6.2 Discovery

Updated 2010

Discovery is the process of uncovering relevant facts and identifying witnesses whose testimony can establish those facts. As required by Federal Rule of Civil Procedure 11, informal pre-filing discovery begins with a reasonable investigation of the facts before the attorney drafts the complaint. Aspects of pre-litigation investigation is covered in Chapter 4.1 of this MANUAL. This chapter discusses the tools of discovery, the methods for protecting against unwarranted discovery and motions to compel permitted discovery.

6.2.A. How the Pleadings Limit Discovery

The Federal Rules of Civil Procedure specify the general scope of discovery as follows:

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)./33/

Broadly speaking, the scope of discovery is determined by the parties to the action as they frame their theories of relief and defenses. The 2000 amendments to Rule 26 of the Federal Rules of Civil Procedure narrowed the scope of presumptively allowable discovery from that which is “relevant to the subject matter involved in the pending action” to discovery that is “relevant to the claim or defense of any party.”/34/ Discovery of information that is not germane to the claims or defenses, but is relevant to the subject matter of the action now requires a court order./35/ There is no precise dividing line between discovery relevant to claims or defenses and discovery relevant to the subject matter./36/ The “relevance” standard itself remains broad./37/ While courts have ruled that the amendments do somewhat narrow the scope of discovery, the amendments were not intended as a dramatic change to the traditionally broad standard that favors liberal disclosure./38/ The rule change has, however, led courts to carefully analyze discovery requests with reference to the asserted claims and defenses of the parties./39/ It additionally “signals to parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings.”/40/ The district court in Thompson v. Department of Housing and Urban Development expressed a utilitarian approach:

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./41/

For good cause shown, a court may allow the same scope of discovery as had been available under the prior version of the Rule – “any matter relevant to the subject matter involved in the action.”/42/ Speculative or conclusory allegations of good cause, however, will not be sufficient, absent supporting facts./43/ As was the case prior to the 2000 amendments, a significant overall factor to bear in mind is that the information sought in discovery “need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”/44/

Rule 26(b)(2) further specifies three considerations which, if present, require the court to limit the scope of otherwise permissible discovery. The Rule states, in relevant part:

[T]he 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.

The first two sub-parts of Rule 26(b)(2) present guidelines for a court’s assessment of claims that compliance with a discovery request would be unreasonably burdensome. The third sub-part sets out a principle of “proportionality” that directs the court to conduct a balancing test to determine whether limits should apply to the scope of requested disclosure in cases where the costs of discovery would outweigh its likely benefits to the litigation./45/

6.2.B. Mandatory Initial Disclosures

In most cases, Rule 26(a)(1) 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 witnesses and documents (including electronically stored information) “that the disclosing party may use to support its claims or defenses,” a computation of damages, and information regarding insurance agreements./46/ The names of witnesses must include the subjects of their information. The documents themselves or their description and location must be provided. “Use” is broadly construed to include use in discovery, to support a motion, or at trial, but it excludes information used solely for impeachment./47/

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 of an administrative record.”/48/

6.2.C. Written Discovery

Interrogatories, as well as requests for production, are often the first discovery tool to be used.

6.2.C.1. Interrogatories

Except with leave of court or by stipulation, interrogatories may be served only after the Rule 26(f) conference discussed above./59/ They can be directed only to other parties, who then have thirty days to respond./60/ Interrogatories propounded on one party must be served on each party./61/ Filing discovery requests and responses with the court is prohibited by Federal Rule of Civil Procedure 5(d)(1), except in connection with trial or certain motions, such as motions to compel, for protective orders, or for summary judgment.

Interrogatories are generally used for two purposes. First, they seek factual information to establish a basis for subsequent discovery by production or 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, other objective facts, and the identity and opinions of experts. Interrogatories may accompany requests for admissions and ask the basis for and facts supporting any denials. Rule 33(a) limits the number of interrogatories that may be served upon any other party to twenty-five, “including all discrete subparts,”/62/ but the court may alter this limitation consistent with Rule 26(b)(2)(C)./63/ Plan interrogatories with care; do not waste the limited opportunity to use interrogatories on questions of marginal value. If your client receives more than 25 interrogatories, the best approach is to answer the first 25 and to object to the remainder./64/

Effective interrogatories are short, to the point, and unambiguous. Interrogatories should be preceded by clear instructions and precise definitions of potentially ambiguous words. 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.

Rule 33(d) allows a responding party the option to provide business records as an answer to an interrogatory if an examination, audit, or inspection of the 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 specifying, in detail, the responsive records and giving the party serving the interrogatory a reasonable opportunity to examine, audit, or inspect the documents, and to make copies, compilations, abstracts, or summaries./74/

Responses to interrogatories must be signed by the party making the response, and by the attorney making the objection./75/ As with initial disclosures, a party and his attorney have a duty to timely supplement or correct answers to interrogatories “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.”/76/

6.2.C.2. Requests for Production of Documents

Federal Rule of Civil Procedure 34(a) permits a party to request documents or electronically stored information or to inspect, copy, test or sample “tangible things” that are in the respondent’s “possession, custody or control.”  The responding party may either produce the documents or permit them to be inspected and copied. Like interrogatories, Rule 34 requests for production can be directed only to parties./77/ Rule 34 governs such requests whether filed separately or in conjunction with a deposition./78/ Unlike interrogatories and depositions, the federal rules do not impose any numerical limits on the number of requests for production. However, consult your Court's Local Rules for any limitations imposed. 

Generally, requests for production cannot be propounded until the Rule 26(f) conference and will follow receipt of initial disclosures./79/ If permitted by the Rule 16(b) scheduling order, a party may seek production of material outside the scope of the initial disclosures before those disclosures are received. Counsel should determine whether there is a need for expedited discovery and either move for such discovery or ensure that it is permitted by the discovery plan. 

Rule 34 defines “documents” expansively, to include ‘writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations./80/ Effective 2006, it also includes electronically stored information, which is discussed below. The responding party is to produce material within their 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./81/ The “agency” aspect to Rule 34 can require a party to produce a document turned over to counsel./82/ The party seeking production of documents bears the burden of establishing the opposing party’s control over those documents./83/

Rule 34(b) requires that requested documents be described by “item or by category” with “reasonable particularity.” Do not simply request “all relevant documents” or documents that "reflect noncompliance with the ADA." Such requests fail to put the responding party on notice of what is requested so that they are able to identify responsive documents./84/ 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 handwritten notes or changes, as well as all subsequent versions of the documents that are not identical to the initial one.

Rule 34(b) requires the opposing party to object or file a written response within 30 days of service that states "that inspection and related activities will be permitted as requested.” Many lawyers fail to file the required response; they assume that actual production is all that is required. Insist on a written response describing what is being produced and what is not produced; this should protect you against the later appearance of a document not previously produced. If your request was drafted with care, you may be able to exclude from evidence surprise documents clearly encompassed within its terms. The response may also indicate that requested documents do not exist—a fact that may be quite significant in establishing an element of your case such as arbitrary action or negligence./85/ 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./86/ 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.”/87/ 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./88/ If the objection includes that the requests are burdensome or unduly intrusive, the court is likely to balance the need for the information by the party seeking discovery with the harm to the party opposing it./89/ If only the expense of copying documents is involved, you may offer to do the copying. If the expense is related to reviewing the respondent’s files, you may again offer to undertake the review.

Conversely, you may receive objectionable discovery requests. Ordinarily your response to improper requests for production, requests for admission, and interrogatories should be to object, specifying your grounds with precision. It is rarely necessary to move for a protective order.

Occasionally, as a form of obstruction or harassment, parties respond to a request for production by turning over a large volume of unreviewed, unsorted materials and documents. Because Rule 34(b) requires the producing party to sort or label documents to correspond with the categories in the request, or to otherwise produce them as they are maintained in the usual course of business, the production of a mass of unsorted material violates the rule./90/ If this happens, you should move to compel discovery under Rule 37(d). Although most trial courts prefer not to supervise the discovery process actively, production that clearly violates the obligation to particularize a response should lead to relief. Confronted with a respondent who has foisted a huge mound of unsorted materials upon the requesting party, a court should order the respondent to particularize the response and may ultimately impose sanctions on a party who fails to do so./91/

The ultimate goal of production is to generate admissible evidence. Although parties customarily stipulate to the authenticity of documents that they produce, authenticity or source is sometimes in doubt. In such a case, the requesting party may later submit requests for admission to establish authenticity, simplifying the admission of those documents into evidence./92/ Documents can also be authenticated at a deposition.

As with initial disclosures and interrogatories, a party and his attorney 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.”/93/

6.2.C.3. Requests for Admission

Requests for admissions issued pursuant to Federal Rule of Civil Procedure 36 are a useful but often underused 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. As with interrogatories and requests for production, they may only be directed to parties./94/ 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./95/

Rather than being discovery devices designed to uncover facts, they are instead a means to define and limit the matters in controversy between the parties./96/ Requests for admission are intended to relieve the parties of the time and cost of proving facts that will not be disputed at trial. To be useful, requests for admission must be precise and phrased in such a way as to be admitted or denied./97/ They may cover facts or mixed questions of fact and law, but not pure questions of law./98/ Authority is split as to whether requests for admission seeking interpretations of documents are improper./99/

Although documents produced in response to a request for production can sometimes be authenticated through use of the party’s written reply, the better practice is for the discovering party to request that authenticity be admitted. /100/ A request for admission may relate to origin, authenticity, accuracy, or contents of the document./101/ 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.” Such permission is occasionally granted./102/ A request for admission that is not answered within thirty days after service of the request is deemed admitted./103/ Once a fact is admitted, the offering party need not prove it. The court and parties are bound by it even if more persuasive evidence relating to the fact is later offered./104/

Rule 36(a)(4) further provides that “an answering party may assert lack of knowledge or information as a reason for failure 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 the party to admit or deny.”/105/ 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 true./106/ Stating its reasons, the responding party may also object to the requested admission./107/

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./108/ Subject to specified conditions, a requesting party having to prove the truth of a matter or the genuineness of a document requested under Rule 36 may seek reasonable costs, including attorney's fees, if the responding party failed to make the appropriate admissions./109/ 

6.2.C.4. Depositions

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 in which the witness's knowledge, perceptions, understandings and opinions are probed 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.

6.2.C.4.a. Taking Depositions

6.2.C.4.a.1. Procedure

Depositions of parties are arranged using a notice of deposition, which designates the location and time for the deposition, along with other specified information required by Rule 30(b)./118/  To avoid scheduling conflicts, consult opposing counsel to determine an agreeable time.The notice must be served on all parties.  When deposing a party, a subpoena is not required; service of the notice on opposing counsel is sufficient. 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./119/

Most depositions open with two sets of preliminary rituals. The first concerns stipulations, some of which may vary with local practice. Some attorneys propose stipulations that are already mandated by federal rule unless otherwise stated, such as waiver of irregularities in the notice and defects in the qualification of the officer before whom the deposition is taken./133/ If the opposing party is requesting the “usual stipulations,” be sure to ask, at the outset, precisely what is encompassed by them.  Stipulations may also waive the witness’s right to read and sign the transcript before it is submitted to the court. Federal Rule of Civil Procedure 30(e) requires review of the transcript by the witness only if requested by a party before completion of the deposition. 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./134/

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./135/

Experience teaches that depositions are best conducted in an accommodating, friendly 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 ambiguous answers; follow up and insist on an answer. Remember that a reporter cannot transcribe accurately when several people speak simultaneously. Do not allow attorneys to answer questions in the guise of an objection, thus testifying in place of the deponent. The informal setting of a deposition often leads to going “off the record” more often than in a courtroom, with the result that valuable information may not be recorded. To assure the production of a useful transcript, be cautious about going 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: start by having the witness identify herself, her position, background, and involvement and detail 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 disposative 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 competency, relevancy, or materiality of testimony can but need not be made during a deposition; they can be raised later at trial. The only objections waived if not made during the deposition are those relating to the form of questions, privilege, and errors that could have been corrected during the deposition itself./136/ Because objections 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 precludes the use of the answer at trial. If faced with an objection on the grounds of 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, or offer insight on how to obtain the information sought without objection.

There are behavior norms for attorneys 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.”/137/ Some attorneys engage in obstructive behavior, particularly with young opposing counsel. You may have to cope with opposing counsel’s harassment in order to prevent interference with your ability to elicit appropriate testimony from the witness. A common harassment technique is to make “speaking” objections in a manner that offers the witness a hint as to how to respond. This tactic is not permissible. Rule 30(c)(2) states: “An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).”/138/ An attorney is prohibited from attacking every question posed by opposing counsel so as to prevent elicitation of any meaningful testimony from the witness./139/ Cases of particularly egregious attorney misconduct can lead to severe sanctions./140/ It is not improper for an attorney to raise reasonable, non-waivable objections.

Another frequently encountered tactic is for defending counsel to request frequent breaks with the witness. This pattern of conduct should be strenuously resisted. As one court has held, "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."/141/ While agreeing that private attorney–witness consultations between questions and answers are impermissible except for the purpose of determining privilege issues, other courts have rejected a bright line rule barring all witness-lawyer conferences during the deposition./142/

Personal remarks and ad hominem attacks on opposing counsel are inappropriate and may be sanctioned./143/ The lawyer for the witness is not an intermediary for interpreting questions./144/ If necessary, you may seek a judicial ruling on a motion to compel pursuant to Rule 37(a), as appropriate, but doing so may interrupt or delay the deposition./145/ The federal magistrate or judge assigned to the case (or in the district in which the deposition is held) often makes 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./146/ If possible, learn the local practice from other counsel or the judge’s clerk before deciding whether to interrupt a deposition./147/

6.2.C.4.b. Defending Depositions and Preparing Witnesses

The four key steps to follow in order to prepare a witness for deposition are: (1) Review your entire file, 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) If the witness is shaky or would feel more comfortable, have another attorney conduct a mock cross-examination of the witness. Try to keep this practice session as formal as possible, and use a tape recorder to simulate the presence of a court reporter. (4) Advise the witness how to dress for and conduct herself during the deposition. A sample set of instructions is set forth below./148/

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 explained, 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 errata sheet. Third, adverse deposition testimony alters the settlement dynamic, which can be rebalanced if the witness is successfully rehabilitated.

An errata sheet presents an opportunity for a witness to amend his testimony after the deposition. The witness may create an errata sheet when the transcript is submitted to him 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. 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,/152/ although courts have interpreted Rule 30(e) differently./153/ To be effective, however, the changes must be supported by reasons and must be made within thirty days of submission of the transcript to him./154/ The changes are appended to the deposition, although the original testimony stands as well. Again, however, this approach will be less convincing to the trier of fact than testimony amended at the time of the deposition.

6.2.C.4.c. Depositions of Organizations

Depositions of individuals who can speak on behalf of organizations or government entities are addressed in Federal Rule of Civil Procedure 30(b)(6). Rule 30(b)(6) 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 inquiry./155/ This triggers the obligation of the named organization to “designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf” to appear at the deposition on behalf of the organization./156/ The designation may, but is not required to, set forth the matters on which the designee will testify. Admissions of these individuals are regarded as admissions of the entity on whose behalf they are testifying./157/ 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./158/ If the entity cannot produce any individual to testify regarding the matters named, it should move for a protective order.

6.2.D.  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 the document custodian thereof, who furnishes documents or electronically stored information./164/ 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.

Subpoenas are issued by the Clerk of the Court (typically on the court's website), but are signed by the attorney./165/ 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. 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./166/ The subpoena is issued from the court for the district in which the deposition or production is to take place./167/ 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./168/ 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./169/

Subpoenas are served by non-party adults, but are served by the U.S. Marshal's Service in cases brought in forma pauperis./170/ 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./171/ 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./172/ 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./173/ You must pay these expenses even when the plaintiff is proceeding in forma pauperis./174/ 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./175/ For an example of the latter, see 28 U.S.C. § 1785.The process server should file a proof of service./176/

Federal Rules of Civil Procedure Rule 45(c) directs the party or attorney issuing a subpoena to “take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena." There is no particular test implementing the "undue burden" proscription in the Rule, but common sense generally prevails here. The courts typically balance the benefits of the material sought against the burden imposed, taking into account possibilities that the requesting party may have to obtain the information more inexpensively elsewhere. A third party subpoenaed to produce documents or tangible things objects to the subpoena by filing written objections./177/ Those objections must be filed within fourteen days or prior to the date specified for compliance, whichever is earlier./178/ Rule 45(d)(2) explains how the third party makes a claim that information requested is privileged or subject to protection as trial preparation material. If the requesting party disagrees with the objection, the issue is typically resolved upon a motion to compel enforcement of the subpoena. Federal Rules of Civil Procedure Rule 45(d)(1) sets forth the means by which the third party is to comply with a subpoena for documents or electronically stored information. 

A third party subpoenaed for deposition objects by filing a motion for protective order or a motion to quash the subpoena./179/ Such a motion is to be filed "timely," which is generally defined as prior to the date of the deposition./180/ 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./181/ 

6.2.E. Electronic Discovery

6.2.F. Expert Discovery

As noted, information considered by the expert in forming her opinion should be included in the expert's report.  This provision raises the question of whether and to what extent documents provided by counsel to their expert, ordinarily regarded as work product, are discoverable.  The majority rule is that all documents considered by experts, including documents given by counsel with opinion work product, are discoverable./208/ Draft reports may be discoverable even if they contain comments of non-testifying, consulting experts/209/ or counsel’s comments./210/ Counsel’s own notes of her communications with an expert are generally viewed as non-discoverable work product./211/ Extreme caution should therefore be exercised before sending the expert anything in writing, whether by e-mail or otherwise. As with other discovery, timely supplementation of expert disclosures is required pursuant to Rule 26(e)(1). Supplementation of an expert report on the eve of trial is not permitted unless justified by good cause./212/

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. In that event, file an appropriate document pursuant to Federal Rule of Civil Procedure 41(a).

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./213/

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 depositions. 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.

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./214/ When offered to impeach the testimony of a witness, deposition testimony is admissible as substantive evidence rather than simply as evidence of the witness’s lack of credibility./215/ 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

6.2.I. Protective Orders

Protective orders may be sought in different contexts and with varying goals. In general, protective orders may be granted, upon motion by the party resisting discovery and “for good cause shown,” to avoid "annoyance, embarrassment, oppression, or undue burden or expense./224/ Before seeking such an order, the movant is required by Rule 26(c)(1) to confer with the opposing party in an effort to resolve the dispute without court action./225/ 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./226/ In deciding whether good cause exists, the court typically balances the potential benefit of disclosure against its harms./227/ 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,/228/ including what degree of protection is necessary in the fashioning of the order./229/

6.2.J. Motions to Compel

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./246/ If a satisfactory reply is not forthcoming within your specified time limit, move under Rule 37(a)(3) to compel disclosures or discovery and, when appropriate, for sanctions. Rule 37(a)(1) requires any motion seeking to compel discovery (or to compel Rule 26(a) disclosures) to include “a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the disclosure or discovery in an effort to obtain it without court action.” Never threaten unless you intend to act; you must follow through when dealing with obstruction or you will encourage more of it.

When you move to compel or for sanctions, 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 important. 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, and its decision will be reversed on appeal only for an abuse of that discretion./247/ 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 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. The most severe sanctions are orders of dismissal and default judgment./248/ 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.’”/249/

A party may move to compel disclosure, and may seek appropriate sanctions for a failure to make a disclosure required by Rule 26(a); for a deponent’s failure to answer a question; for failure to answer an interrogatory; for failure to respond to a request for production; failure to answer completely or for answering evasively./250/ If the court grants the motion, or if the requested discovery is provided after the motion is filed, the court “shall” “require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them” to pay the reasonable expenses involved in bringing the motion, including attorney’s fees./251/ The court may disallow costs and fees if it determines that the motion was brought without a good faith attempt to informally secure the discovery, if the non-disclosing party’s actions were “substantially justified,” or if “other circumstances make an award of expenses unjust.”/252/ Similar standards dictate the potential award of expenses against the moving party, if the motion to compel is denied./253/ Apportionment of expenses among the parties is to be made if the motion is denied in part and granted in part./254/ If the motion is denied in whole or in part, the court may further enter a corresponding Rule 26(c) protective order./255/

Failure to comply with discovery orders issued by the court carries potentially more severe consequences. Rule 37(b)(2)(A), provides, in part, that "[i]f 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." In addition to the potential award of expenses and fees against the party, attorney, or both, these sanctions include: (1) an order that designated facts are to be taken as established as the prevailing party claims; (2) an order refusing to allow the noncompliant party to support or oppose designated claims or defenses, or prohibiting the party from introducing specified matters into evidence; and (3) an order 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 part, or (7) treating the failure to obey as contempt, except for orders to submit to a physical or mental exam./256/

The court may also award these severe sanctions (except contempt) and fees and expenses in cases of total noncompliance” with discovery requests./257/ These cases include a failure to appear at a deposition; a failure to serve answers or objections to interrogatories; or failure to serve a response to a request for production./258/ The failure to respond 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./259/

Serious obstruction of discovery may result in an order precluding the admission of certain evidence./265/ 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.”/266/

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./267/ When the guilty party engages in wholesale destruction of primary evidence regarding a number of issues and the district court cannot fashion an effective issue-related sanction, default or dismissal may be granted./268/ Courts of appeal also demand an explanation of why lesser sanctions were likely to be ineffective./269/ However, this does not mean that courts must first impose the lesser sanction./270/

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 incredible.

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. 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.

____________________________________________________________________________________

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33. Fed. R. Civ. P. 26(b)(1) (emphasis added).

34. 2000 Amendments to Fed. R. Civ. P. 26(b)(1), advisory committee notes.

35. Fed. R. Civ. P. 26(b)(1); see In re Subpoena to Witzel, 531 F.3d 113, 118 (1st Cir. 2008).

36. 2000 Amendments to Fed. R. Civ. P. 26(a), advisory committee notes.

37. Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 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 v. Sanders, 437 U.S. 340, 351 (1978)).

38. See, e.g., Collens v. City of New York, 222 F.R.D. 249, 252 (S.D.N.Y. 2004) (information to impeach likely witness may be discoverable under narrower standard); Cornell Research Found., Inc. v. Hewlett Packard Co., 223 F.R.D. 55, 73 (N.D.N.Y. 2003); Sanyo Laser Prods., Inc. v. Arista Records, Inc., 214 F.R.D. 496, 500 (S.D. Ind. 2003) (“[T]he scope of discovery has narrowed somewhat under the revised rule. The change, while meaningful, is not dramatic, and broad discovery remains the norm. The revised rule simply provides one additional justification for the Court to put the brakes on discovery that strays from the claims or defenses being asserted.”) Accord, Fountain v. City of New York, No. 03CIV4526 (RWS), 2004 U.S. Dist. LEXIS 7539, at *7, 2004 WL 941242, at *2 (S.D.N.Y. May 3, 2004).

39. See, e.g., Bowen v. Parking Auth., 214 F.R.D. 188, 195 (D.N.J. 2003) (while disallowing defendants request for mental examination of plaintiff in an employment termination and retaliation action because he had not placed his mental status “in controversy,” defendants would be allowed to request production of plaintiff’s psychological records and depose his therapists, since he claimed that emotional distress had emanated from his employment). See also, Sallis v. Univ. of Minn., 408 F.3d 470, 477 (8th Cir. 2005) (“the new rules limit the breadth of discovery that can occur absent court approval”) (quoting Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 967-68) (9th Cir. 2004)).

40. 2000 Amendments to Fed. R. Civ. P. 26(a), advisory committee notes. See Diaz-Padilla v. Bristol Myers Squibb Holding LLC, No. 04-1003 (PG/GAG), 2005 WL 783076, at *1 (D. P.R. Apr. 4, 2005) (noting this purpose of disallowing discovery to develop new claims or defenses as the most significant behind the 2000 amendments). See also Collens, 222 F.R.D. at 253 (“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)).

41. Thompson v. Dept. of Hous. & Urban Dev., 199 F.R.D. 168, 172 (D. Md. 2001). For a discussion of relevance in connection with particular types of cases, see 6 James Wm.  Moore et al., Moore's Federal Practice para. 26.46 (2010).

42. Fed. R. Civ. P. 26(b)(1).

43. Surles v. Air France, No. 00CIV5004 (RMBFM), 2001 U.S. Dist. LEXIS 15315, at *6, 2001 1142231, at *2 (S.D.N.Y. Sept. 27, 2001).

44. Fed. R. Civ. P. 26(b)(1) (emphasis added). See Seales v. Macomb County, 226 F.R.D. 572, 575 (E.D. Mich. 2005) (“Under Fed. R. Civ. P. 26(b)(1)(b) , the scope of discovery is quite broad. . . . ‘The scope of examination permitted under Rule 26(b) is broader than that permitted at trial. The test is whether the line of interrogation is reasonably calculated to lead to the discovery of admissible evidence.’”) (quoting Lewis v. ACB Business Services, Inc., 135 F.3d 389, 402 (6th Cir. 1998)); Cory v. Aztec Steel Bldg., Inc., 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.") (quoting Sonnino v. Univ. of Kan. Hosp. Auth., No. CIV.A.0222576-KHV-DJ, 2004 WL 769325, at *2 (D. Kan. Apr. 8, 2004)).

45. See, e.g., Peskoff v. Faber, 244 F.R.D. 54, 59-61 (D.D.C. 2007) (applying factors in electronic discovery case); Starbucks Corp. v. Lundberg, No. CV02-948-HA, 2004 U.S. Dist. LEXIS 16141, at *14, 2004 WL 1784753, at *5 (D. Or. Aug. 10, 2004) (applying Rule 26(b)(2) factors to deny plaintiffs’ request for production of “all documents” relevant to defendant’s responses to plaintiffs’ interrogatories and requests for admission).

46. Fed. R. Civ. P. 26(a)(1).

47. 2000 Amendments to Fed. R. Civ. P. 26(a), advisory committee notes.  The 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 Corp., 427 F.3d 1095, 1105 (8th Cir. 2005); (Lomascolo v. Otto Oldsmobile-Cadillac, Inc., 253 F. Supp. 2d 354, 359-60 (N.D.N.Y. 2003).  

48. 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). In addition, 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 notes.

50. Fed. R. Civ. P. 26(a)(1)(E).

51.  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 refilling, as sanction for protracted delay in making Rule 26(a)(1) disclosures, coupled with failure to meet other discovery obligations).

52. Sender v. Mann, 225 F.R.D. 645, 650 (D. Colo. 2004).

53. Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003) (declines to make bad faith a separate factor, but notes that it is relevant to the fifth). 

54. 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).

55. Id. 26(e)(1).

56. Id. 26(a)(1). 

57. Id. 26(e).

58. 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 the 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”).

59.  Fed. R. Civ. P. 26(d)(1).

60. Id. 33(b)(2).

61.   Fed. R. Civ. P. 5(a)(1)(C).

62. Fed. R. Civ. P. 33(a)(1). Check your Local Rules to determine whether they define a "subpart." 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 notes. Courts have, perhaps predictably, 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). “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.” Sec. Ins. Co. of Hartford v. Trustmark Ins. Co., No. Civ.3:01CV2198 (PCD), 2003 WL 22326563, at *1, 2003 U.S. Dist. LEXIS 18196, *2-3 (D. Conn. Mar. 7, 2003). 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 an event and a demand for documents pertaining to it should be counted as two separate interrogatories; demands relating to a single topic in a single field of inquiry can be contained in one interrogatory).

63. Fed. R. Civ. P. 33(a); 26(b)(2)(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.” Am. Chiropractic Assoc. v. Trigon Healthcare, Inc., No. 1:00CV00113, 2002 WL 534459, at *4, 2002 U.S. Dist. LEXIS 6199, *10 (W.D. Va. Mar. 18, 2002) (citation omitted). Advocates requesting permission to serve additional interrogatories must offer specific justification. Barker v. Am-Rail Construction, Inc., No. 02-2835-BV, 2004 WL 784507, at *3, 2004 U.S. Dist. LEXIS 6328, *8-11 (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).

64. Capacchione v. Charlotte-Mecklenburg Sch., 182 F.R.D. 486, 492 n.4 (W.D.N.C. 1998).

65. See Fed. R. Civ. P. 33(a)(2).  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, Inc., 144 F.3d 418, 421 n.2 (6th Cir. 1998).

66. Id.

67. 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, Inc. 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). “In responding to an interrogatory, a party must include all information within his knowledge or control.” Hanley v. Como Inn, Inc., No. 99C1486, 2003 WL 1989607, at *4, 2003 U.S. Dist. LEXIS 7130, *12 (N.D. Ill. Apr. 28, 2003) (citation omitted); see also Am. Int'l Specialty Lines Ins. Co. v. NWH, Inc., 240 F.R.D. 401, 413 (N.D. Ill. 2007).

68. See Meyer v. S. Pac. Lines, 199 F.R.D. 610, 615 n.12 (N.D. Ill. 2001) (interrogatory not objectionable because requested information is available to both parties as a matter of public record).

69. 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-LTB-KLM, 2009 U.S. Dist. LEXIS 113059, at *12 (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).

70. See Beach v. City of Olathe, 203 F.R.D. 489, 493 (D. Kan. 2001); Pulsecard, Inc. v. Discover Card Servs., Inc., 168 F.R.D. 295, 304 (D. Kan. 1996). 

73. Id. 33(b)(4). Interland, Inc., 2005 WL 2414990, at *5, 2005 U.S. Dist. LEXIS 36112, at *18 (“global” objections prefacing the interrogatory responses were to be discounted as not meeting the Rule’s specificity standard).

74. Fed. R. Civ. P. 33(d). See In re Sulfuric Acid Antitrust Litig., 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).

75. Id. 33(b)(5).

76. Id. 26(e)(1).

77. Id. 34(a). Requests can also be made under the rule to “permit entry on to designated land or other property” to "inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it." Id. 34(a)(2). 

78. Id. 30(b)(2) ; 34(c).

79. Id. 26(d).

80. Id. 34(a)(1)(A).

81. 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 Inc., 193 F.R.D. 633, 636 (D. Minn. 2000).

82. 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).

83. 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 Am., Inc. v. UCB Films, Inc., 219 F.R.D. 649, 653 (D. Kan. 2004); Klesch & Co. v. Liberty Media Corp., 217 F.R.D. 517, 520 (D. Colo. 2003).

84. 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).

85. For example, a request for production of all documents that constitute the administrative record would reveal that agency action was arbitrary if the record did not contain documents that should have formed the basis of the agency decision.

86. See, e.g., Badalamenti v. Dunham’s Inc., 896 F.2d 1359, 1362 (Fed. Cir.), cert. denied, 498 U.S. 851 (1990).

87. Hall v. Sullivan, 231 F.R.D. 468, 474 (D. Md. 2005).

88. Burlington N. & Santa Fe Ry. v. U.S. Dist. Court, 408 F.3d 1142 (9th Cir.), cert. denied, 546 U.S. 939 (2005).

89. See Fed. R. Civ. P. 26(b)(2).

90. Rothman v. Emory Univ., 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).

91. 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.

92. The admission overcomes objections relating to authenticity, best evidence, and hearsay.

93. Fed. R. Civ. P. 26(e)(2).

94. Id. 36(a)(1).

97. The court’s admonitions in Henry v. Champlain Enters., Inc., 212 F.R.D. 73, 77 (N.D.N.Y. 2003), 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.” Id. (citations omitted).

98. 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); United States v. Block 44, 177 F.R.D. 695, 695 (D. Fla. 1997); Lakehead Pipe Co. v. American Home Assurance, 177 F.R.D. 454, 458 (D. Minn. 1997).

99. Compare, e.g., Bausch & Lomb Inc. v. Alcon Lab. Inc., 173 F.R.D. 367, 377 (W.D.N.Y. 1995), with Booth Oil Site Administrative Group v. Safety-Kleen Corp., 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. The determination of the degree of complexity of a document, in order to further determine the adequacy of any response or the permissibility of an objection, can only occur on a case by case basis.”).

100. See Fed. R. Civ. P. 36(a)(1)(B).

101. Fed. R. Civ. P. 36(a)(2). A request to admit that a document is genuine must include a copy of the document unless it was previously furnished.

102. See, e.g., Rolscreen Co. v. Pella Prods. Inc., 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).

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.

104. Armour v. Knowles, 512 F.3d 147, 154 n.9 (5th Cir. 2007); Tillamook Country Smoker v. Tillamook County Creamery Ass'n, 465 F.3d 1102, 1112 (9th Cir. 2006).

105. Id. 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, Inc., 212 F.R.D. 73, 78 (N.D.N.Y. 2003)). See also United States v. Taylor, 166 F.R.D. 356, 363 (M.D.N.C. 1996).

106. 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).

107. Fed. R. Civ. P. 36(a)(5). 

108. 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 notes (emphasis added). The proper sanction for a party failing to appropriately obtain information before answering is an award of costs after trial, pursuant to the requirements of Rule 37(c)(2). See id. See also 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).”

109. 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.

129. See 8A Wright & Miller, supra note 127, at § 2108.

133. Fed. R. Civ. P. 32(d).

134. See, e.g., Rios v. Bigler, 67 F.3d 1543, 1552 (10th Cir. 1995); Blackthorne v. Posner, 883 F. Supp. 1443, 1451 (D. Or. 1995).

135. 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?

136. Fed. R. Civ. P. 32(d)(3)(B).

137. 1993 Amendments to Fed. R. Civ. P. 30(d), advisory committee notes.

138. This amendment to the Rule “was intended to curtail lengthy objections and colloquy which often suggested how deponents should answer.” 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 Corp. v. MicroMetrics Instrument Corp., 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.”).

139. 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.”) Id. (citation omitted).

140. E.g., 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 the expert’s deposition, counsel “was unprofessional, obstreperous, and obstructive; his witness followed his lead and similarly impeded the discovery process.”).

141. Hall v. Clifton Precision, 150 F.R.D. 525, 529 (E.D. Pa. 1993).

142. See, e.g., United States v. Philip Morris, 212 F.R.D. 418, 420 (D.D.C. 2002); 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” and that "[s]o long as attorneys do not demand a break in the questions, or demand a conference between question and answers, the Court is confident that the search for truth will adequately prevail.").

143. Van Pilsum v. Iowa State Univ. of Science & Techn., 152 F.R.D. 179, 180 (S.D. Iowa 1993).

144. Johnson v. Wayne Manor Apartments, 152 F.R.D. 56, 59 (E.D. Pa. 1993).

145. See, e.g., Quantachrome Corp. v. MicroMetrics Instrument Corp., 189 F.R.D. 697, 700 (S.D. Fla. 1999).

146. Fed. R. Civ. P. 30(d)(4).

147. Some courts may also have local rules specifying appropriate conduct at depositions. See Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Trust No. 1B, 230 F.R.D. 398, 421 (D. Md. 2005) (referencing local district “discovery guidelines”); McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648, 650 (D. Colo. 2001) (same).

155. Fed. R. Civ. P. 30(b)(6).

156. Fed. R. Civ. P. 30(b)(6).

157. McKesson Corp. 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, Inc. v. Burke, 2005 U.S. Dist. LEXIS 38839, at *61-62 (D.D.C. Nov. 1, 2005).

158. Alexander v. FBI, 186 F.R.D. 148, 151 (D.D.C. 1999).

161. 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).

162. 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”).

163.  State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 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”).

164. Fed. R. Civ. P. 45(a)(1)(C), 45(c)(2)(A).

199. Thibeault v. Square D Co., 960 F.2d 239, 244 (1st Cir. 1992).

200. Fed. R. Civ. P. 26(a)(2)(C).

201. Id. 26(a)(2)(C). See, e.g., Dixon v. Certainteed Corp., 168 F.R.D. 51, 54 (D. Kan. 1996).

202. Fed. R. Civ. P. 37(c)(1); 1993 Amendments to Fed. R. Civ. P. 26(a)(2), advisory committee notes (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, Inc., 227 F.R.D. 550 (D. Mont. 2005).

203. 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 notes. See, e.g., Pacamor Bearings Inc. v. Minebea Co., 918 F. Supp. 491, 508 (D.N.H. 1996).

204. Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 n.6 (7th Cir. 1998) (citations omitted).

205. See 1993 Amendments to Fed. R. Civ. P. 26, advisory committee notes.

206. See Fed. R. Civ. P. 26(b)(4)(A).

209. Trigon Ins. v. United States, 204 F.R.D. 277, 282 (E.D. Va. 2001).

210. Elm Grove Coal Co. v. Director, O.W.C.P., 480 F.3d 278, 303 (4th Cir. 2007); Weil v. Long Island Sav. Bank, 206 F.R.D. 38, 39 (E.D.N.Y. 2001); Ross v. Burlington Northern Railroad Co., 136 F.R.D. 638, 638 (N.D. Ill. 1991); In re Shell Oil Refinery, 132 F.R.D. 437, 440 (E.D. La. 1990).

211. See, e.g., B.C.F. Oil Refinery v. Consol. Edison Co., 171 F.R.D. 57, 66-67 (S.D.N.Y. 1997).

212. 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).

213. Fed. R. Civ. P. 65(a)(2).

214. Id. 32(a).

225. Id.

226. 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).

235. 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.”); 8A Wright & MIller, supra note 127, at § 2037.

236. See, e.g., Jennings, 201 F.R.D. at 275.

237. 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).

238. 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)).

239. See 8A Wright & Miller, supra note 127, at § 2037; 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).

240. 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).

241. 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).

242. 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).

243. 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) (Clearinghouse No. 50,954)).

247. Friends of Animals, Inc. v. United States Surgical Corp., 131 F.3d 332, 334 (2d Cir. 1997).

248. JSC Foreign Econ. Assoc. Technostroyexport v. Int’l Dev. & Trade Servs., Inc., No. 03 Civ. 5562 (JGK) (AJP), 2005 WL 1958361, at *10 (S.D.N.Y. Aug. 16, 2005) (citing Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066 (2d Cir.1979)) (further citation omitted).

249. Cielo Creations, Inc. v. Gao Da Trading Co., 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)) (internal quotation omitted).

250. Fed. R. Civ. P. 37(a)(3)(A), (B)., 37(a)(5).

253. Fed. R. Civ. P. 37(a)(5)(B).

254. Id. 37(a)(5)(C).

255. Id.

257. See 1970 Amendments to Fed. R. Civ. P. 37(d), advisory committee notes (“[T]he total noncompliance with which Rule 37(d) is concerned may impose severe inconvenience or hardship on the discovering party and substantially delay the discovery process.”) (citation omitted).

258. Fed. R. Civ. P. 37(d); see id. 37(b)(2)(A)-(C).

259. Id. 37(d)(2).

260. Id. 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 notes.

261. Fed. R. Civ. P. 37(c)(1).

266. 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).

267. 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). 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.”).

268. See, e.g., Century ML-Cable Corp. v. Carillo, 43 F. Supp. 2d 176, 184 (D.P.R. 1998); Skeete v. McKinsey & Co., 1993 WL 256659 , 1993 U.S. Dist. LEXIS 9099, *8 (S.D.N.Y. July 7, 1993); Telectron Inc. v. Overhead Door Corp., 116 F.R.D. 107, 135 (S.D. Fla. 1987).

269. 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).

270. 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).  

Updated 2010