesses and at adjournment of the deposition is permissible. Is that understood? (10) If you do not know or do not remember the information necessary to answer a question, please say so. Is that understood? (11) Please base your answers on what you have personally seen, heard, or otherwise know. Is that understood? (12) Do you understand the instructions I have just given you? (13) When you answer a question then, do you agree that I am entitled to assume, unless you otherwise tell me, that you have heard it, that you have understood it, and that you have given me your best recollection based on your personal knowledge? (14) Is there any reason why you cannot proceed at this time with this deposition?
- 151. Fed. R. Civ. P. 32(d)(3)(A).
- 152. See State Farm Mutual Automobile Insurance Company v. Dowdy, 445 F. Supp. 2d 1289, 1293 (N.D. Okla. 2006).
- 153. 8A Charles Alan Wright et al., Federal Practice & Procedure, Civ. § 2156 (3d ed.) (footnote omitted).
- 154. 1993 Amendments to Fed. R. Civ. P. 30(d), advisory committee’s note.
- 155. See State Farm Mutual Automobile Insurance Company, 445 F. Supp. 2d at 1293.
- 156. 1993 Amendments to Fed. R. Civ. P. 30(d), advisory committee's note.
- 157. Fed. R. Civ. P. 30(c)(2).
- 158. Id.
- 159. 1993 Amendments to Fed. R. Civ. P. 30(d), advisory committee’s note.
- 160. See Specht v. Google, Incorporated, 268 F.R.D. 596 (N.D. Ill. 2010) (counsel violated rule against speaking objections by instructing the witness not to answer question because that would be "guess" and by repeatedly making lengthy objections that tended to indicate desired response); McDonough v. Keniston, 188 F.R.D. 22, 24 (D.N.H. 1998) (“Speaking objections and coaching objections are simply not permitted in depositions in federal cases. . . . During his client's deposition plaintiff's counsel repeatedly violated Rule 30(d). In particular, [specified transcript pages] . . . contain classic examples of witness coaching, speaking objections and improper instructions not to answer”). But see Quantachrome Corporation v. MicroMeritics Instrument Corporation, 189 F.R.D. 697, 701 n.4 (S.D. Fla. 1999) (with respect to objections as to form, “it may be necessary to provide a brief explanation or clarification of the objection. Such explanation or clarification should be provided only at the request of deposing counsel and should be succinctly and directly stated without suggesting an answer to the deponent.”).
- 161. Hall v. Clifton Precision, 150 F.R.D. 525, 529 (E.D. Pa. 1993). Accord South Louisiana Ethanol, L.L.C. v. Fireman’s Fund Ins. Co., No. 11-2715, 2013 WL 1196604, at *7 (E.D. La. Mar. 22, 2013) (finding “clearly inappropriate” conduct of counsel in “unilaterally taking a ‘break’ in the deposition, and speaking to [the deponent] . . . outside the deposition”) (footnote omitted)); Chassen v. Fidelity Nat. Title Ins. Co., No. 09-291 (ES), 2010 WL 5865977, at *1 (D.N.J. July 21, 2010) (court has adopted Hall ruling “to restrict attorney-client conferences once a deposition has begun”) (citation omitted)).
- 162. See, e.g., Murray v. Nationwide Better Health, No. 10-3262 (C.D. Ill. Aug. 24, 2012); In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614, 621 (D. Nev. 1998) (court "will not preclude an attorney, during a recess that he or she did not request, from making sure that his or her client did not misunderstand or misinterpret questions or documents, or attempt to rehabilitate the client by fulfilling an attorney's ethical duty to prepare a witness”).
- 163. United States v. Philip Morris, 212 F.R.D. 418, 420 (D.D.C. 2002).
- 164. See Hall, 150 F.R.D. at 529.
- 165. See Chassen, 2010 WL 5865977, at *1 (court permitted deposing attorney to question witness about conversation with counsel during deposition break, where no evidence presented that discussion concerned privilege, and where attorney had “right to explore whether the discussions counsel had with the Plaintiff during the recess may have influenced her testimony, thus interfering with the fact-finding goal of the deposition process”) (citing Hall, 150 F.R.D. at 528)).
- 166. Fed. R. Civ. P. 30(c)(2).
- 167. Layne Christensen Company v. Bro-Tech Corporation, No. 09-2381 (D. Kan. Oct. 6, 2011) (quoting Resolution Trust Corporation v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995)).
- 168. Van Stelton v. Van Stelton, No. C11-4045 (N.D. Iowa Oct. 9, 2013).
- 169. See Odone v. Croda Int’l PLC, 170 F.R.D. 66, 68 n.3 (D.D.C. 1997) (“It is well settled that in the course of a deposition, an attorney is prohibited from engaging in so-called Rambo litigation, in which he attacks every question posed by the opposing counsel thus preventing the elicitation of any meaningful testimony from the witness. The attorney also may not object to questions in such a way as to ‘coach’ the witness or suggest an answer.”) (citation omitted).
- 170. Redwood v. Dobson, 476 F.3d 462, 469-470 (7th Cir. 2007) (censuring counsel for “shameful” conduct at deposition, including purported ignorance of ordinary words, asking questions with no apparent relevance, such as whether witness had engaged in homosexual conduct or had been ordered to obtain psychiatric counseling, and improper instructions not to respond).
- 171. Fed. R. Civ. P. 30(d)(2).
- 172. Horton v. Maersk Line, Limited, No. CV412-127 (S.D. Ga. Sept. 9, 2013).
- 173. Id. See Soule v. RSC Equipment Rental, Incorporated, No. 11-2022 (E.D. La. Oct. 18, 2012) (“The Court hereby terminates the deposition of [the deponent], . . . orders that future depositions be conducted in a professional manner, and enjoins the following conduct: (1) yelling or raising voices; (2) pounding on the table; (3) using a confrontational or argumentative tone or language; (4) accusing witnesses of lying, providing false testimony, or providing testimony that is not true; and (5) disrupting or cutting off witness responses.”); Landers v. Kevin Gros Offshore, L.L.C., No. 08-1293-MVL-SS (E.D. La. July 13, 2009) (monetary sanctions ordered against attorney, where he “repeatedly interrupted the witness and would not let him complete his answer and provide his explanation. His tone of voice can best be described as yelling. Many of his questions were improper.”); Heriaud v. Ryder Transp. Servs., No. 03C0289, 2005 WL 2230199, at *9 (N.D. Ill. Sept. 8, 2005) (barring expert witness from testifying at trial, because at expert’s deposition, counsel “was unprofessional, obstreperous, and obstructive; his witness followed his lead and similarly impeded the discovery process.”)
- 174. Fed. R. Civ. P. 30(d)(3).
- 175. Some courts may have local rules specifying appropriate conduct at depositions. See Neuberger Berman Real Estate Income Fund, Incorporated v. Lola Brown Trust No. 1B, 230 F.R.D. 398, 421 (D. Md. 2005) (referencing local district “discovery guidelines”); McKinley Infuser, Incorporated v. Zdeb, 200 F.R.D. 648, 650 (D. Colo. 2001) (same).
- 176. The following is a sample set of instructions to a prospective deponent: (1) Never speculate or guess. (2) Do not volunteer any information; answer only the question asked. (3) Do not get angry or emotional-you will not think as clearly. (4) Just answer the question that is asked. (5) Do not anticipate the question. (6) Wait until opposing counsel finishes his question. (7) If you do not remember, say so. (8) Ask to look at a document if you are asked questions about it. (9) If asked to look at any document, read the whole thing. (10) Even if asked for an estimate, do not guess. (11) Never answer just “yes” or “no” if you want to explain. (12) Do not try to be funny or witty-this is a formal proceeding. (13) Listen to my objections-they are made for a reason. (14) Beware of opposing counsel’s friendliness-do not drop your guard. (15) Try not to give absolute, definitive answers. E.g., avoid words such as “never” or “always” if there is any doubt. Better: “That’s all I can remember at this time.” (16) Treat opposing counsel with respect even if you do not like him. (17) Come to the deposition well groomed. (18) Beware of an inadequate summary of your testimony by opposing counsel. (19) Do not feel like you have to prove your case at the deposition. (20) Pause before answering to give yourself time to think.
- 177. See Fed. R. Civ. P. 32(d)(3).
- 178. Fed. R. Civ. P. 32(d)(3)(B).
- 179. Fed. R. Civ. P. 30(c)(2).
- 180. Fed. R. Civ. P. 30(e).
- 181. Fed. R. Civ. P. 30(e)(1)(B).
- 182. Compare, e.g., Greenway v. International Paper Company, 144 F.R.D. 322, 325 (W.D. La. 1992) (errata sheet cannot be used to "alter what was said under oath. . . . A deposition is not a take home examination."), with Reilly v. TXU Corporation, 230 F.R.D. 486, 490 (N.D. Tex. 2005) ("broad interpretation of Rule 30(e) . . . is consistent with the plain language of the Rule, which expressly contemplates 'changes in form or substance' accompanied by a signed statement reciting the reasons for the changes"). See generally Christopher Macchiaroli & Danielle Tarin, Rewriting the Record: A Federal Court Split on the Scope of Permissible Changes to a Deposition Transcript, 3 Fed. Cts. L. Rev. 1 (2009); Richard G. Stuhan & Sean P. Costello, Rule 30(e): What You Don’t Know Could Hurt You, 17 Prac. Litigator 7 (2006) (reviewing case law approaches).
- 183. Fed. R. Civ. P. 30(e)(1).
- 184. See, e.g., Unlimited Resources Incorporated v. Deployed Resources, LLC, No. 3:07-cv-961-J-25MCR (M.D. Fla. Jan. 5, 2010).
- 185. See 8A Charles Alan Wright et al., Federal Practice & Procedure Civ. § 2103 (3d ed.) (“Obviously it is not literally possible to take the deposition of a corporation; instead, when a corporation is involved, the information sought must be obtained from natural persons who can speak for the corporation.”); see generally Greg Bass, Using Federal Rule of Civil Procedure 30(b)(6) to Depose an Organization and Avoid the “Discovery Runaround,” 40 Clearinghouse Review 672 (March-April 2007).
- 186. Fed. R. Civ. P. 30(b)(6).
- 187. Id. A deposition subpoena to a nonparty organization must advise the entity of its duty to designate individuals to be deposed. Id.
- 188. 1970 Amendments to Fed. R. Civ. P. 30(b)(6), advisory committee’s note (citation omitted).
- 189. McKesson Corporation v. Islamic Republic of Iran, 185 F.R.D. 70, 79 (D.D.C. 1999). Unless the information requested was unknown or inaccessible at the time of deposition, the deposed entity may not, at trial, introduce evidence contradicting the evidence supplied by its designee. Dorocon, Incorporated v. Burke, 2005 U.S. Dist. LEXIS 38839, at *61-62 (D.D.C. Nov. 1, 2005).
- 190. Dongguk University v. Yale University, 270 F.R.D. 70, 74 (D. Conn. 2010) (citing State of New Jersey v. Sprint Corporation, No. 03-2071-JWL, 2010 WL 610671, at *2 (D. Kan. Feb. 19, 2010) (interior quotation marks omitted)). In a Rule 30(b)(6) deposition, “there is no distinction between the corporate representative and the corporation.” Instead of giving a personal opinion, the designee presents the corporation’s position on the deposition topic. “The designee testifies on behalf of the corporation and thus holds it accountable.” E.E.O.C. v. Thorman & Wright Corporation, 243 F.R.D. 421, 425 (D. Kan. 2007) (citations and footnotes omitted).
- 191. Booker v. Massachusetts Department of Public Health, 246 F.R.D. 387, 389 (D. Mass. 2007). See Kyoei Fire & Marine Ins. Co. v. M/V Maritime Antalya, 248 F.R.D. 126, 152-153 (S.D.N.Y. 2007) (production of unprepared Rule 30(b)(6) deponent “amounts to a non-appearance” warranting sanctions).
- 192. Alexander v. FBI, 186 F.R.D. 148, 151 (D.D.C. 1999). Accord Reilly v. Natwest Markets Group Incorporated, 181 F.3d 253, 268 (2d Cir. 1999), cert. denied, 528 U.S. 1119 (2000); Skyline Potato Company v. Tan-O-On Marketing, Incorporated, No. CIV 10–0698 JB/RHS, 2012 WL 3150385, at *5 (D. N. M. July 30, 2012).
- 193. See, e.g., EEOC v. Caesars Entertainment, Inc., 237 F.R.D. 428, 432 (D. Nev. 2006); McMahon v. Presidential Airways, 2006 U.S. Dist. LEXIS 4909, at *11-12 (M.D. Fla. Jan. 18, 2006); Detoy v. City of San Francisco, 196 F.R.D. 362, 367 (N.D. Cal. 2000); Cabot Corp. v. Yamulla Enters., 194 F.R.D. 499, 499 (M.D. Pa. 2000). But see Tri-State Hospital Supply Corp. v. United States, 226 F.R.D. 118, 125 (D.D.C. 2005) (order eliminating “but not limited to” language contained in Rule 30(b)(6) list of enumerated categories of areas to be inquired into, since “[l]isting several categories and stating that the inquiry may extend beyond the enumerated topics defeats the purpose of having any topics at all.”).
- 194. Falchenberg v. New York State Department of Education, 567 F. Supp. 2d 513, 521 (S.D.N.Y. 2008).
- 195. Consolidated Rail Corporation. v. Grand Trunk Western Railroad Company, 853 F. Supp. 2d 666, 670 (E.D. Mich. 2012) (quoting Prosonic Corporation v. Stafford, No. 07–cv–0803, 2008 WL 2323528, at #3 (S.D. Ohio June 2, 2008)).
- 196. Calzaturficio v. Fabiano Shoe Co., 201 F.R.D. 33, 37 (D. Mass. 2001) (quoting Prokosch v. Catalina Lighting Inc., 193 F.R.D 633, 639 (D. Minn. 2000)). See also Bank of N.Y. v. Meridien Biao Bank Tanzania, Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997) (deponent must be prepared “to the extent matters are reasonably available, whether from documents, past employees, or other sources”); United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996).
- 197. Concerned Citizens of Belle Haven v. Belle Haven Club, 223 F.R.D. 39, 43 (D. Conn. 2004) (organization not absolved of responsibility to produce knowledgeable deponent even though “the documentation may be voluminous, and different people affiliated with the [organization] . . . may hold the information”); Prokosch, 193 F.R.D. at 638 (“the burden upon the responding party, to prepare a knowledgeable Rule 30 (b)(6) witness, may be an onerous one, but we are not aware of any less onerous means of assuring that the position of a corporation that is involved in litigation, can be fully and fairly explored”).
- 198. See Nacco Materials Handling Group, Incorporated v. Lilly Company, 278 F.R.D. 395, 401 (W.D. Tenn. 2011).
- 199. State Farm Mut. Auto. Ins. Co. v. New Horizont, Incorporated, 250 F.R.D. 203, 216 (E.D. Pa. 2008); Prokosch, 193 F.R.D. at 638 (a corporation must prepare its deponents “so that they may give complete, knowledgeable and binding answers on behalf of the corporation”); Taylor, 166 F.R.D. at 361 (“the designee [under Rule 30(b)(6)] must not only testify about facts within the corporation’s knowledge, but also its subjective beliefs and opinions.... The corporation must provide its interpretation of documents and events”).
- 200. 8A Charles Alan Wright et al., Federal Practice & Procedure Civ. § 2103 (3d ed.) (footnote and interior quotation marks omitted).
- 201. See Detoy v. City and County of San Francisco, 196 F. R. D. 362, 367 (N. D. Cal. 2000).
- 202. Fed. R. Civ. P. 45(a)(1)(C), 45(c)(2)(A).
- 203. Fed. R. Civ. P. 45(a)(3).
- 204. See United Technologies Corporation v. Mazer, No. 05-80980-CIV, 2007 WL 788877, (S.D. Fla. Mar. 14, 2007).
- 205. Fed. R. Civ. P. 45(a)(1)(A)(iii). See 9A Charles Alan Wright et al., Federal Practice & Procedure Civ. § 2456 (3d ed.).
- 206. Fed. R. Civ. P. 45(a)(2).
- 207. 1991 Amendments to Fed. R. Civ. P. 45, advisory committee's note.
- 208. James v. Booz-Allen & Hamilton, Inc, 206 F.R.D. 15,19 (D.D.C. 2002).
- 209. See Fed. R. Civ. P. 45(b)(1).
- 210. See Franklin v. State Farm Fire & Cas. Co., 2009 U.S. Dist. LEXIS 90687, at *3 (E.D. Mich. Sept. 30, 2009); Hall v. Sullivan, 229 F.R.D. 501, 503-06 (D. Md. 2005) (collecting conflicting authority).
- 211. Fed. R. Civ. P. 45(b)(1); Potomac Elec. Power Co. v. Electric Motor Supply, Inc., 190 F.R.D. 372, 380 (D. Md. 1999).
- 212. Fed. R. Civ. P. 45(b)(1). See 28 U.S.C. § 1821. A court may issue an order protecting a non-party from “significant expense” resulting from a subpoena requesting the production of documents. Fed. R. Civ. P. 45(c)(2)(B).
- 213. See Malik v. Lavalley, 994 F.2d 90 (2d Cir. 1993).
- 214. Fed. R. Civ. P. 45(b)(2). See 28 U.S.C. § 1785.
- 215. Fed. R. Civ. P. 45(b)(4).
- 216. Fed. R. Civ. P. 45(c)(1).
- 217. 1991 Amendments to Fed. R. Civ. P. 45(b), advisory committee’s note.
- 218. See, e.g., Williams v. Blagojevich, No. 05-C-4673, 2008 WL. 68680, at *3 (N.D. Ill. Jan. 2, 2008).
- 219. See, e.g., Wiwa v. Royal Dutch Petroleum Company, 392 F.3d 812, 818 (5th Cir. 2004).
- 220. Fed. R. Civ. P. 45(c)(2)(B).
- 221. Id.
- 222. Fed. R. Civ. P. 45(d).
- 223. Fed. R. Civ. P. 45(c)(3).
- 224. Fed. R. Civ. P. 45(c)(3)(A).
- 225. See, e.g., Innomed Labs, LLC v. Alza Corp., 211 F.R.D. 237, 240 (S.D.N.Y. 2002).
- 226. Fed. R. Civ. P. 45(c)(3)(A).
- 227. Fed. R. Civ. P. 45(c)(3)(B).
- 228. Fed. R. Civ. P. 45(c)(3)(C).
- 229. Peter Lyman & Hal R. Varian, How Much Information? 2003, at 1 (executive summary). Five exabytes is equivalent to “[a]ll words ever spoken by human beings.” Id. at 4.
- 230. Id.
- 231. Id. at 2.
- 232. Julia Berman et al., Potential Ethical Pitfalls in Electronic Discovery, 161 PLI/NY 305, 311 (2006) (citing Harvey L. Kaplan, Electronic Discovery in the 21st Century: Is Help on the Way? 733 PLI/Lit 65, 67 (2005)).
- 233. Barbara J. Rothstein et al., Federal Judicial Center, Managing Discovery of Electronic Information: A Pocket Guide for Judges 2 (2007) (hereinafter “Pocket Guide for Judges”).
- 234. Id. at 2.
- 235. Erik Harris, Discovery of Portable Electronic Devices, 61 Alabama Law Review 193 (2009).
- 236. Cindy Pham, E-Discovery in the Cloud Era: What’s a Litigant to Do?, 5 Hastings Science & Technology Law Journal 139, 144 (2013).
- 237. Id. at 142-143.
- 238. John G. Browning, With “Friends” Like These, Who Needs Enemies? Passwords, Privacy, and the Discovery of Social Media Content, 36 Am. J. Trial Advoc. 505, 505-506 (2013) (footnotes omitted).
- 239. Sedona Conference, The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production 2-5 (2d ed. 2007) (hereinafter “Sedona Principles”).
- 240. Cynthia A. Mellon Balmer et al., Not So Fast . . . "Send" is a Four-Letter Word: The Implications of Electronic Discovery, 15 Fidelity Law Association Journal 149, 151 (2009) (footnote omitted).
- 241. Institute for the Advancement of the American Legal System, Navigating the Hazards of E-Discovery: A Manual for Judges in State Courts Across the Nation 3 (2d ed. 2012) (footnote omitted) (hereinafter “Navigating the Hazards of E-Discovery”). As Robert Medved, former clerk for the U.S. District Court for the Central District of California, put it:
If you are assuming that you need not be concerned with the discovery of electronically stored information or the E-Discovery Rule Amendments since you do not litigate in federal court, or do not represent large clients, or do not represent high-tech clients, or do not litigate big cases, or do not practice intellectual property law, you may want to rethink that assumption.
Salvatore Joseph Bauccio, E-Discovery: Why and How E-Mail is Changing the Way Trials Are Won and Lost, 45 Duquesne Law Review 269, 270 n.7 (2007) (quoting Robert A. Medved, E-Discovery and the Proposed Amendments to the Federal Rules of Civil Procedure: A Primer (2006)). This has also held true for discovery of social media content. See Browning, supra note 239, at 506-507 (noting that despite relatively recent development of social networking, there has been “an explosion of published cases involving social media content” and that in both “case investigation and formal discovery, attorneys are ‘digging for the digital dirt’ on opposing parties, witnesses and even their own clients” on social media sites (footnote omitted)).
- 242. Pocket Guide for Judges, supra note 233, at 1.
- 243. See Fed. R. Civ. P. 16, 26, 34, 37.
- 244. See generally Greg Bass, Affirmatively Litigating: "The Computer Ate My Homework, Your Honor": What You Need to Know about the Electronic Discovery Amendments to the Federal Rules of Civil Procedure, 41 Clearinghouse Review 532 (Jan.-Feb. 2008).
- 245. See Fed. R. Civ. P. 34(a) (1970) (amended 2006); 1970 Amendments to Fed. R. Civ. P. 34(a), advisory committee’s note (“The inclusive description of ‘documents’ is revised to accord with changing technology . . . In many instances, this means that respondent will have to supply a print-out of computer data.”); see also Bills v. Kennecott Corporation, 108 F.R.D. 459, 461 (D. Utah 1985) (Rule 34 was amended in 1970 “to make it clear that discovery of the magnetic and electronic impulses involved in computer-stored information was appropriate.”).
- 246. 8B Charles Alan Wright et al., Federal Practice & Procedure Civ. § 2218 (3d ed.) (footnote omitted).
- 247. 2006 Amendments to Fed. R. Civ. P. Rule 34, advisory committee's note.
- 248. Fed. R. Civ. P. 34(a)(1)(A).
- 249. See Fed. R. Civ. P. 34(a)(1)(A), (B).
- 250. 2006 Amendments to Fed. R. Civ. P. Rule 34, advisory committee's note (“Rule 34(a) is amended to confirm that electronically stored information stands on equal footing with discovery of paper documents.”).
- 251. 2006 Amendments to Fed. R. Civ. P. 34(a), advisory committee’s note (“. . . a Rule 34 request for production of ‘documents’ should be understood to encompass, and the response should include, electronically stored information unless discovery in the action has clearly distinguished between electronically stored information and ‘documents.’”). Before adoption of the 2006 amendments, courts similarly held that requests for “documents” broadly encompassed ESI such as emails. See, e.g., Mosaid Technologies, Incorporated v. Samsung Electronics Company, 348 F. Supp. 2d 332, 336 (D.N.J. 2004) (“After all, ‘e-mail’ is short for ‘electronic mail,’ which any reasonable litigant would understand qualifies as a ‘letter,’ ‘correspondence,’ ‘communication,’ etc.”).
- 252. See Fed. R. Civ. P. 34(a)(1). As the Advisory Committee explained:
The wide variety of computer systems currently in use, and the rapidity of technological change, counsel against a limiting or precise definition of electronically stored information. Rule 34(a)(1) is expansive and includes any type of information that is stored electronically . . . The rule covers - either as documents or as electronically stored information – information ‘stored in any medium,’ to to encompass future developments in computer technology. Rule 34(a)(1) is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.
2006 Amendments to Fed. R. Civ. P. 34(a), advisory committee’s note.
- 253. See, e.g., Columbia Pictures, Incorporated v. Bunnell, 245 F.R.D. 443, 447 (C.D. Cal. 2007) (“ephemeral” computer storage medium of random access memory (RAM) data held discoverable as ESI, in light of “clear evidence that Rule 34(a)’s scope was intended to be as broad as possible”).
- 254. See 2006 Amendments to Fed. R. Civ. P. 34(a), advisory committee’s note.
- 255. Id. (“References to ‘documents’ [alone] . . . should be interpreted to include electronically stored information as circumstances warrant.”).
- 256. Fed. R. Civ. P. 34(b)(1)(C).
- 257. 2006 Amendments to Fed. R. Civ. P. 34(b), advisory committee’s note.
- 258. Id.
- 259. Fed. R. Civ. P. 34(b)(2)(E)(ii). The Rule doesn’t require a responding party to produce the same ESI in more than one form. Fed. R. Civ. P. 34(b)(2)(E)(iii).
- 260. Fed. R. Civ. P. 34(a)(1)(A).
- 261. 2006 Amendments to Fed. R. Civ. P. 34(b), advisory committee’s note.
- 262. Id.
- 263. Id.
- 264. Fed. R. Civ. P. 34(b)(2)(A), (B), (D).
- 265. 2006 Amendments to Fed. R. Civ. P. 34(b), advisory committee’s note. Simply producing ESI without identifying the form in advance, as required by the Rule, runs the risk of the requesting party being able to show that the produced form is not reasonably usable. Id.
- 266. 2006 Amendments to Fed. R. Civ. P. 34(b), advisory committee’s note.
- 267. See Philip J. Favro, A New Frontier in Electronic Discovery: Preserving and Obtaining Metadata, 13 B.U.J. Sci. & Tech. L. 1, 7-10 (2001).
- 268. See, e.g., Aguilar v. Immigration and Customs Enforcement Division, 255 F.R.D. 350, 360 (S.D.N.Y. 2008) (although court “certainly would have entertained” request for metadata had it been made earlier, civil rights plaintiffs who had not formally asked for discovery of metadata when they initially sought defendant federal agency's responsive electronic mail messages, and had delayed making request until agency's process of harvesting e-mails was largely complete, were not entitled to compelled retransmittal of responsive e-mails in form that preserved original metadata); Williams v. Sprint/United Management Company, No. 03-2200 (D. Kan. Dec. 12, 2006) (finding that plaintiffs had agreed to production of hard copies of emails and had not shown they needed alternate version, court denied request for re-production of emails and their attachments in native electronic format). As one commentator explained, a court’s decision regarding format generally, and metadata specifically, frequently:
. . . revolves around whether the requesting party wants the information in “native format” or in traditional paper format . . . In other words, the “native format” of a document is the form in which it is “ordinarily maintained,” to use Rule 34's language. In many cases, the native format will be sufficient because the software necessary to view the information and its associated metadata is easily obtained, including word-processing programs such as Word and WordPerfect, spreadsheet programs like Excel, and the like. In other cases, native format is not the ideal choice for the requesting party's purposes because it would require particular software that is expensive or necessary only for the particular case.
Rachel K. Alexander, E-Discovery Practice, Theory, and Precedent: Finding the Right Pond, Lure, and Lines Without Going on a Fishing Expedition, 56 South Dakota Law Review 25, 68 (2011) (hereinafter “E-Discovery Practice, Theory, and Precedent”).
- 269. Fed. R. Civ. P. 26(f)(3)(C). See generally Greg Bass, Affirmatively Litigating: How the Federal Rules of Civil Procedure Require Early Case Planning: The Rule 26(f) Conference, 41 Clearinghouse Review 88 (May-June 2007).
- 270. 2006 Amendments to Fed. R. Civ. P. 26(f), advisory committee’s note.
- 271. Aguilar, 255 F.R.D. at 358.
- 272. See Scotts Co. LLC v. Liberty Mut. Ins. Co., No. 2:06-CV-899, 2007 WL 1723509, at *4 (S.D. Ohio June 12, 2007) (refusing to decide whether ESI in requested format need be produced, because it was unclear “whether the parties have fully exhausted extra-judicial efforts to resolve” dispute). In Covad Communications Company v. Revonet, Incorporated, the court assessed costs against both parties regarding non-production of emails in native format, observing:
Since both parties went through the same stop sign . . . This whole controversy could have been eliminated had Covad asked for the data in native format in the first place or had Revonet asked Covad in what format it wanted the data before it presumed that it was not native. Two thousand dollars is not a bad price for the lesson that the courts have reached the limits of their patience with having to resolve electronic discovery controversies that are expensive, time consuming and so easily avoided by the lawyers' conferring with each other on such a fundamental question as the format of their productions of electronically stored information.
Covad Communications Company v. Revonet, Incorporated, 254 F.R.D. 147, 151 (D.D.C. 2008).
- 273. See, e.g., L. Civ. R. 26.1(d)(3) (D.N.J.) (mandating discussion of “[p]reservation and production of digital information; procedures to deal with inadvertent production of privileged information; whether restoration of deleted digital information may be necessary; whether back up or historic legacy data is within the scope of discovery; and the media, format, and procedures for producing digital information [and] . . .[w]ho will bear the costs of preservation, production, and restoration (if necessary) of any digital discovery.”).
- 274. See Sedona Principles, supra note 239, at 21 (“So-called ‘any and all’ discovery requests that lack particularity in identifying the responsive time period, subject area, or people involved, should be discouraged, along with blanket objections of ‘overbreadth.’”).
- 275. See 2006 Amendments to Fed. R. Civ. P. 26(f), advisory committee’s note.
- 276. Fed. R. Civ. P. 26(b)(2)(B).
- 277. See 2006 Amendments to Fed. R. Civ. P. 26(b)(2), advisory committee’s note. In fact, the U.S. Supreme Court recognized this many years ago. See Oppenheimer Fund, 437 U.S. at 362 (“[A]lthough it may be expensive to retrieve information stored in computers when no program yet exists for the particular job, there is no reason to think that the same information could be extracted any less expensively if the records were kept in less modern forms. Indeed, one might expect the reverse to be true, for otherwise computers would not have gained such widespread use in the storing and handling of information.”).
- 278. 2006 Amendments to Fed. R. Civ. P. 26(b)(2), advisory committee's note.
- 279. 2006 Amendments to Fed. R. Civ. P. 26(b)(2), advisory committee’s note.
- 280. Id.
- 281. 2006 Amendments to Fed. R. Civ. P. Rule 26(b)(2), advisory committee's note.
- 282. See Sedona Principles, supra note 239, at 46; see also 2006 Amendments to Fed. R. Civ. P. 34(b), advisory committee’s note.
- 283. Fed. R. Civ. P. 26(b)(2)(B).
- 284. 2006 Amendments to Fed. R. Civ. P. Rule 26(b)(2), advisory committee's note.
- 285. Id.
- 286. Id.
- 287. Fed. R. Civ. P. 26(b)(2)(B). This may include attaching “conditions for the discovery,” including limits on the amount, type, or sources of information that must be accessed and produced. Id.
- 288. Fed. R. Civ. P. 26(b)(2)(C). See discussion in this MANUAL, supra at § 6.2.A.
- 289. 2006 Amendments to Fed. R. Civ. P. 26(b)(2), advisory committee’s note.
- 290. Fed. R. Civ. P. 34(a)(1).
- 291. 2006 Amendments to Fed. R. Civ. P. 34(a), advisory committee’s note.
- 292. E-Discovery Practice, Theory, and Precedent, supra note 268, at 61-62. See also Sedona Principles, supra note 239, at 57.
- 293. See The Sedona Conference, The Sedona Conference Commentary on Achieving Quality in the E-Discovery Process, 10 Sedona Conf. J. 299, 315-320 (2009).
- 294. Harrison M. Brown, Searching for an Answer: Defensible E-Discovery Search Techniques in the Absence of Judicial Voice, 16 Chap. L. Rev. 407, 423-424 (2013). Courts have emphasized varying approaches to crafting appropriate and effective search methodologies. See, e.g., William A. Gross Const. Assoc., Inc. v. Am. Mfr. Mut. Ins. Co., 256 F.R.D. 134, 135 (S.D.N.Y. 2009) (“This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.”); United States v. O'Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008) (“Whether search terms or 'keywords' will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on [expert] evidence….”).
- 295. Oppenheimer Fund, 437 U.S. at 358. See Dahl v. Bain Capital Partners, LLC, 655 F. Supp. 2d 146, 148 (D. Mass. 2009) (same presumption for electronic discovery).
- 296. Fed. R. Civ. P. 26(b)(2)(B).
- 297. Fed. R. Civ. P. 26(b)(2)(B), (C).
- 298. Fed. R. Civ. P. 26(b)(2)(B).
- 299. 2006 Amendments to Fed. R. Civ. P. 26(b)(2), advisory committee’s note.
- 300. Rowe Entm’t, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y. 2002) (Magistrate Judge opinion), aff’d, No. 98 Civ. 8272 (RPP), 2002 WL 975713 (S.D.N.Y. May 9, 2002).
- 301. Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) (“Zubulake I”). The Zubulake litigation generated a number of other influential ESI rulings, including: Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003) (“Zubulake III”) (allocating backup tape restoration costs); Zubulake v. UBS Warburg LLC, Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (“Zubulake IV”) (preservation of evidence, spoliation, and sanctions); and Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) (“Zubulake V”) (granting sanctions for spoliation and imposing adverse inference instruction against defendant).
- 302. Rowe, 205 F.R.D. at 428-429.
- 303. Zubulake I, 217 F.R.D. at 320 (footnotes omitted).
- 304. Id. at 322.
- 305. Id. at 321-22.
- 306. Id. at 322-23.
- 307. Id. at 323 (citing McPeek v. Ashcroft, 202 F.R.D. 31, 34 (D.D.C. 2001) (“The more likely it is that the backup tape contains information that is relevant to a claim or defense, the fairer it is that the [responding party] search at its own expense.”)).
- 308. Zubulake III, 216 F.R.D. at 289-291. The court specified: “As a general rule, where cost-shifting is appropriate, only the costs of restoration and searching should be shifted. Restoration, of course, is the act of making inaccessible material accessible . . . However, the responding party should always bear the cost of reviewing and producing electronic data once it has been converted to an accessible form.” Id. at 290.
- 309. Navigating the Hazards of E-Discovery, supra note 241, at 14 (citing Fed. R. Civ. P. 26(b)(2)(B)).
- 310. Navigating the Hazards of E-Discovery, supra note 241, at 14-15 (citing 2006 Amendments to Fed. R. Civ. P. 26(b)(2), advisory committee’s note). See discussion in this MANUAL supra at § 6.2.E.1.d.
- 311. See, e.g., First Financial Bank, NA v. Bauknecht, No. 12-CV-1509, 2013 WL 3833039, at *4-5 (C.D. Ill. July 23, 2013) (75-25% cost allocation between parties on one ESI request, where no evidence indicated material difference in respective abilities to bear production costs, and cost-shifting denied on another ESI request, where no evidence supplied to indicate undue burdensomeness of compliance); Laethem Equipment Company v. Deere & Company, 261 F.R.D. 127, 145-146 (E.D. Mich. 2009) (discovery of ESI conditioned on each requesting party’s payment of costs of production, as incentive to tailor requests for genuinely relevant information); W.E. Aubuchon Company v. Benefirst, LLC, No. 05-40159-FDS, 2007 WL 1765610 (D. Mass. Feb. 6, 2007) (good-cause analysis obligates defendant to produce inaccessible ESI stored on server at its own expense); Wiginton v. CB Richard Ellis, Incorported, 229 F.R.D. 568, 573-577 (N.D. Ill. 2004) (assessing plaintiffs 75% of costs of restoring defendant’s backup tapes and searching and transferring data, in modified Zubulake analysis).
- 312. See, e.g., Nicola Faith Sharpe, Corporate Cooperation Through Cost-Sharing, 16 Michigan Telecommunications & Technology Law Review 109 (2009); Sedona Principles, supra note 239, at 17 (corporate ESI production costs include expense of computer technicians to retrieve data, disruption of routine business practices, resources required to review documents for relevance, privilege, confidentiality, and privacy).
- 313. In fact, advocates may be exposed to an electronic “data dump” by the opposing party, which requires time-consuming sifting through significant amounts of irrelevant information. See High Point SARL v. Sprint Nextel Corporation, No. 09–2269, 2011 WL 4526770, at *12 (D. Kan. Sept. 28, 2011) (requiring production of entire database over objection that irrelevant information would be included).
- 314. As the Advisory Committee noted in 1983, balancing discovery burdens and costs against the needs of the litigation “recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved.” 1983 Amendments to Fed. R. Civ. P. 26(b), advisory committee’s note. This is a relevant consideration for legal services litigation involving, for example, a class of indigent plaintiffs seeking federally mandated access to public assistance benefits.
- 315. See discussion in this MANUAL supra at § 6.2.E.1d.
- 316. 2006 Amendments to Fed. R. Civ. P. 26(b)(2), advisory committee’s note.
- 317. John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008) (citations and interior quotation marks omitted). Accord Scalera v. Electrograph Systems, Incorporated, 262 F.R.D. 162, 171 (E.D.N.Y. 2009) (citing Fujitsu Limited v. Federal Express Corporation, 247 F.3d 423, 436 (2d. Cir. 2001)); Zubulake IV, 220 F.R.D. at 216-217. See Silvestri v. General Motors Corporation, 271 F.3d 583, 591 (4th Cir. 2001).
- 318. Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 289 (S.D.N.Y. 2009) (citations omitted).
- 319. Apple Incorporated v. Samsung Electronics Company, 881 F. Supp. 2d 1132, 1136 (N.D. Cal. 2012) (footnote omitted), motion for relief from judgment granted in part on other grounds, 888 F. Supp. 2d 976 (N.D. Cal. 2012).
- 320. Micron Technology, Incorporated v. Rambus, Incorporated, 645 F.3d 1311, 1320 (Fed. Cir. 2011).
- 321. In re Napster, Incorporated Copyright Litigation, 462 F. Supp. 2d 1060, 1067 (N.D. Cal. 2006) (citations omitted).
- 322. Sampson v. City of Cambridge, 251 F.R.D. 172, 181 (D. Md. 2008). See Goodman v. Praxair Services, Incorporated, 632 F. Supp. 2d 494, 510-511 (D. Md. 2009) (while “the mere existence of a dispute does not necessarily mean that parties should anticipate litigation or that the duty to preserve arises,” pre-litigation letter sufficiently triggered duty, since it mentioned consulting with counsel and stating damages were possible if party forced to litigate). Compare Cache La Poudre Feeds, LLC v. Land O’Lakes, Incorporated, 244 F.R.D. 614, 622-623 (D. Colo. 2007) (pre-litigation correspondence did not trigger preservation duty, since it did not threaten litigation, did not demand preservation of relevant materials, and mentioned non-litigious resolution of dispute).
- 323. Thompson v. U.S. Dept. of Housing and Urban Development, 219 F.R.D. 93, 100 (D. Md. 2003) (footnote omitted).
- 324. See Zubulake IV, 220 F.R.D. at 217 (“Merely because one or two employees contemplate the possibility that a fellow employee might sue does not generally impose a firm-wide duty to preserve. But in this case, it appears that almost everyone associated with Zubulake recognized the possibility that she might sue [and duty to preserve attached]. Compare Scalera, 262 F.R.D. at 171-172 (employer’s duty to preserve relevant emails regarding disability discrimination lawsuit did not arise when plaintiff filed workers compensation claim, but was triggered with filing of EEOC discrimination charge).
- 325. See id. at 172 (duty to preserve not triggered by bare alleged knowledge that employee was disabled and needed hand rail as accommodation, and that because she was injured by lack of handrail, she would bring disability discrimination lawsuit).
- 326. Zubulake IV, 220 F.R.D. at 217 (citations omitted).
- 327. Id. at 218.
- 328. Id.; see Arthur Andersen LLP v. United States, 544 U.S. 696, 704 (2005) (“‘Document retention policies,’ which are created in part to keep certain information from getting into the hands of others, ... are common in business,” and are lawful “under ordinary circumstances.”)
- 329. Zubulake V, 229 F.R.D. at 432.
- 330. E-Discovery Practice, Theory, and Precedent, supra note 268, at 44. See generally The Sedona Conference, The Sedona Conference Commentary on Legal Holds: The Trigger and the Process, 11 The Sedona Conference J. 265 (2010).
- 331. Zubulake IV, 220 F.R.D. at 216 (quoting West v. Goodyear Tire & Rubber Company, 167 F.3d 776, 779 (2d Cir. 1999).
- 332. Zubulake IV, 220 F.R.D. at 216.
- 333. Id. at 220.
- 334. Chin v. Port Authority of New York and New Jersey, 685 F.3d 135, 162 (2d. Cir. 2012) (quoting Residential Funding Corporation v. DeGeorge Financial Corporation, 306 F.3d 99, 107 (2d Cir.2002) (interior quotation marks omitted). This test has been referenced as “widely adopted” by trial courts. Apple, Incorporated v. Samsung Electronics Company, 888 F. Supp. 2d 976, 989-990 (N.D. Cal. 2012).
- 335. See, e.g., Zubulake V, 229 F.R.D. at 439-40 (both adverse inference instruction and costs issued as sanctions for failure to preserve relevant emails through adequate litigation hold); Mosaid Technologies Incorporated, 348 F. Supp. 2d at 338-339 (both adverse inference instruction and monetary sanctions imposed due to spoliation of relevant emails and failure to institute litigation hold following discovery requests).
- 336. Chin, 685 F.3d at 162 (quoting Byrnie v. Town of Cromwell, 243 F.3d 93, 107 (2d Cir. 2001)).
- 337. See E-Discovery Practice, Theory, and Precedent, supra note 268, at 81-82. The failure to adopt adequate preservation practices may be seen as a factor in the assessment of sanctions. Chin, 685 F.3d at 162.
- 338. Fed. R. Civ. P. 37(e). Effective December 1, 2015, amendments to the Federal Rules of Civil Procedure made significant changes to Rule 37(e). This chapter will be updated accordingly.
- 339. 2006 Amendments to Fed. R. Civ. P. 37(f), advisory committee’s note.
- 340. Thibeault v. Square D Company, 960 F.2d 239, 244 (1st Cir. 1992).
- 341. Fed. R. Evid. 702.
- 342. Fed. R. Civ. P. 26(a)(2)(A).
- 343. Fed. R. Civ. P. 26(a)(2)(B).
- 344. Fed. R. Civ. P. 26(a)(2)(D)(i).
- 345. Fed. R. Civ. P. 26(a)(2)(D)(ii). See, e.g., Dixon v. Certainteed Corporation, 168 F.R.D. 51, 54 (D. Kan. 1996).
- 346. Fed. R. Civ. P. 37(c)(1); 1993 Amendments to Fed. R. Civ. P. 26(a)(2), advisory committee's note (stating that the threat of "[r]evised Rule 37(c)(1) [is to] provide an incentive for full disclosure"); Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico, 248 F.3d 29, 34-36 (1st Cir. 2001); Nutra Sweet Co. v. X-L Eng’g Co., 227 F.3d 776, 786 (7th Cir. 2000); Olson v. Montana Rail Link, Incorporated, 227 F.R.D. 550 (D. Mont. 2005).
- 347. Fed. R. Civ. P. 26(a)(2)(B). The expert’s report must be “detailed and complete" and "[s]ince depositions of experts required to prepare a written report may be taken only after the report has been served, the length of the deposition of such experts should be reduced, and in many cases the report may eliminate the need for a deposition.” 1993 Amendments to Fed. R. Civ. P. 26(a)(2), advisory committee's note. See, e.g., Pacamor Bearings Inc. v. Minebea Co., 918 F. Supp. 491, 508 (D.N.H. 1996).
- 348. Salgado v. General Motors Corporation, 150 F.3d 735, 742 n.6 (7th Cir. 1998) (citations omitted). Accord Beane v. Utility Trailer Manufacturing Company, 934 F. Supp. 2d 871, 877 (W. D. La. 2013).
- 349. Meyers v. National Railroad Passenger Corporation (Amtrak), 619 F.3d 729, 734 (7th Cir. 2010) (citation omitted).
- 350. Porto Venezia Condominium Association, Incorporated v. WB Ft. Lauderdale, LLC, No. 11–60665–CIV, 2012 WL 7636003, at *3 (S.D. Fla. Sept. 19, 2012) (citing Metavante Corporation v. Emigrant Savings Bank, 619 F.3d 748, 762 (7th Cir.2010).
- 351. See 1993 Amendments to Fed. R. Civ. P. 26, advisory committee's note.
- 352. See Fed. R. Civ. P. 26(b)(4)(A).
- 353. Fed. R. Civ. P. 26(b)(4)(D)(ii). See Fed. R. Civ. P. 35(b).
- 354. Fed. R. Civ. P. 26(b)(4)(B).
- 355. Fed. R. Civ. P. 26(b)(4)(C).
- 356. Id.
- 357. Fed. R. Civ. P. 26(b)(3)(A), (B).
- 358. See, e.g., Sheek v. Asia Badger Inc., 235 F.3d 687, 694 (1st Cir. 2000); Reliance Ins. v. La. Land & Exploration Co., 110 F.3d 253, 257 (5th Cir. 1997).
- 359. See Fed. R. Civ. P. 41(a).
- 360. Fed. R. Civ. P. 65(a)(2) (admissible evidence received on motion becomes part of trial record).
- 361. See Fed. R. Civ. P. 56(c)(1).
- 362. Fed. R. Civ. P. 32(a).
- 363. Fed. R. Evid. 801(d)(1)(A).
- 364. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-45 (1987).
- 365. 28 U.S.C. § 1920(2). See also 28 U.S.C. § 1920(4) (awards fees for "exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case").
- 366. See, e.g., Tilton v. Capital Cities/ABC Inc., 115 F.3d 1471, 1474 (10th Cir. 1997); Bathke v. Casey’s General Stores, 64 F.3d 340, 347 (8th Cir. 1995).
- 367. In re Williams Sec. Litig -- WCG Subclass, 558 F.3d 1144, 1148 (10th Cir. 2009); Fogelman v. ARAMCO, 920 F.2d 278, 285-86 (5th Cir. 1991); Bats, Inc. v. Vector Pipeline LP, 222 F.R.D. 356, 358 (N.D. Ind. 2004).
- 368. Smith v. Tenet Healthsystem SL, Inc., 436 F.3d 879, 889 (8th Cir. 2006); Burton v. R.J. Reynolds Tobacco Co., 395 F. Supp.2d 1065, 1080 (D. Kan. 2005) (disallowing deposition-related costs for manuscripts, keyword indices, disks, exhibits, and postage and delivery, as being merely for the convenience of counsel).
- 369. Templeman v. Chris Craft Corp., 770 F.2d 245, 249 (1st Cir.), cert. denied, 474 U.S. 1021 (1985) (expense of copying deposition transcript awarded as cost under 28 U.S.C. § 1920(4), which allows "[f]ees for exemplification and copies of papers necessarily obtained for use in the case.”); Wyne v. Medo Industries, 329 F. Supp. 2d 584, 590-91 (D. Md. 2004).
- 370. Treaster v. Healthsouth Corp., 505 F. Supp. 2d 898 (D. Kan. 2007).
- 371. Id.
- 372. Fed. R. Civ. P. 26(c).
- 373. Fed. R. Civ. P. 26(c)(1).
- 374. Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981); In re Terra International, 134 F.3d 302, 306 (5th Cir. 1998); Reed v. Bennett, 193 F.R.D. 689, 691(D. Kan. 2000).
- 375. See, e.g., Gill v. Gulfstream Park Racing Ass'n, 399 F.3d 391, 400 (1st Cir. 2005).
- 376. Thomas v. Int’l Business Machs., 48 F.3d 478, 482 (10th Cir. 1995); Kramer v. NCS Pearson, Inc., No. Civ.03-1166 (JRT) (FLN), 2003 WL 21640495 , at *3 (D. Minn. June 30, 2003).
- 377. Seattle Times Co., v. Rhinehart, 467 U.S. 20, 36 (1984).
- 378. Small v. Ramsey, 280 F.R.D. 264, 269 (N.D. W. Va. 2012).
- 379. Fed. R. Civ. P. 26(c)(1).
- 380. See Fed. R. Civ. P. 26(b)(3)(A), (B) (work product); Fed. R. Civ. P. 26(c)(1)(G) (trade secrets).
- 381. Fed. R. Civ. P. 26(b)(5)(A).
- 382. 2006 Amendments to Fed. R. Civ. P. 26(b)(5), advisory committee's note.
- 383. See, e.g., Onwuka v. Fed. Express Corp., 178 F.R.D. 508, 517 (D. Minn. 1997). See also Hinton v. Conner, 225 F.R.D. 513, 517 (M.D.N.C. 2005). But see Sallis v. University of Minnesota, 408 F.3d 470, 478 (8th Cir. 2005) (Title VII discovery of discrimination complaints against defendant limited to those filed no more than one year of the actions at issue, within the department where plaintiff worked).
- 384. A particularly thoughtful examination of this issue, which wrestles with the presumption of public access to judicial documents, is Judge Posner's decision in Citizens First Nat'l Bank v. Cincinnati Ins. Co., 178 F.3d 943, 946 (7th Cir. 1999).
- 385. Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979); Jennings v. Family Mgmt., 201 F.R.D. 272, 275 (D.D.C. 2001); Prozina Shipping Co. v. Thirty-Four Autos., 179 F.R.D. 41, 48 (D. Mass. 1998). See also, Sanyo Laser Products, Inc. v. Arista Records, Inc., 214 F.R.D. 496, 503 (S.D. Ind. 2003) (“Allegations of general injury are insufficient to constitute good cause; the movant must show that disclosure will cause a clearly defined and serious injury.”).
- 386. See, e.g., Jennings, 201 F.R.D. at 275.
- 387. Protective orders seeking to bar the taking of depositions must generally be accompanied by affidavits establishing lack of knowledge. See Thomas v. Int'l Bus. Machs., 48 F.3d 478, 483 (10th Cir. 1995); Gen. Star Indemnity Co. v. Platinum Indemnity Ltd., 210 F.R.D. 80, 83 (S.D.N.Y. 2002); Digital Equip. Corp v. Sys. Indus., Inc., 108 F.R.D. 742, 744 (D. Mass. 1986).
- 388. In re Air Crash at Taipei, No. MDL 1394-GAF (RCx), 2002 WL 32155478, at *2 (C.D. Cal. Nov. 6, 2002) (citing CBS Inc. v. Ahern, 102 F.R.D. 820, 822 (S.D.N.Y. 1984)).
- 389. See Rosin v. N.Y. Stock Exch. Inc., 484 F.2d 179, 185 (7th Cir. 1973), cert. denied, 415 U.S. 977 (1974); Sec. & Exch. Comm’n v. Dowdell, No. C99-3055-MWB, 2002 U.S. Dist. Lexis 19980 (W.D. Va. Oct. 11, 2002).
- 390. See, e.g., Thomas, 48 F.3d at 482; Lewelling v. Farmers Ins. of Columbus, 879 F.2d 212, 218 (6th Cir. 1989); Salter, 593 F.2d at 651. Compare In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 205 F.R.D. 535 (S.D. Ind. 2002) (allowing deposition, under specified conditions, of CEO where evidence indicated he had personal knowledge of and involvement in events relevant to the litigation).
- 391. Fed. Trade Comm’n v. U.S. Grant Res., No. Civ.A04-596, 2004 WL 1444951 (E.D. La. June 25, 2004); Securities and Exchange Commission v. Rosenfeld, No. 97 CIV. 1467 (RPP), 1997 WL 576021 (S.D.N.Y. Sept. 16, 1997).
- 392. Shelton v. American Motors Corp., 805 F.2d 1323, 1326 (8th Cir. 1986); Ed Tobergte Assocs. Co. v. Russell Brands, LLC, 259 F.R.D. 550 (D.Kan. 2009)(collecting cases); Younger Mfg. Co. v. Kaenon, Inc., 247 F.R.D. 586 (C.D. Ca. 2007); Indus. Maritime Carriers v. Barwil Agencies, No. Civ.A03-1668, 2005 WL 2060925 (E.D. La. Aug. 23, 2005).
- 393. United States v. Morgan, 313 U.S. 409, 422 (1941); Byrd v. District of Columbia, 259 F.R.D. 1 (D.D.C. 2009); Jones v. Hirschfeld, 219 F.R.D. 71, 75 (S.D.N.Y. 2003) (“While even a sitting United States President may be compelled to comply with a subpoena under some circumstances, . . . courts have recognized that requests to depose a high-ranking government official are subject to a heightened standard of review . . . . Under that heightened standard, ‘high ranking government officials are not subject to depositions’ absent a showing by the party seeking the deposition that ‘(1) the deposition is necessary in order to obtain relevant information that cannot be obtained from any other source and (2) the deposition would not significantly interfere with the ability of the official to perform his governmental duties.’") (quoting Marisol A. v. Giuliani, No. 95CIV.10533 (RJW), 1998 WL 132810, at *2 -3 (S.D.N.Y. Mar. 23, 1998)).
- 394. Pursuant to 5 U.S.C. § 301, the “head of an executive department ... may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use and preservation of its records, papers and property. . . ." Section 301 allows a federal agency to establish procedures for responding to non-party subpoenas. These regulations are commonly known as Touhy regulations. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (Department of Justice employee could not be held in contempt for refusing to comply with a subpoena duces tecum where the employee's superior had prohibited him from producing the subpoenaed documents pursuant to an agency regulation promulgated under 5 U.S.C. § 301). If a “federal agency, pursuant to so-called Touhy regulations, prohibits its employees from responding to a subpoena . . . without agency approval and declines to grant that approval in a given case, the requesting party must then proceed under the . . . [Administrative Procedure Act], and a federal court will review the agency's decision under an 'arbitrary and capricious' standard.”) Truex v. Allstate, 233 F.R.D. 188, 190-91 (D.D.C. 2006) (citations omitted).
- 395. Burlodge Ltd. v. Standex Int'l Corp. (In re Motion to Compel Compliance), 257 F.R.D. 12, 15-16 (D.D.C. 2009).
- 396. You may have to deal more immediately with a deponent’s failure or refusal to answer a question at a deposition. A party seeking to compel an answer to a deposition question may complete the deposition before moving to compel an answer, or may adjourn the proceeding to obtain a court order. Fed. R. Civ. P. 37(a)(3)(C).
- 397. Fed. R. Civ. P. 37(a)(1).
- 398. Fed. R. Civ. P. 37(a)(3).
- 399. Fed. R. Civ. P. 37(a)(4).
- 400. Friends of Animals, Incorporated v. United States Surgical Corporation, 131 F.3d 332, 334 (2d Cir. 1997). Accord Murray v. Mitsubishi Motors of North America, Incorporated, 462 F. App’x. 88, 90 (2d Cir. 2012) (factors in evaluating district court’s exercise of discretion include willfulness of noncompliant party, reason for noncompliance, efficacy of lesser sanctions, duration of noncompliance, and whether noncompliant party had been warned of consequences for noncompliance).
- 401. JSC Foreign Economic Association Technostroyexport v. International Development & Trade Services, Incorporated, No. 03 Civ. 5562 (S.D.N.Y. Aug. 16, 2005) (quoting Cine Forty-Second Street Theatre Corporation v. Allied Artists Pictures Corporation, 602 F.2d 1062. 1066 (2d Cir. 1979) (further citation omitted)).
- 402. Id.
- 403. Everhome Mortgage Company v. Charter Oak Fire Insurance Company, N0. 07–CV–98, 2011 WL 4056043, at *2 (E.D.N.Y. April 18, 2011) (Magistrate Judge Report and Recommendation), report and recommendation adopted by Everhome Mortgage Company v. Charter Oak Fire Insurance Company, N0. 07–CV–98 (E.D.N.Y. Sept. 12, 2011).
- 404. Cielo Creations, Incorporated v. Gao Da Trading Company, No. Civ.A.04 Civ. 1952, 2004 U.S. Dist. LEXIS 11924, at *6, 2004 WL 1460372 at *2 (S.D.N.Y. June 28, 2004 ) (quoting Roadway Exp., Inc. v. Piper, 447 U.S. 752, 763-64 (1980) (further quotations omitted)).
- 405. Fed. R. Civ. P. 37(a)(5)(A).
- 406. Id. "[A] party only meets the 'substantially justified' standard when there is a 'genuine dispute' or if 'reasonable people could differ' as to the appropriateness of the motion." Alexander v. F.B.I., 186 F.R.D. 144, 147 (D.D.C. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)).
- 407. Fed. R. Civ. P. 37(a)(5)(B).
- 408. Fed. R. Civ. P. 37(a)(5)(C).
- 409. Id.
- 410. Fed. R. Civ. P. 37(b)(2)(A).
- 411. Id.
- 412. Fed. R. Civ. P. 37(b)(2)(C) .
- 413. Fed. R. Civ. P. 37(d)(1).
- 414. Fed. R. Civ. P. 37(d)(2).
- 415. Fed. R. Civ. P. 37(c)(1). Described by the advisory committee notes as “self-executing,” this “automatic sanction provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence, whether at a trial, at a hearing, or on a motion, such as one under Rule 56 [summary judgment].” 1993 Amendments to Fed. R. Civ. P. 37(c), advisory committee's note.
- 416. Fed. R. Civ. P. 37(c)(1).
- 417. Id.
- 418. Fed. R. Civ. P. 37(f).
- 419. See, e.g., Design Strategy, Inc. v. Davis, 469 F.3d 284, 296-99 (2d Cir. 2006); Marrocco v. General Motors Corp., 966 F.2d 220, 224 (7th Cir.1997) (discussing compensatory purpose of directed verdict as sanction for prejudice resulting from lost documents: "sanctions can be employed for a wide array of purposes, but they cannot replace lost evidence"). See also Hamburger v. State Farm Mutual Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004) (“The Court reviews the trial court’s exercise of its discretion to exclude experts not properly designated by considering four factors: (1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.”) (citation omitted); Musser v. Gentiva Health Servs., 356 F.3d 751, 758-60 (7th Cir. 2004) (preclusion of expert witness upheld for failure to produce expert report compliant with Rule 26(a)(2)); Salgado v. General Motors Corp., 150 F.3d 735, 742-43 (7th Cir. 1998) (same).
- 420. Shepherd v. ABC, 62 F.3d 1469, 1478 (D.C. Cir. 1995); Rubin v. Kerr, No. A300CV1680G, 2001 WL 167965, at *1 (N.D. Tex. Jan. 18, 2001).
- 421. See, e.g, Banco Del Atlantico, S.A. v. Woods Indus., 519 F.3d 350 (7th Cir. 2008); Ciaverelli v. Stryker Med., No. 002873, 2002 U.S. App. LEXIS 3349, at *2-3, 2002 WL 334124 at *1 (3d Cir. 2002); Synanon Church v. United States, 820 F.2d 421, 423 (D.C. Cir. 1987); Ford v. Fogarty Van Lines, 780 F.2d 1582, 1583 (11th Cir. 1986); Williams v. Employment Serv., 2001 U.S. Dist. LEXIS 11817 (N.D. Iowa 2001). See also Agiwai v. Mid Island Mortgage Corporation, 555 F.3d 298, 302 (2d Cir. 2009) (“[A]ll litigants, including pro ses, have an obligation to comply with court orders, and failure to comply may result in sanctions, including dismissal with prejudice . . . However, we have recognized that dismissal with prejudice is a harsh remedy to be used only in extreme situations, and then only when a court finds willfulness, bad faith, or any fault by the non-compliant litigant.” (citations, footnote, and interior quotation marks omitted)). Cf. 28 U.S.C. § 1927 ((“Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.”).
- 422. See, e.g., Century ML-Cable Corp. v. Carillo, 43 F. Supp. 2d 176, 184 (D.P.R. 1998); Telectron Inc. v. Overhead Door Corp., 116 F.R.D. 107, 135 (S.D. Fla. 1987).
- 423. Shepherd, 62 F.3d at 1469 (vacating default judgment); Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36, 40-41 (4th Cir. 1995) (vacating default judgment); Henry v. Gill Industries, 983 F.2d 943 (9th Cir. 1993) (upholding dismissal and setting out a five-part est); Wilson v. Volkswagen of America Inc., 561 F.2d 494, 503-5 (4th Cir. 1977), cert. denied, 434 U.S. 1020 (1978) (setting forth a four-part test: the court must determine (1) whether the noncomplying party acted in bad faith, (2) the amount of prejudice that noncompliance caused the adversary, (3) the need for deterrence of the particular sort of noncompliance, and (4) whether less drastic sanctions would have been effective).; Acosta v. ISD, No. EP-03-CA-0355-FM, 2005 WL 3271654, at *3 (W.D. Tex. Nov. 29, 2005) (awarding default judgment).
- 424. Beil v. Lakewood Eng’g & Mfr., 15 F.3d 546, 552 (6th Cir. 1994); Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989); Automated Datatron Inc. v. Woodcock, 659 F.2d 1168, 1169-70 (D.C. Cir. 1981); Danis v. USN Commc’ns, Inc., No. 98C7482, 2000 U.S. Dist. LEXIS 16900, 2000 WL 1694325, at *31 (N.D. Ill. Oct. 23, 2000).
- 425. District courts do, however, reach their limits:
Imagine a standup comic who delivers the punch-lines of his jokes first, a plane with landing gear that deploys just after touchdown, or a stick of dynamite with a unique fuse that ignites only after it explodes. That's what document production after trial is like—it defeats the purpose. Yet, the [defendant’s] . . . Motion would have this Court bless its decision to violate multiple Court orders, ignore the Federal Rules' carefully calibrated discovery apparatus, and produce thousands of responsive e-mails after trial ended. A discovery violation of this exotic magnitude is literally unheard of in this Court, and when—on the first day of trial—the [defendant's] . . . plan was revealed, this Court held that the [defendant] . . . had waived objections (including privileges) with regard to all of the unproduced e-mail and ordered it to produce them all within one week of the close of trial. Before the Court now is the [defendant's] . . . Motion to reconsider that Order. After exploring the relevant aspects of this case's factual background, the Court will explain its reasons for denying the [defendant's] . . . Motion.
DL v. District of Columbia, 274 F.R.D. 320, 321-322 (D.D.C. 2011).