Chapter 6: Pretrial and Trial Practice

Updated 2013

Without intending to be comprehensive, this chapter discusses a variety of procedural issues related to litigation and trial practice, roughly in the chronology of litigation. First,  the chapter deals with conferences and scheduling, with particular attention to the role of magistrate judges.  Second, the chapter reviews informal and formal methods of discovery, including mandatory initial disclosures and conferences involving discovery issues. Mechanics, strategy, and practice pointers are included.

Third, the chapter delves into motions practice, including motions for emergency relief and for summary judgment, which should be of particular interest to legal aid attorneys. Fourth, the rise and use of mandatory or encouraged alternative dispute resolution (ADR) procedures are covered and practical advice on the use of ADR and crafting litigation to make subsequent use of ADR more successful is included. Finally, the chapter discusses both trial and appellate practice.

Updated 2013

6.1 Conferences and Scheduling

Updated 2013 by Peter Sleasman, 2015 by Jeffrey S. Gutman

Very shortly after the complaint is filed, you will need to prepare for a set of conferences. Federal Rules 16 and 26(f) govern these conferences, but set forth the timing of them in a fairly confusing way. Consult your court's Local Rules or your judge's standing order for an understanding of the sequencing of these conferences. The purpose of the discovery conference is to develop a mutually acceptable discovery plan which anticipates and attempts to resolves potential discovery issues. The pretrial conference with the court -- used to greater or lesser extent depending on the judge and the nature of the case -- is intended to permit the court to exercise managerial control over the case in order to resolve it efficiently./1/ Important decisions are made at these conferences; you should prepare for them carefully. This preparation requires you to anticipate and take positions on issues which may occur much later in the litigation.  

6.1.A. Conference of Parties, the Joint Discovery Plan, and Discovery Planning

As soon as practicable, and at least 21 days prior to the Rule 16(b) scheduling conference or filing of a scheduling order, the parties must confer. At this meeting, referred to as a “Rule 26(f) conference,” counsel and unrepresented parties must, among other tasks, confer to "consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.”/2/In most cases, the parties may not seek discovery from any source before they have conferred as required by Rule 26(f)./3/

The Rule 26(f) conference typically occurs very early in the litigation and requires a significant amount of case and discovery planning prior to the meeting. At a minimum, the parties will be required to develop a discovery plan that addresses the subjects listed in Fed. R. Civ. P. 26(f)(3). In addition, many courts require the parties to discuss and agree on a variety of case management issues such as discovery and motion deadlines limits on certain types of discovery,/4/ expert witness disclosures,/5/ depositions, discovery of electronically stored information/6/, and the trial date. A joint written report of the conference must be submitted to the court within 14 days of the conference. The court will rely on the report to set case management deadlines that may not be easily altered later without a showing of good cause. See Section 6.1.B. infra. Be sure to check your local rules and your judge’s individual practice regarding Rule 26(f) conferences and their reports./7/  

Apart from the discovery plan that must be discussed with opposing counsel, you must develop your own internal plan, which should be reviewed and revised as the litigation progresses. Successful discovery requires that you identify what you must prove as early as possible. The plan should identify the facts that you must prove, the discovery tools most likely to assist in proving those facts, and a sequence for using the various discovery tools. As you accumulate information, you must maintain a carefully organized file that shows both the content and the source of every document. As the case develops, continue to identify the facts that you can prove and how you will prove them. In more complex litigation, you may find it useful to create a computerized database of documents and potential testimony.

The discovery plan should set forth the sequence of discovery. If you anticipate protracted discovery, you should begin it promptly and proceed in stages. Some basic information should be given automatically under the Rule 26(a)(1) initial disclosures. You can then use carefully drafted interrogatories to identify other documents and their respective custodians, potential witnesses, objective facts and the contentions of the opposing parties. Next, request production of documents and, when appropriate, request admissions. Last, depose important witnesses and again consider requests for admission. In a class action, early discovery should also establish the existence of a class and, when feasible, the identity and addresses of class members. As you complete each stage in your discovery plan, you should review and modify it to reflect what you have learned.

The amount, order, and type of discovery needed varies from case to case. In many instances, however, recurring issues make it possible to borrow liberally from discovery requests used in similar cases. National support centers may have forms available. In an appropriate case, form books on discovery, particularly American Jurisprudence Proof of Facts, may be helpful. Charles A. Wright, Arthur R. Miller, and Edward H. Cooper’s Federal Practice and Procedure forms can be helpful, and forms are becoming increasingly accessible on the Internet. Recognize the limitations of forms: they save time, but they were not written with your specific case in mind. Use them as a beginning rather than as an end.

There is danger in not using discovery tools to the fullest extent. If you are unfamiliar with the full potential for discovery, you may overlook important opportunities. Discussing discovery with more experienced counsel is always worthwhile. The underutilization of discovery is especially common in test case litigation, where a focus on critical legal issues may obscure the need for thorough discovery. Impact litigation is often dependent upon compelling facts that convince the court that its intervention is necessary to correct a systemic injury. Discovery is vital to finding the facts to make a record as the foundation for successful litigation.

 6.1.B. Scheduling Orders and Pretrial Conferences

Rule 16(b) generally requires the court to a scheduling order. Unless the court finds good cause for delay, that order must be issued within 90 days after any defendant has been served or 60 days after any defendant has appeared, whichever is earlier./8/ The order must also follow either receipt of the parties' Rule 26(f) report or after consulting with the parties at a scheduling conference./9/ It is important for you to know what may be discussed at the conference so that you can be prepared to advocate on these issues. The scheduling order must limit the time to join other parties, amend pleadings, complete discovery and file motions./10/ It may modify the timing of initial disclosures, modify the extent of discovery, provide for the discovery of electronically stored information, include agreements on privileged or protected material, set dates for pretrial conferences, and require a conference with the judge prior to filing a motion relating to discovery./11/ Modifications to the scheduling order may be modified only for good cause and with the permission of the judge./12/

Magistrate Judge Wayne Brazil, writing in Moore's Federal Practice, offers excellent advice with respect to the Rule 16 conference:

 [M]uch of the danger in practice under Rule 16 arises only for lawyers who are not well prepared, or who do not communicate or cooperate with one another. Aside from squandering an opportunity to save the client money and the attorney stress and distraction, a lawyer who is not prepared for a Rule 16 conference runs a substantial risk that a better-prepared opponent will persuade the judge to enter orders that put the unprepared lawyer at a severe procedural disadvantage, or even that cost the client important rights. Moreover, judges form impressions about the quality of counsel, as well as the merits of their cases, through Rule 16 events; these impressions can affect the mind set that judges bring to rulings on important motions, settlement negotiations, or findings at trial. A lawyer who makes a poor impression at a Rule 16 conference, and who cannot articulate credible legal and evidentiary bases for the client's position, needlessly harms both his or her own professional reputation and the client's prospects in the litigation./13/

 Ordinarily, the court will hold one or more pretrial conferences following the scheduling conference.  The subjects of such a conference can include any of the matters listed in Rule 16(c)(2). Rule 16(e) provides that “[t]he order following a final pretrial conference shall be modified only to prevent manifest injustice.” Rule 16(f) authorizes the imposition of sanctions for failing to obey a scheduling or pretrial order, including the ultimate sanction of dismissal./14/ The district court’s decision to impose or refuse sanctions may be overturned only for an abuse of discretion./15/

6.1.C. Assignment of Magistrate Judges

The role and authority of federal magistrate judges is governed by 28 U.S.C. §§ 631 et seq. and Federal Rules of Civil Procedure 72 and 73. Rule 72 permits magistrate judges to decide pretrial matters referred to them by district court judges, and Rule 73 permits them to conduct trials “[w]hen specially designated ... by local rule or order of the district court and when all parties consent.” Magistrate judges may act as special masters,/16/ and may have additional duties established by court order or local rule, so long as these are not “inconsistent with the Constitution and laws of the United States.”/17/ In all of these situations, magistrate judges are authorized to act only to the extent granted by the district court. The advisability of referring matters to a magistrate judge is one of the subjects to be discussed at a pretrial conference. The manner in which cases are assigned to magistrate judges is determined by local rule.

The “pretrial matters” covered by Rule 72 include virtually any motion made before trial and include both “(a) non-dispositive matters” and “(b) dispositive motions and prisoner petitions.” Determining which matters are dispositive is not always easy./18/ For non-dispositive matters, the magistrate judge has the authority to enter an order deciding the matter unless the order of reference directs her merely to make a recommendation. A party who is displeased with the magistrate judge’s ruling may file objections within ten days of being served with the order./19/ Unless the matter was referred solely for a recommendation, the standard of review set forth in Rule 72(a) is highly deferential: “clearly erroneous or contrary to law.”/20/ Objections are heard by the district judge to whom the case is assigned, and may be made in any manner permitted by local rule. Failure to object constitutes a waiver of the right to review of the magistrate judge’s order, but the district judge may elect to review it sua sponte./21/

For dispositive pretrial motions under Rule 72(b), the magistrate judge may make findings and a recommendation, but does not enter an order. Any objections must be "specific" and filed within fourteen days./22 / The party opposing the objection is expressly permitted to file a written response within fourteen days of service of the objections. The review by the district judge assigned to the case is de novo./23 / A record of the proceedings before the magistrate judge is made in order to permit such de novo review, and the party objecting must “promptly arrange” for its transcription./24/ A district judge has no obligation to review the magistrate judge’s recommendation on a dispositive matter in the absence of an objection./25/

Upon review of objections, the district judge “may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate with instructions.”/26/ The district judge must not, however, merely rubber-stamp the recommended decision./27/ Even so, no specific findings are necessary to satisfy the judge’s review responsibility./28/

Rule 73, implementing 28 U.S.C. § 636(c), gives magistrate judges authority to “conduct any or all proceedings, including a jury or non-jury trial, in a civil case” on two conditions./29/ The first is that they have been “specially designated to exercise such jurisdiction by local rule or order of the district court,” and the second is that all parties consent./30/ To protect against a party feeling coerced into accepting such a referral, subsection (b) of the rule provides that each party’s position on consent is to be filed but not revealed to the judge or magistrate judge unless all parties consent./31/ Implied consent to trial by the magistrate judge is permitted “when the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge.”/32/ If any parties are added to the case after the original parties have consented to trial before the magistrate judge, care must be taken to obtain their consent./33/ Once the matter is referred, the order of reference can be vacated by the district judge “for good cause shown on its own motion, or under extraordinary circumstances shown by a party.”/34/ There is some authority that a magistrate judge may also permit withdrawal of consent./35/

The only exception to the magistrate’s plenary power to hear a case referred under Rule 73 is that she may not find parties in contempt. Section 636(e) mandates that the district judge hear such matters when the magistrate issues an order to show cause. A record of the proceedings before the magistrate judge must be kept unless the parties agree otherwise; they may also agree on a method of recording other than the use of a court reporter./36/ Under Rule 73(c), appeal from a judgment entered by a magistrate judge “will lie to the court of appeals as it would from a judgment of the district court.”  Review in the court of appeals is the same as if the judgment had been entered by a district judge./37/

____________________________________________________________________________________


1. Fed. R. Civ. P. 16(a).

2. Id. 26(f). 

3. Fed. R. Civ. P. 26(d).

4. The Federal Rules have presumptive limits on some forms of discovery. E.g., absent stipulation or leave of court, each side is limited to 10 depositions and interrogatories are capped at 25. See Fed. R. Civ. P. 30(a)(2)(A)(i); 33(a)(1). If the parties intend to exceed these limits, many courts require the issue to be addressed at the 26(f) conference and report.

5. Many courts require the 26(f) report to address the dates and sequence for disclosure of expert reports and related expert depositions under Rule 26(a)(2). Therefore, conferring with your expert prior to the 26(f) conference is advisable.

6. Many courts require the parties to discuss and report on issues relating to the disclosure or discovery of electronically stored information as part of the Rule 26(f) requirement. The parties may be required to report on matters such as the nature and extenet of the contemplated disclosure of electronically stored information, the form in which the electronically stored information should be produced, and the estimated burden or costs of retrieving and reviewing that information.

7.  Rule 26(f)(4) allows local practice variations regarding timing of the conference and the issuance of a report. Consult your court’s local rules for implementation of the mandatory initial disclosure requirements and procedures. Id.

8. Fed. R. Civ. P. 16(b)(2).

9. Id. 16(b)(1).

10. Id. 16(b)(3)(A)

11. Id. 16(b)(3)(B).

12. Id. 16(b)(4)Compare Summers v. Mo. Pac. R.R. Sys., 132 F.3d 599, 604-06 (10th Cir. 1997) (permitting modification) and Burton v. United States, 199 F.R.D. 194, 197 (D. W. Va. 2001) (same) with Book v. Nordrill Inc., 826 F.2d 1457, 1461 (5th Cir. 1987) (refusing to permit new expert to testify); Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 140 (D. Me. 1985) (denying modification). See Marmo v. IBP, Inc., No. 8:00CV527, 2005 WL 675809, at *2 (D. Neb. Feb. 3, 2005) (In holding there was no showing of good cause for modification of case management order to allow designation of new expert witness, court noted that the “primary measure” of the Rule 16 good cause standard “is the moving party's diligence in attempting to meet the case management order's requirements.”).

13. 3 James Wm.  Moore et al., Moore's Federal Practice para. 16.05 (2010).

14. Spain v. Bd. of Educ. of Meridian Cmty. Unit Sch. Dist., 214 F.3d 925, 930 (7th Cir. 2000).

15. See, e.g., Sanders v. Union Pac. R.R., 193 F.3d 1080, 1082 (9th Cir. 1999) (en banc).

16. 28 U.S.C. § 636(b)(2); see Fed. R. Civ. P. 53.

17.  28 U.S.C. § 636(a), (b)(3)  .

18. See, e.g.,  Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006(denial of motion to amend not dispositive, but noting cases to the contrary); Vogel v. U.S. Office Prods. Co., 258 F.3d 509, 517 (6th Cir. 2001) (order of remand is dispositive and can only be entered by district court); Calabro v. Stone, No. CV2003-4522 (CBA)(MDG), 2005 U.S. Dist. LEXIS 5527, at *1, 2005 WL 327547, at *1 (E.D.N.Y. Jan. 27, 2005) (ruling on motion to amend complaint treated as dispositive, but acknowledging contrary case law); Benedict v. Zimmer, Inc., 232 F.R.D. 305 (N.D. Iowa 2005) (motion for leave to provide expert report is nondispositive matter); Yang v. Brown Univ., 149 F.R.D. 440, 442-43 (D.R.I. 1993) (order precluding testimony of expert witness as discovery sanction deemed dispositive). Cf. Fed. R. Civ. P. 54(d)(2)(D) (district court “may refer a motion for attorneys' fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter.”).

19. Fed. R. Civ. P. 72(b).

20. Particularly in the discovery context, this is viewed as an abuse-of-discretion standard. See, e.g., Anjelino v. N.Y. Times Co., 200 F.3d 73, 88 (3d Cir. 1999).

21. Fed. R. Civ. P. 72(a). Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760-61 (7th Cir. 2009). 

22. Fed. R. Civ. P. 72(b)(2). The right to de novo review is confined to the specific issues raised by the objection. See, e.g., Whitehead v. Okla. Gas & Elec. Co., 187 F.3d 1184, 1190 (10th Cir. 1999).

23. Fed. R. Civ. P. 72(b)(3). See McCombs v. Meijer, 395 F.3d 346, 360 (6th Cir. 2005) (district court cannot simply “concur” in the magistrate’s findings, but must conduct its own review).

24. Fed. R. Civ. P. 72(b).

25. See, e.g., Thomas v. Arn, 474 U.S. 140, 153 (1985).

26. Fed. R. Civ. P. 72(b).

27. See, e.g., Patel v. Baluyot, 2010 U.S. App. LEXIS 13442, at *5 (5th Cir. Jun. 30, 2010); United States v. Vosburgh, 602 F.3d 512, 526 (3d Cir. 2010); Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991). See also McCombs, 395 F.3d at 360.

28. Garcia v. City of Albuquerque, 232 F.3d 760, 766 (10th Cir. 2000); see also, United States v. Bach, 2010 U.S. App. LEXIS 16339, at *9-10 (1st Cir. Aug. 5, 2010).

29. In some jurisdictions, one benefit of consenting to trial by a magistrate judge is that the parties are able to obtain a date certain for trial. District judges are required to give priority to criminal trials, and this priority often results in changes or delays in the trial of civil cases.

30. See Roell v. Withrow, 538 U.S. 580, 585 (2003).

31. See also  28 U.S.C. § 636(c)(2) . Parties are to be advised “that they are free to withhold consent without adverse substantive consequences.” Id.

32.  Roell, 538 U.S. at 590.

33. Mark I, Inc. v. Gruber, 38 F.3d 369, 370 (7th Cir. 1994).

34. Fed. R. Civ. P. 73(b); 28 U.S.C. § 636(c)(4) . See also Manion v. American Airlines, Inc., 251 F. Supp.2d 171, 175 (D.D.C. 2003) (allegation of magistrate bias found insufficient to meet “extraordinary circumstances” standard required to vacate referral with consent of parties).

35. Sockwell v. Phelps, 906 F.2d 1096, 1097 n.1 (5th Cir. 1990).

36.  28 U.S.C. § 636(c)(5) .

37. See, e.g., Lady v. Neal Glaser Marine Inc., 228 F.3d 598, 601 (5th Cir. 2000), cert. denied, 532 U.S. 941 (2001).

Updated 2013 by Peter Sleasman, 2015 by Jeffrey S. Gutman

6.2 Discovery

Updated 2013 by Gregory Bass, 2015 by Jeffrey S. Gutman

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.

6.2.C.1. Interrogatories

 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

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 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

          6.2.C.4.a.1. Procedure

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. 

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  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 . . . [o[]ne 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 [1970] . . . 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 LLC/301/ - 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).

33Fed. 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).

91Id.

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).

139See 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.”). 

144Fed. 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).

199State 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 Duq. L. Rev. 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 S.D. L. Rev. 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, 254 F.R.D. 147, 151 (D.D.C. 2008), 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.

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 321-322. 

306.  Id. at 322-323,

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).

3645. 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).

388In 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).

Updated 2013 by Gregory Bass, 2015 by Jeffrey S. Gutman

6.3 Motions Practice

Updated 2013 by Gill Deford

To a great extent, federal litigation practice is a motions practice. Legal aid attorneys often challenge agency regulations or practices on constitutional or statutory grounds or both. Facts are often not in dispute and plaintiffs seek judgment as a matter of law. In such cases, neither discovery nor settlement features prominently in the litigation strategy. Rather, such cases are resolved through motions to dismiss or for summary judgment.

6.3.A. Procedure on Motions

A motion is a request for a court order. Federal Rule of Civil Procedure 7(b)(1) requires that all motions, except those made at trial, be made in writing and state with particularity the grounds supporting the motion and the relief or order sought. As discussed below, other rules set out specific requirements for particular kinds of motions. Typically, the motion is accompanied by a memorandum of law and a proposed order. When appropriate, you may establish facts in support of a motion by appending a declaration or an affidavit, which, in turn, may authenticate or explain attached documents or both. All motions are to be signed in accordance with Rule 11./1/

Local rules of court typically provide detailed requirements regarding the form, content, length, and timing of motions, memoranda, and proposed orders./2/ Motions are generally quite brief and simply state the nature of the motion and invite the court to review the accompanying memorandum./3/ Local rules frequently require motions to certify that the movant consulted unsuccessfully with opposing counsel to resolve the matter at issue. Clerk’s offices refuse to permit filing of such motions without a required certification. Review your local rules with care and comply with all such certification requirements. Local rules frequently also identify categories of information, such as social security numbers, names of children, dates of birth and identifiable financial data, which must not be filed electronically with the court. Ordinarily, such information must be redacted from public filings and, when necessary, filed under seal with the court. Before filing a document with the court, review it carefully for confidential personal information and consult the local rules and experienced attorneys in your office regarding filing requirements.

Motions practice may also be governed by standing orders of the court. Standing orders may be issued by the particular judge hearing the case, or the court may issue specific scheduling orders pursuant to Rule 16(b). Some courts use case management tracking systems based on the expected complexity of the case and direct cases into alternative dispute resolution procedures. If you are new to the district in which you are practicing, consult with senior attorneys in your office for advice on the sources of local written litigation procedure as well as the unwritten local customs and practices that judges and opposing counsel expect you to follow.

The amount of factual detail and legal support necessary for a memorandum of law depends on the nature of the motion involved, the anticipated position of the opposing party, and the expectations of the court. Most memoranda include a brief introduction to familiarize the court with the case and the issues presented in the motion and follow with sections containing the pertinent facts, statutory framework, legal arguments, and the specific relief requested in the motion. If you represent the moving party, do not forfeit the opportunity to file a reply brief. The reply can and should respond to the arguments made by the opposing party and identify the argument you have made that have gone unrefuted. It is generally best not to introduce new arguments in the reply brief in support of the motion; doing so will likely result in a request to file a sur-reply which gives your opponent the last word. The content of your briefs should be concise and persuasive; heated rhetoric is usually not effective.

Unless your local practice provides otherwise, a motion should be accompanied by a proposed order granting the relief your client requests. It should be cast in the present tense, so that the judge may execute the order in the presence of counsel at the time of presentation. A carefully considered and drafted proposed order may well be signed by a busy federal judge. If you are seeking several forms of relief, set forth each request in a separately numbered paragraph. Do not assume that the judge will simply ignore your proposed order and craft her own. A thoughtfully prepared proposed order is itself an advocacy piece and may create a framework for oral argument and the judge’s consideration of your motion.

Although there are differences of opinion about the importance of oral argument, the better practice is to request oral argument on any motion critical to your case. If your motion is complicated or if opposing counsel has made strong arguments, oral argument may be useful. Similarly, if the judge assigned to your case is unfamiliar with or unsympathetic to the issues of legal aid clients, you may want an opportunity to answer any questions that the court may have or to persuade the court of the basis of the claims. If you have been constrained by the court’s page limits on briefs, oral argument is an opportunity to elaborate on issues of particular interest to the judge.

Check your local rules or consult with those knowledgeable about unwritten practices to see what steps are necessary to request oral argument on a motion. In some districts, oral argument must be specifically requested; in others, it will be granted only upon a “proper showing” to the presiding judge. In many jurisdictions, oral argument is uncommon. If the assigned judge allows oral argument, find out how that judge conducts motions hearings. Sit in the courtroom for a few hours to observe; talk to other attorneys who have appeared before the judge. Find out whether the judge limits the time for argument and whether there is opportunity for rebuttal. The more you can learn about how a hearing might proceed, the more prepared and effective you can be.

6.3.B. Motions Addressed to the Pleadings and Parties

6.3.B.1. Rule 12

In many cases, a defendant’s first response to a complaint is to file a motion to dismiss pursuant to Rule 12(b)./4/ The defendant’s Rule 12(b)(6) motion—the Rule 12(b) motion you are most likely to encounter— will generally argue either that the factual allegations made in the complaint, even if true, do not set forth a cognizable legal claim, or that the complaint is factually insufficient in that, for example, it fails to allege facts that are sufficient to state a plausible claim for relief. The first sort of argument raises questions of law for briefing, many or all of which you would have considered pre-filing and have discussed in your pre-filing litigation memorandum. The second sort of argument will require you to consider whether to oppose the motion on the ground that the complaint satisfies notice pleading standards,/5/ or whether to move to supplement or amend the complaint to add more factual allegations consistent with Rule 11./6/

6.3.B.2. Rule 15

Rule 15(a)(1), which governs amending pleadings as a matter of course, was changed significantly effective December, 2009. It now permits a plaintiff that has filed a complaint an opportunity to amend the complaint without leave of court 1) within 21 days of service or 2) when an answer is required, within 21 days of the filing of the answer or 21 days after a Rule 12(b), (e) or (f) motion is filed, whichever is earlier. The purpose of the new rule is to permit the pleader a limited amount of time to amend their complaint in response to assertions made in the answer or arguments made in a Rule 12 motion. Doing so may serve to limit the disputes between the parties or moot points made in the Rule 12 motion. /7/ No longer may the plaintiff wait after a motion to dismiss (filed without an answer) to file an amended complaint as a matter of course. And, no longer does the filing of an answer preclude the plaintiff from amending as a matter of course. Following the expiration of these periods (with or without the filing of an amended complaint), amended complaints may be filed only by leave of court or written consent of the adverse party. Leave to amend should be freely given. A court's refusal to grant leave to amend is reviewed under an abuse of discretion standard, unless the denial is based on futility, in which case the court applies a de novo standard of review./8/ Typically, the motion for leave to file an amended complaint attaches the amended complaint, which is deemed filed when the motion is granted. In Krupski v. Costa Crociere S.p.A., the Supreme Court recently eplained the relation-back doctrine for amended pleadings that is set out in Rule 15(c)./9/

6.3.B.3. Rule 19

Legal aid advocates should have a working knowledge of Federal Rule of Civil Procedure 19, which deals with the compulsory joinder of parties. Rule 19(a) establishes the rule for determining whether a party is “necessary” and who must therefore be joined if possible. Joinder may, however, not be feasible if the person is not subject to service of process, if joinder deprives the court of subject-matter jurisdiction, and if the party properly objects to venue./10/ In such cases, Rule 19(b) requires the court to determine whether the action should proceed without the necessary party or whether the party is indispensable, and, therefore, the case must be dismissed./11/

6.3.B.4. Rule 23

In class actions, the complaint should contain allegations concerning the class drafted in light of Rule 23. It should allege facts to support the requirements of numerosity, commonality, typicality, and representativeness. When practical, a motion for class certification can and should be filed with the complaint in order to lessen the defendant's ability to moot out the case by providing quick relief to the named plaintiffs. Other cases may require discovery to establish the factual basis for class certification. A motion for class certification and accompanying memorandum must contain the evidence and argument necessary to demonstrate that the prerequisites of Rule 23(a) are met and that the action is maintainable under one or more of the forms of class actions listed in Rule 23(b). Again, be sure to consult your local rules, because many districts have specific requirements on the form of class action complaints and a limited time, often sixty or ninety days, after filing the complaint within which the motion for class certification must be filed./12/  In class actions in which you seek a temporary restraining order (TRO) or preliminary injunction on behalf of the class, you should move immediately for conditional class certification under Rule 23(c).

6.3.B.5. Rule 25

Legal aid attorneys frequently need to substitute parties when a client dies or becomes incompetent and when government officers change. Under Rule 25(a), if a party dies, but the claim survives, a motion to substitute may be made by any party or the decedent's successor or representative. The action is dismissed if the motion is not made within ninety days after "service of a statement noting the death."/13/ A statement or suggestion of death is not required to be filed./14/ The ninety day period only begins to run upon filing and proper service./15/ Given the language of the Rule, there is sometimes controversy over the nature of the document that qualifies as a "statement." Such a statement is a formal and specific document resembling Federal Rule of Civil Procedure Form 9. Federal courts have frequently described the triggering statement as a “formal” document./16/ When a public officer is a party to a pending action and dies, resigns, or ceases to hold office, the successor is automatically substituted as a party./17/ A suggestion of substitution may be filed by either party and the court may order substitution, but its failure to do so is not important.

6.3.C. Preliminary Relief

6.3.C.1. Preliminary Injunctions

Federal Rule of Civil Procedure 65 governs motions for TROs and preliminary injunctions. Because complex and varying circumstances often arise, trial courts are given broad discretion over granting or denying preliminary relief. Such orders accordingly are reviewed for abuse of discretion./18/ The standards for both TROs and preliminary injunctions are formulated by case law rather than by rule or statute; the standards have sometimes been formulated differently in different circuits. However, the Supreme Court's recent decision in Winter v. Natural Resources Defense Council, established a more exacting standard and limited to some degree a sliding scale approach./19/ To obtain a preliminary injunction, the plaintiff must establish that it is:

  • likely to succeed on the merits;/20/

  • likely to suffer irreparable injury if preliminary relief is denied;

  • the balance of equities tips in the plaintiff's favor; and

  • an injunction would serve the public interest./21/

The Court rejected the Ninth Circuit's sliding scale approach in which only a "possibility" of irreparable injury was sufficient when the plaintiff showed a "strong likelihood" of prevailing on the merits./22/ Instead, the Court held that a likelihood of irreparable injury is required, in keeping with the notion that preliminary injunctive relief is an extraordinary remedy requiring a "clear showing" of entitlement./23/ Winter, involving the Navy's use of sonar in training exercises and its potential impact on aquatic wildlife in the Pacific, also raised the profile of the balance of equities and public interest factors, regarding those factors as "important" and criticizing the Ninth Circuit for giving them cursory consideration./24/ Indeed, even assuming a likelihood of irreparable injury, the Winter majority found these factors to outweigh it.

Where Winter leaves the oft-used sliding scale analysis is not clear. One way of reading Winter is that "likelihood" of irreparable injury is a now a floor and a showing beyond it may be balanced against a relatively weaker showing on the remaining factors. In dissent, Justice Ginsburg wrote:

Consistent with equity's character, courts do not insist that litigants uniformly show a particular, predetermined quantum of probable success or injury before awarding equitable relief. Instead, courts have evaluated claims for equitable relief on a "sliding scale," sometimes awarding relief based on a lower likelihood of harm when the likelihood of success is very high. This Court has never rejected that formulation, and I do not believe it does so today./25/

Winter did not specifically address a converse question: given a showing of a likelihood of irreparable injury, may a court issue a preliminary injunction based on something less than a likelihood of success if the remaining factors weigh in favor of preliminary relief? The Second Circuit, for example, requires a showing of irreparable injury and either "(1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief."/26/ Given the relative uncertainty of success, the balance of hardships must tip decidedly in the movant's favor. The Fourth Circuit has read Winter to reject this sort of sliding scale inquiry in cases in which the movant has not established that it is more likely than not that they will prevail./27/ The Second, Seventh and Ninth Circuits have disagreed and held that a sliding scale formulation survives Winter so long as a likelihood of irreparable injury is shown./28/ Given this emerging split in the circuits, consult the law in your circuit to ascertain the standard, and if one does not yet exist, review the developing law in other cirucits in formulating your argument. 

When researching a potential motion for preliminary injunction, determine whether the applicable statute authorizes injunctive relief. Some cases have held that no showing of irreparable injury is necessary to obtain a preliminary injunction pursuant to such statutes because Congress has implicitly determined that a statutory violation is irreparable. Given the Supreme Court's repeated holdings regarding express and implied directions in legislative language, be very cautious in arguing that the plaintiff need not establish the threat of irreparable injury when seeking statutorily authorized injunctive relief.

6.3.C.2. Temporary Restraining Orders

Under Rule 65(b), the court may grant a TRO ex parte, without notice to the opposing party, only if (1) specific facts shown by affidavit or by a verified complaint "clearly" show that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition and (2) the applicant’s attorney certifies to the court in writing the efforts, if any, that have been made to give the notice and the reasons supporting his claim that notice should not be required./29/

A TRO expires at any time that the court fixes, not to exceed fourteen days./30/ However, the court may extend the order for another period of fourteen or fewer days for good cause shown or for a longer period if the adverse party consents. After an ex parte TRO is granted, the motion for a preliminary injunction is set for hearing at the earliest possible time and takes precedence over all other matters except older matters of the same character./31/ On two days’ notice to the party that obtained the ex parte TRO, or shorter notice if the court so prescribes, the adverse party may move for modification or dissolution of the TRO./32/ Rule 65(b)(2) and Rule 65(d) detail what the court must state on the record or in the injunction.  

Rule 65(c) requires an applicant for a TRO or preliminary injunction to post security for the issuance of preliminary relief in the event that the court later finds that the opposing party was wrongfully enjoined. Because this is likely to be a problem for legal aid clients, you must seek a waiver of this requirement and document your client’s inability to post security. The court may dispense with security when the applicant does not have the resources to post a bond./33/
 
The Federal Rules do not favor ex parte TROs, as they are contrary to the adversarial system of justice. Unless you believe in good faith that notifying the opposing party will cause it to harm your client, try first to negotiate a settlement with the opposing party. Rule 65(b)(1)(B) requires an attempt to give notice and, in exercising its equitable authority, the court will want to know that you have attempted to resolve matters without taking valuable court time on an emergency basis. During negotiations, you may want to give to opposing counsel a draft of your TRO memorandum or notice of the statutory, regulatory, or case authority upon which you are relying. As a general proposition, the more candid you are in attempts to resolve matters without court involvement, the more reasonable you will appear to the court. Therefore, no matter how hurried you are, keep a record of all contacts with the opposing party or counsel and confirm them in a letter at the earliest possible time. At the same time, do no permit these discussions to drag on; real or perceived delay in seeking emergency injunctive relief may be viewed as suggesting the lack of irreparable injury. Despite the urgency, take extreme care in drafting the declarations or affidavits you draft, which must be signed under oath and will undoubtedly be examined carefully at this and future stages of the litigation.

If a temporary settlement is not feasible, or is too time-consuming, call the court clerk’s office or district judge’s chambers, depending on who does scheduling in your district, and request a hearing time. As soon as you schedule a hearing, notify opposing counsel or parties by phone, followed by a confirming letter. Review all of your documents at this point to make sure they are in order, and, in particular, check your proposed order to see that it contains the detail required by Rule 65(d).

Although TRO hearings are often held in chambers and without evidence, be prepared to present witnesses to prove your need for a TRO. Whether or not you are in chambers, presentation of the facts is crucial. Of the elements for a TRO, proof of imminent irreparable injury is the most important. In litigation over public benefits, the client’s loss of a social welfare benefit can be irreparable injury./34/ At a hearing on a motion for preliminary injunction, you should also be prepared to present live testimony, although your motion papers will present the relevant facts through declarations. The witnesses should be present even if the practice of the court is not to take such testimony. Many judges conduct a “mini-trial” on a preliminary injunction. Therefore, be prepared to present a compelling and sympathetic case that the client has been or will be imminently and irreparably harmed by the defendant’s unlawful conduct if preliminary relief is not granted, and will likely prevail on the merits.

Plaintiff must show that preliminary relief will not harm the defendant or that such harm is outweighed by the harm to the plaintiff from denying preliminary relief. In some cases, the plaintiff should be prepared to subpoena and examine the defendant. Although presenting a case only through the client and favorable witnesses is better, having the welfare administrator, housing bureaucrat, or correctional worker before the court not only increases the likelihood that the court will hear testimony, but also ensures that the court can, in fact, enter preliminary relief in the presence of the opposing party.

Rule 65(a)(2) allows for the consolidation of the preliminary injunction hearing with the trial on the merits. In some cases this may be to your client’s advantage, particularly when discovery is not essential.

6.3.D. Summary Judgment

Summary judgment is the procedural device intended to dispose of factually meritless or legally unpersuasive claims and defenses before trial. Federal Rule of Civil Procedure 56 authorizes summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thus, a motion for summary judgment pierces the pleadings to consider the facts of the case. In the last twenty-five years, summary judgment practice has played an increasingly prominent role in the resolution of federal litigation, and federal trial practice has been in relative decline./35/

Either party may move for summary judgment and may do so with or without supporting affidavits./36/ If used, affidavits must be based on personal knowledge, “set out facts that would be admissible in evidence” and show that the affiant is competent to testify on the matter./37/ Unless the objection is waived, hearsay, for example, may not support a motion for summary judgment. If you are relying on the affidavit (or deposition) of an expert witness to oppose or support a motion for summary judgment, keep in mind the rules generally applicable to expert testimony. The affidavit should not just offer conclusory comments; rather, it should set forth the expert’s qualifications as well as the factual basis, reasoning, and methodology underlying the expert’s opinion./38/

The movant may also support its motion for summary judgment with documents, answers to interrogatories, and deposition transcripts obtained in discovery. Review local federal court rules prior to filing a motion for summary judgment. Often, for example, the local rules will require a party to file a statement of material facts not in dispute with the motion. The adequacy of these statements and opposing statements has become an increasing focus of summary judgment disputes. Failure to offer adequate statements of undisputed fact or to oppose the statements of other parties can severely prejudice your clients./39/

The 2009 amendments to Rule 56 made significant changes to timing issues involving summary judgment motions.  A movant may now file immediately after a complaint is filed./40/ Unless otherwise ordered or prescribed by local rule, motions for summary judgment may be filed until 30 days after the close of discovery. Oppositions are due within 21 days and replies fourteen days after service./41/ 

The moving party always bears the burden under Rule 56(c)(2) to establish the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. An issue of material fact is one “that might affect the outcome of the suit under the governing law.”/42/ A genuine dispute is one that a reasonable jury can resolve against the moving party./43/ The judge’s role is not to weigh the evidence, but instead to determine whether there is a relevant and triable factual issue. Nonetheless, some evaluation of the evidence is necessary to determine whether a jury can reasonably find in favor of the nonmoving party. That evaluation incorporates the standard of proof at trial, whether it is preponderance of the evidence or clear and convincing evidence./44/

Moreover, in Celotex Corporation v. Catrett the Court tied the nature of the movant’s burden to the allocation of the burden of production in the underlying litigation./45/ Celotex was a wrongful-death case against various asbestos manufacturers and distributors. During discovery, Celotex served interrogatories asking plaintiff to identify any witnesses who could testify to the decedent’s exposure to Celotex products. When plaintiff failed to identify any witnesses, Celotex moved for summary judgment on the ground that plaintiff lacked evidence proving that exposure to Celotex products caused the disease. Plaintiff opposed the motion on the ground that Rule 56 required the defendant to establish the absence of a genuine issue of material fact by filing affidavits specifically negating her claim that the decedent was exposed to Celotex products.

The Court held that the defendant was entitled to summary judgment even though it did not file any affidavits to negate the claim of causation./46/ The Court reasoned that because the plaintiff would have borne the initial burden of production on the issue of causation, had the case proceeded to trial, the defendant would have been entitled to judgment as a matter of law unless the plaintiff produced evidence showing that her husband had been exposed to Celotex products./47/ Summary judgment was proper even though Celotex filed no affidavits because the plaintiffs’ lack of evidence on an issue on which she bore the burden of production necessarily made every other issue nonmaterial./48/

The principal holding of Celotex is clear: Rule 56 requires the entry of summary judgment (after an adequate time for discovery) against a nonmoving party on a claim or defense on which it bears the underlying burden of production whenever the moving party shows that the nonmoving party lacks sufficient evidence to establish one or more elements of that claim or defense. The court must resolve all ambiguities and draw all permissible factual inferences against the movant, and issues of credibility should not generally be resolved by summary judgment. When, however, as in Celotex, a plaintiff cannot prove an essential element of a claim, all other factual issues are immaterial; hence, “no genuine issue as to any material fact” can then exist./49/

Celotex makes clear that the party moving for summary judgment can easily satisfy the initial burden of showing the absence of a genuine issue of fact when the nonmoving party bears the burden on the claim or defense at issue. The motion need not be supported by evidence negating the claim. Rather, the moving party can meet the Rule 56 burden without filing negating affidavits if the responses to discovery show that the nonmoving party will not be able to establish an element of the claim or defense.

Celotex does not affect summary judgment practice when the moving party has the burden of production on the underlying claim or defense. When the moving party has the underlying burden, it must produce affidavits and other material that, if offered at trial, would entitle it to judgment as a matter of law. Thus, Celotex principally affects plaintiffs, since plaintiffs ordinarily bear the burden of production on all elements of a claim. However, because defendants bear the burden of production on most affirmative defenses, Celotex may be invoked against an unsupported affirmative defense.

When faced with a motion for summary judgment, the nonmoving party is likely to try to establish a material factual dispute./50 / If discovery is not complete when the motion is filed, the nonmoving party may file a motion under Federal Rule of Civil Procedure 56(f) with an affidavit in which it must explain that it cannot yet oppose the motion because relevant discovery has not been obtained. If discovery is complete, the nonmovant generally needs to produce discovery or affidavits (or both) demonstrating the existence of a genuine issue of material fact that a reasonable finder of fact could decide in the nonmovant’s favor.

The Celotex and Anderson decisions have had a dramatic impact on the use of summary judgment practice to resolve federal court litigation. The message of the cases for plaintiffs is clear: prompt and thorough discovery is crucial. The impact of Celotex and Anderson in cases involving questions of motive, intent, or state of mind is largely fact dependent. On the one hand, courts commonly hold that summary judgment is not appropriate in cases involving an assessment of credibility, demeanor, and state of mind because this function is reserved for the finder of fact./51/ On the other hand, virtually all cases involve some such element and to deny summary judgment reflexively in all such circumstances would undermine the utility of the summary judgment procedure. For the nonmoving party, resolution of this issue often turns on identifying record evidence revealing important questions of credibility on particular and relevant issues. This underscores the need to approach discovery with great care.

Whenever the plaintiff’s claim crucially depends on expert testimony to establish fault or causation, the defendant can combine a Celotex/52/ summary judgment motion with a Daubert/53 / challenge to the admissibility of plaintiff’s expert testimony./54/ If, under Daubert, the trial court concludes that the expert testimony is inadmissible, and that without that expert testimony plaintiff will lack admissible evidence of fault or causation, then Celotex will require the entry of summary judgment./55/ Good practice, therefore, requires the early retention and preparation of an expert in anticipation of a Daubert challenge likely to accompany a summary judgment motion. Although appeals from orders granting summary judgment are subject to plenary review, General Electric Co. v. Joiner held that when the basis for the grant of summary judgment is the exclusion of expert testimony, deferential abuse of discretion review governs the admissibility determination./56/

____________________________________________________________________________


1Fed. R. Civ. P. 7; Fed. R. Civ. P. 11(a).

2. Local federal court rules can be found on the Internet, using the links at www.uscourts.gov or going to the “Federal Resources” section of www.FindLaw.com.

3. Some local rules, however, require the motion to set forth supporting rules and cases as authority.

4. A Fed. R. Civ. P. 12(b)(6) motion will be treated as a motion for summary judgment under Rule 56 if matters outside the pleading are presented to and not excluded by the court. The advocate should also be familiar with Fed. R. Civ. P. 12(g) and 12(h), which govern when certain defenses may be waived.

5. See Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009); Bell Atlantic v. Twombly, 550 U.S. 544 (2007). See also Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011) (suggesting possible easing of strictest readings of Iqbal and Twombly). The new "plausibility" pleading standards are discussed extensively in Chapter 4 of this MANUAL.

6. A motion to supplement under Fed. R. Civ. P. 15(d) is used to set forth transactions or events that have occurred since the date of the original pleading. It is allowed only by leave of court, and response is required only if the court so orders.

7. Rule 15 Advisory Committee Notes (2009). 

8. See Foman v. Davis, 371 U.S. 178, 182 (1962); Estate of Oliva ex rel. McHugh v. New Jersey604 F.3d 788 (3rd Cir. 2010); In re NVE Corp. Sec. Litig., 527 F.3d 749, 752 (8th Cir. 2008)Franks v. Ross, 313 F.3d 184 (4th Cir. 2002); YWCA v. Allstate Ins. Co., 214 F.R.D. 1 (D.D.C. 2003).

9. Krupski v. Costa Crociere S.p.A., 130 S. Ct. 2485 (2010).

10. Fed. R. Civ. P. 19(a).

11. See Temple v. Synthes Corp., 498 U.S. 5 (1990); Provident Tradesmen’s Bank v. Patterson, 390 U.S. 102 (1968).

12Chapter 7 of this MANUAL discusses class actions.

13. Fed. R. Civ. P. 25; see generally 7C Charles A. Wright et al., Federal Practice and Procedure § 1951 (3d ed. 2007). 

14. McKenna v. Pacific Rail Serv., 32 F.3d 820, 836 (3d Cir. 1994). 

15. Fed. R. Civ. P. 25(a)(3).  

16. Younts v. Fremont County, 370 F.3d 748, 752 (8th Cir. 2004); Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994); Grandbouche v. Lovell, 913 F.2d 835, 836 (10th Cir. 1990); Rothschild v. Board of Educ., 778 F. Supp. 642, 644 (W.D.N.Y. 1991). 

17. Fed. R. Civ. P. 25(d).

18. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006); Ashcroft v. ACLU, 542 U.S. 656, 664 (2004).

19. Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008).  

20. Because the “burdens at the preliminary injunction stage track the burdens at trial,” a party moving for a preliminary injunction does not have the burden of disproving the defendant’s affirmative defense. The defendant’s failure to discharge that burden renders the movant likely to prevail on the merits. O Centro Espirita, 546 U.S. at 429.

21. Winter, 555 U.S. at 20.

22. Id. at 22.

23. Id.

24. Id at 26-27.

25. Id. at 51 (Ginsburg, J., dissenting) (citation omitted).

26. Citigroup Global Markets v. VCG Special Opportunities Master Fund, 598 F.3d 30, 35 (2d Cir. 2010).

27. Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346-47 (4th Cir. 2009), vacated on other grounds, 130 S. Ct. 2371 (2010).

28Citigroup Global Markets, 598 F.3d at 35-38; Hoosier Energy Rural Elec. Co-op., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009)Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011).

29. Fed. R. Civ. P. 65(b)(1); see generally 11A Charles A. Wright et al., Federal Practice and Procedure § 2952 (2d ed. 1995).

30. Fed. R. Civ. P. 65(b)(2). The time period was increased from 10 to 14 days effective December, 2009.

31. Fed. R. Civ. P. 65(b)(3).

32. Id. 65(b)(4).

33. Pharm. Soc’y v. N.Y. State Dep’t. of Soc. Servs., 50 F.3d 1168 (2d Cir. 1995); C.H. v. Payne, 683 F. Supp.2d 865, 885 (S.D. Ind. 2010); Collick v. Weeks Marine, 680 F. Supp.2d 642, 658 (D.N.J. 2009); Brantley v. Maxwell-Jolly, 656 F. Supp.2d 1161, 1177 (N.D. Cal. 2009).

34. Collick, 680 F. Supp.2d at 655-56; Brantley, 656 F. Supp.2d at 1176; Mayer v. Wing, 922 F. Supp. 902 (S.D.N.Y. 1996); McMillan v. McCrimon, 807 F. Supp. 475 (C.D. Ill. 1992). See also 11A Charles A. Wright, supra note 298, at §  2951. 

35. See Martin H. Redish, Symposium: The Civil Trial: Adaptation And Alternatives, Summary Judgment and the Vanishing Trial: Implications of the Litigation Matrix, 57 Stan. L. Rev. 1329 (2005).

36. Celotex v. Catrett, 477 U.S. 317, 323 (1986).

37. Fed. R. Civ. P. 56(e)(1); Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). The Celotex and Anderson cases were the principal catalysts for the increased importance of summary judgment practice.

38. See Chapter 6.6 of this MANUAL for a detailed discussion of expert witnesses.

39. See, e.g. Potter v. District of Columbia, 558 F.3d 542, 548 (D.C. Cir. 2009) (court may accept statement of material facts as true if opposing party does not dispute them); Gosselin v. Webb, 242 F.3d 412, 414, n.2 (1st Cir. 2001); Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1057 (7th Cir. 2001).

40. Fed. R. Civ. P. 56(a), (b)

41. Id. 56(c).

42. Anderson, 477 U.S. at 248.

43. Id.

44. Anderson, 477 U.S. at 248.

45. Celotex, 477 U.S. at 324 (1986).

46. Id.

47. Id. at 323-24.

48. Id. at 322.

49. Id.

50. See generally 10A Charles A. Wright et al., Federal Practice and Procedure § 2725, n.16-22. (3d ed. 1998).

51. See, e.g., Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).

52. Celotex, 477 U.S. 317, 317 (1986).

53. Daubert v. Merrell Dow Pharmaceuticals, Incorporated, 509 U.S. 579 (1993), is discussed extensively in Chapter 6.6 of this MANUAL.

54. General Electric Co. v. Joiner, 522 U.S. 136 (1997).

55. See e.g., Paz v. Brush Engineered Materials, 555 F.3d 383 (11th Cir. 2009) (affirming district court's rejection of doctor's affidavit on diagnosis of disease and granting of summary judgment); Thomas v. City of Chattanooga, 398 F.3d 426 (6th Cir. 2004) (summary judgment for city affirmed since expert’s opposing affidavit asserting municipal policy of condoning excessive force was properly disregarded as inadmissible under Daubert for lack of reliable methodology); Burleson v. Texas Dep’t of Criminal Justice, 393 F.3d 577 (5th Cir. 2004) (summary judgment for prison officials affirmed since proposed expert’s testimony that prison welding shop exposure to radioactive thorium caused plaintiff’s cancer inadmissible for lack of reliable methodology); McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004) (summary judgment for defendants responsible for delay in treating inmate’s spinal epidural abscess affirmed since plaintiff’s expert’s proposed testimony that four hour delay caused or worsened paralysis unsupported by reliable methodology); Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809 (7th Cir. 2004) (summary judgment for employer in ADA claim affirmed since expert affidavit attesting that plaintiff could perform essential functions of job with or without reasonable accommodation was speculative and unreliable); Gabbard v. Linn-Benton Hous. Auth., 219 F. Supp.2d 1130 (D. Or. 2002) (summary judgment for defendant in ADA claim based on “multiple chemical sensitivity” syndrome (MCS); expert affidavit attesting to diagnosis unreliable, noting that no federal court has yet found reliable expert testimony purporting to diagnose MCS; existence and etiology not established by reliable methodology).

56. Gen. Elec. Co., 522 U.S. at 142-43 (“ We likewise reject respondent's argument that because the granting of summary judgment in this case was 'outcome determinative,' it should have been subjected to a more searching standard of review. On a motion for summary judgment, disputed issues of fact are resolved against the moving party--here, petitioners. But the question of admissibility of expert testimony is not such an issue of fact, and is reviewable under the abuse-of-discretion standard.”).  

Updated 2013 by Gill Deford

6.4 Mediation

Updated 2014 by Katherine Greenberg

Some form of alternative dispute resolution (ADR) is likely to be offered, or may be required, before or after filing a federal lawsuit. Before an action is filed in court, some federal agencies make use of either voluntary or mandatory, nonbinding ADR procedures as part of their investigative or adjudicative operations./1/ Federal courts are mandated to provide nonbinding ADR procedures, although the courts have discretion to determine which cases are appropriate for ADR referral./2/ Settlement offers made during the litigation of a claim, either as part of an ADR process or informal negotiations, may present challenging ethical, strategic, and legal issues for the practitioner. This section examines the ADR issues that are most likely to come up in cases handled by legal aid attorneys.

6.4.A. Forms of Judicial ADR

The Alternative Dispute Resolution Act of 1998 requires that “[e]ach United States district court shall authorize, by local rule . . . , the use of alternative dispute resolution processes in all civil actions, including adversary proceedings in bankruptcy . . . .”/3/ The ADR process “includes any process or procedure, other than an adjudication by a presiding judge, in which a neutral third party participates to assist in the resolution of issues in controversy, through processes such as early neutral evaluation, mediation, minitrial, and arbitration . . . .”/4/ Many variations in ADR processes are used in the federal court system, but the most common is mediation. The use of mediation is frequently first raised at the initial Rule 16 pretrial conference, and the parties may be ordered to participate in a settlement conference held before or after completion of discovery./5/

6.4.B. Early Use of ADR

Early use of mediation can help plaintiffs in several ways. First, a well-prepared plaintiff will have a greater command of the factual and legal basis for her claims at an early stage of the litigation, which may result in the mediator perceiving plaintiff to be in the stronger litigation position and thus putting pressure on defendant to settle. Second, an early settlement can be helpful to a legal services program with limited resources to pay for deposition transcripts and other discovery expenses. Third, even if the case is not fully settled through mediation, defendant may be pressured to stipulate to key facts, thus avoiding the need for expensive discovery. Fourth, where there is statutory authority for an award of attorney fees, the settlement conference is an opportunity for the mediator to discuss with defendant and its counsel the costs potentially involved in further litigation.

For all of these reasons, plaintiff should consider pursuing settlement before filing a case and through use of the federal court’s ADR procedures shortly after filing. Sending a settlement offer or a demand letter to defendant or to defendant’s counsel shortly before filing the action permits plaintiff to say that an attempt was made to resolve the matter, and thus to reduce costs, prior to filing. Plaintiff’s counsel may want to present a written settlement offer again to defense counsel before the first pretrial conference to ensure that defendant is aware of plaintiff's settlement position. Plaintiff can request that the court refer the case for mediation at the Rule 16 conference, thereby forcing defendant to articulate specific objections to participating in mediation. A plaintiff with good command of the facts may want to set the mediation for a date after service of the written discovery, but before answers are due or depositions are held, to give an incentive for defendant to settle without having to complete time-consuming and expensive discovery.

6.4.C. Developing a Demand

Having a clear sense of objectives and the prospects for settlement early on is important because the Rule 26(f) conference requires the parties to discuss and assess the prospects for settlement. However, developing a settlement offer requires you to consider carefully the objectives of the lawsuit and to ensure that your client fully understands her interests and priorities as well as the costs and benefits of settlement. You should discuss not only what your client hopes to achieve out of settlement, but also what it would mean for her if a settlement is not reached (for example, she will have to prepare for and attend her deposition, or she will have to wait a longer time before obtaining relief).

One way to start this conversation is by discussing the various forms of relief available and which ones are most important to her.  This conversation is particularly relevant where both monetary and injunctive relief are available—many legal services organizations prefer to push for stronger injunctive remedies in lieu of monetary remedies, but this cannot be done without the consent of the client. It is also important to ensure your client’s expectations are properly adjusted.  A client should understand that her first demand will almost certainly be rejected and that she must be willing to engage in some amount of negotiation, particularly where there are facts or legal principles in dispute. In developing an initial settlement demand, attorneys should consider and discuss any issues that may arise later on in settlement, such as the tax treatment of any settlement monies, whether the settlement will have any impact on the client’s receipt of public benefits, and the particulars of any injunctive remedy.

An issue that may arise in preparing a settlement demand is calculating monetary damages when plaintiff is seeking future wages or private disability benefits for an unknown duration. The amount of such prospective income can be discounted to present-day value, and there are various formulas to calculate this, depending upon assumptions about inflation and other factors./6/ Plaintiff’s counsel should be familiar with the proper formulas to be used in computing interest, inflation, and present value, and may wish to consult with a professional expert in making these calculations.

6.4.D. Successful Use of ADR

If the local ADR process uses third-party neutrals (rather than court officers or court staff), there might be an issue regarding the expense of compensating the neutral. If the court previously granted permission to proceed in forma pauperis, the indigent party may not be required to pay anything. The local ADR rule may provide a procedure to substitute a magistrate or court officer for the third-party neutral when the expense of ADR is an issue. The other party may agree to cover the full cost to utilize a third-party neutral. Perhaps a volunteer mediator would be available through your local pro bono referral program. If ADR cost is a concern, the problem should be raised before the court issues a referral order requiring participation in the ADR process. The referral order addresses compensation of the neutral when there is a cost to the parties. Whether the court uses a standard form referral order or modifies one for particular cases, asking to see the court’s form well before a referral may be made is a good idea.

The referral order will probably require the parties to submit at least one settlement conference statement. There is no commonly employed format for settlement conference statements; they may not even be uniform within the same district. The local procedure may call for exchanging these statements, followed by filing a confidential letter or supplementary statement given only to the mediator, or it may call for submission of confidential statements to the mediator only. The instructions for preparing the settlement statements may emphasize that they should be concise or may set a short page limit. A page limit on the written statements is a significant advantage for the plaintiff who filed a detailed complaint. Settlement statements should typically include a brief statement of the facts; an outline of the legal arguments, including citations to persuasive authority; a summary of the procedural posture, including any pending motions; and a history of settlement discussions between the parties. Attaching copies of the favorable cases to the statements and including the citations in the written statements may be helpful./7/

On the date of the settlement conference, counsel and the parties are expected to appear (in person or by telephone) and orally summarize their litigation positions. The mediator typically meets separately with counsel and the parties to discuss the case and facilitate reaching a partial or full settlement of the action. Mediators differ significantly with respect to style. Where a plaintiff has well-grounded claims, a mediator who is familiar with the relevant area of law and willing to give her opinion of the strength of the parties’ positions is preferable to a mediator who strictly focuses on the numbers. Regardless of substantive knowledge, however, most mediators will use techniques such as bracketing—where the mediator suggests a numerical range and asks both parties to agree to negotiate within it—or a mediator’s proposal—where the mediator proposes a figure at which she thinks the case should settle—to encourage recalcitrant parties to resolve their differences. While it is advisable to know your client’s bottom line before entering mediation, it is not advisable to share that information with the mediator, as she will likely take your bottom line as a starting point to try and push your client beyond where she is willing to settle her claims.

If an agreement is reached during the course of mediation, it is desirable to stay with the mediator and get the basic tenets of the agreement in writing before adjourning for the day. This decreases the likelihood that defendant will later attempt to back out of or rewrite the terms of the agreement. At the same time, it is advisable to allow your client time to consider the terms reached at the settlement conference before signing a full release of her claims.

____________________________________________________________________________________


1. For example, the Equal Employment Opportunity Commission requires federal agencies to make reasonable efforts to settle EEO claims during the administrative process. 29 C.F.R. § 1614.603.

2. See, e.g., In re Atl. Pipe Corp., 304 F.3d 135 (1st Cir. 2002).

3. Alternative Dispute Resolution Act of 1998, 28 U.S.C.§ 651(b).

4. Id. § 651(a).

5. See  Fed. R. Civ. P. 16(c)(2)(I). The Federal Judicial Center, www.fjc.gov., issues useful publications on federal court procedure, including Robert J. Niemic et al., Guide to Judicial Management of Cases in ADR (2001), and Robert J. Niemic, Mediation and Conference Programs in the Federal Court of Appeals: A Sourcebook for Judges and Lawyers (2d ed. 2006). The Civil Litigation Management Manual (2d ed. 2010), issued jointly by the Federal Judicial Center and the Judicial Conference of the United States, the Committee on Court Administration and Case Management, includes sections on ADR and judicial settlement guidelines and offers insight into many other aspects of federal practice.

6. See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983), for a discussion of these factors.

7. Another drafting practice with particular benefit for later use in ADR is annexing key documents as exhibits to the complaint. Reading the correspondence and notices preceding the filing of the action gives the mediator a more objective impression of the history of the dispute (and the lack of responsiveness of defendant in resolving the dispute without need for litigation).

Updated 2014 by Katherine Greenberg

6.5 Trial Practice

Updated 2013 by Laurence M. (Lonny) Rose

A full development of trial principles and techniques is best left for specialized trial practice courses and the treatises and handbooks devoted to the subject./1/ Nonetheless, a brief review of the basics may assist the busy practitioner. Simply stated, the keys to a successful trial are thorough preparation and excellent organization. Maintaining a trial notebook helps you achieve these objectives. A bench book for the judge that contains exhibits, pleadings, and precedent may also prove helpful in both jury and non-jury cases. Being well prepared and organized not only improves the substance of your presentation, but also signals to the judge and the jury that you are trustworthy and credible, attributes that are essential to successful advocacy.

6.5.A. Waiver

The first issue that the lawyer must confront is whether to have the case tried before a judge or a jury. While jury trials are not available in cases seeking only equitable relief or certain federal benefits, a litigant has a constitutional right to trial by jury in virtually any case in which damages are sought. This encompasses most legal aid matters such as consumer cases, fair housing claims, and civil rights actions brought against police, corrections officers, or other governmental personnel./2/ A jury trial, however, must be demanded in the complaint or by written demand served within 14 days after the answer is filed./3/ Otherwise, the right to trial by jury is waived./4/

In certain cases, such as where the issues are unusually complex or you represent an unsympathetic plaintiff, you should consider whether to recommend that your client waive the right to a jury trial. If your recommendation would be affected by the judge to whom the case is assigned, consider omitting the jury demand from your complaint and decide whether to request a jury after you know the specific judge who will hear your case. Remember, though, that if you decide to waive a jury, the defendant may elect to request a jury trial for the very reasons you chose not to. Therefore, if you believe that a bench trial is essential, your only option may be to omit a plea for damages or otherwise limit your pleading to issues not triable by jury.

Timing is another consideration in deciding whether to insist upon a jury trial. Jury trial dockets may move more slowly than a bench trial docket. Always determine whether the client can afford a delay. Of course, a delay may inconvenience the other side as well. Thus, consider whether the imposition is greater for your client or the opposition.

Waiving the right to trial by jury is a decision that should never be made lightly, especially when representing an individual plaintiff. It is a mistake to underestimate the common sense, independence, and intelligence of juries. A jury’s value lies principally in the freshness and independence of a juror’s perspective. Jurors, unlike judges, are not infected by the cynicism of the routine. A jury writes on a fresh slate and may be receptive to arguments that a judge or hearing officer stopped listening to long ago. Depending upon the composition of the pool from which the jurors are chosen, jurors may be more generous in awarding reasonable compensation for a wrong.

6.5.B. Jury Selection

In a jury trial, you will have a limited opportunity to select the jury. The selection process, however, involves the rejection of prospective jurors - through “challenges”- not the selection of acceptable ones. Challenges to prospective jurors are made during or after a voir dire examination, in which members of the venire panel are given information about the case, the parties, witnesses, and counsel, and asked questions as to whether anything in their backgrounds or experience would make it difficult for them to decide the case fairly.

The method by which the voir dire examination is conducted varies from jurisdiction to jurisdiction, and sometimes from judge to judge. Although some courts still permit lawyers to do the voir dire by themselves, it is more common today for the court to conduct the voir dire examination entirely on its own or at least to ask most of the preliminary questions while allowing the lawyers to ask certain follow up questions. Some judges request counsel to submit proposed questions, which may be asked orally by the judge or used in a written questionnaire. Many judges prefer the more limited role of attorneys in voir dire, believing that it expedites the jury selection process and minimizes the opportunity for lawyers to “argue” their case. In preparing for trial, check the local rules and investigate how the judge handles the voir dire process, including whether and how the judge permits attorneys to question potential jurors and the manner in which challenges are to be exercised.

In the courts that permit a more active role for attorneys, the voir dire will be your first significant exposure to the jurors, and it is important to make the most of it. During your questioning, you should educate the jurors about the theme of your case and the strength of your evidence, establish your credibility, and develop a rapport with them. An abbreviated opening statement or preface to the voir dire, if permitted by the judge, is useful to give a broad overview of the case and to show the jurors that you believe in your client’s cause. You may wish to defuse in advance any apparent weaknesses or prejudicial aspects of your case. To learn as much as possible, ask open-ended questions. To keep the jury from getting bored, ask new or altered questions to different jurors, and personalize some questions to a particular individual’s background. If you must delve into potentially sensitive personal information, ask the juror if she would prefer to talk about it with counsel and the judge alone. If possible, have a colleague take notes of the answers so that you appear cordial, respectful, and concerned about their answers.

Even where the court handles the voir dire on its own, you should take advantage of all opportunities to learn as much as possible about the potential jurors. Typically, basic background information on each juror (e.g., age, occupation, marital status, place of residence) will be provided by the court when the panel is seated. Thus, well before trial, you should think carefully about the characteristics and backgrounds, as well as the attitudes and values, of people whom you would expect to be the least disposed towards your case, and then try to develop questions that will aid you in identifying those people who you would strike from the panel.

Based upon the voir dire, you will be allowed to make two types of challenges. First, you may ask the court to excuse a juror “for cause” if the prospective juror’s answers show that he or she cannot be fair and impartial or, for some other reason, is subject to disqualification. In addition, you will be granted a certain number of “peremptory challenges” to remove individuals for any reason, subject to the rule that such challenges may not be used to remove jurors on the basis of race or another federally protected status./5/ Under 28 U.S.C. § 1870, each party in a federal jury trial is entitled to three peremptory challenges unless they share an identity of interest, in which case the judge has discretion to limit each such group to three peremptories. As with voir dire, familiarize yourself in advance of trial with the court’s procedures for how and when such challenges are to be made. At a minimum, have a system that allows you to manage the jurors’ names and the information that they convey so that you will be able to use your challenges wisely.

6.5.C. Opening Statement and Closing Argument

Opening statements and closing arguments serve different purposes and make different demands on the advocate. Each is a form of art requiring careful analysis and preparation. Opening statements and closing arguments should be delivered in a well-paced and well-modulated manner, with minimal reference to notes and much eye contact. In a jury trial, do not patronize the jurors or insult their intelligence; it must be clear that you believe in and respect them. When addressing a jury directly, be yourself. Attempting a new or unfamiliar style may cause the jury to doubt your genuineness, diminishing your credibility.

6.5.C.1. Opening Statement

The opening statement must be tailored to your audience. Judges sometimes read pretrial briefs and are familiar with the issues, but juries certainly will not. From the jury’s perspective, trials are like impromptu theater, and you are on stage at all times. In your opening and throughout the trial, you must tell a story that rings true and resonates with the jurors’ own life experiences.

The opening is a statement; overt argument is improper. Nevertheless, the opening is intended to persuade the fact finder of the legitimacy of your case. Jurors sometimes make up their minds by the time the opening statements are concluded. They pay careful attention because it is the first time that they are being told the full story, they are not yet bored or jaded, they are still anxious about what their duties are in this novel context, and they tend to remember best what they hear first (and last). If they develop a strong opinion based upon the opening, they will tend to focus on and retain the evidence that supports that opinion and ignore or explain away the contrary evidence.

Never devalue your opening or waste time by starting it with disclaimers like “what I say is not evidence.” In a jury trial, the judge will already have so instructed the jury. Instead, utilize the well-accepted principle of primacy to capture the attention of the fact finder immediately. During the first minute, establish your theme by telling your story in a way that a listener unfamiliar with your case will be able to follow it and find it compelling. Keep your story dramatic, human, and organized. Say something early on that will gain the sympathy and pique the interest of the fact finder. Do not include every detail of your case, but include enough to convey a clear picture. Anchor your case to basic points of right and wrong. Be enthusiastic about your client and confident in your case; be a leader, a guide, a teacher, someone who can be trusted. To facilitate communication, repeat key words and phrases, tie everything to the theme, pause for emphasis, and move only during transitions. Use visual aids when permissible. A timeline that displays the significant events or elements of your story is a device commonly used by trial lawyers in opening statements. Headlines that announce a new topic help the listener follow your statement. Maintain eye contact. Reference to a few notes is acceptable, but reading your statement is not.

Emphasize vital pieces of evidence or witnesses, and use expected exhibits when helpful. Confront and minimize the weaknesses in your case but stress the weaknesses of your opponent’s case. End on a strong note or recapitulate your key points. Tell a jury that you are confident that when they hear the evidence, they will return a verdict in your client’s favor.

6.5.C.2. Closing Argument

Although you must review the key evidence in your closing argument, the purpose of the closing is not merely to summarize the evidence. It is a one-way conversation designed to persuade. An outline of the closing should be prepared before the trial begins and should sound the same theme introduced in the opening statement, the direct examinations, the cross-examinations, and the instructions. As the trial progresses, you should add to your outline, making notes about the actual proof that is entered into evidence and how it relates to your argument.

Start with the theme. The theme must relate to an accepted standard with which the fact finder is familiar, typically centered on concepts of justice and fairness. The closing should anticipate and be tied to the jury instructions that the judge has agreed to give. Refer to specific instructions and explain how the evidence meets the standards set forth in the instructions. You need to give the jury reasons to support your contentions so that the jurors can feel reasonably certain that they are doing the right thing. It will also help to arm your “proponents” as they argue for your point of view during deliberations with the other jurors. Show them why each finding you want is right. Highlighting key portions of documentary exhibits and testimony is highly recommended. In addition, the use of charts, diagrams, and other demonstratives summarizing the issues and the evidence bearing on each may be useful. Explain and unify the evidence to support your conclusions.

Analogies drawn from common experience and rhetorical questions help the jury do the thinking on its own to reach the conclusions you are urging. Repetition of key facts and themes in moderation is persuasive. Pace yourself, but build passion and energy into your closing. Question the credibility of the opponent’s witnesses, the facts they assert, and whether their stories are consistent with the jurors’ common sense, while at the same time stressing the credibility of your own witnesses and evidence. Try to show that what the other side wants the fact finder to believe is improbable. Refer to your client by name. Use few notes and maintain eye contact. Keep the argument reasonably short and never boring. Explain how your client has been harmed and why he needs and is entitled to the redress that you are seeking. Ask specifically for the verdict that you want them to reach, and refer to the verdict form.

6.5.D. Preparation and Examination of Witnesses

The attorney’s preparation and examination of witnesses differs if it the task at hand is direct or cross-examination.

6.5.D.1. Direct Examination

Most attorneys try to appear friendly and not aggressive in direct examination of their own witnesses. Effective direct examination requires (1) that you elicit basic facts in a way that makes them understandable to people who are unfamiliar with them; (2) that you maintain continuity despite objections and interruptions; (3) that the witness convey his belief in his testimony and not appear rehearsed; (4) that the rules of evidence be observed; and (5) that a clear record be created in the event of an appeal.

Direct examination requires painstaking preparation. Before trial, write out your questions and review them with your witnesses. Review exhibits and the witness’s deposition or statements with the witness, but do not use privileged documents directly. In preparing the witness to testify, bear in mind who the audience will be, and make suggestions on dress, style, eye contact, and demeanor accordingly. Any trial advocacy text will contain many suggestions for preparing lay witnesses to testify, but the three most important rules are to testify only about what you know, stop answering the question posed when there is an objection, and always to tell the truth.

Keep your questions short and simple and use plain language. Organize them in a logical fashion, and cover subjects that are consistent with your theory of your case. Although you may refer to notes during the examination, do not read your questions. For particularly important matters that you want to highlight, ask your witnesses to “tell the jury (or judge)” or “please explain to the jury (or judge).” Listen carefully to the witness’ answers for two reasons: (1) to determine if the question is answered adequately and (2) to appear interested to the trier of fact. When answers are inadequate or deviate from expectation, ask the witness to elaborate or explain, ask the question in a different way, or simply repeat the question.

Headlines to introduce a new subject help both the witness and the fact finder follow your line of questioning. To maintain the fact finder’s attention, vary the rhythm and pace of the examination. Visual aids are invaluable in holding the jury’s attention and making your case understandable. Liberal use of enlargements of exhibits and charts, whether on blow-up boards or through electronic trial presentation systems, is recommended. Exhibits should be shown to the jurors as soon as they are formally admitted if an enlargement is not available for them to view.

The use of exhibits requires careful preparation. All exhibits should be numbered, keyed to, and offered through witnesses qualified to testify about them. The witness need not have created the exhibit. The witness need only testify as to authenticity or accuracy. To establish a foundation for authenticity or accuracy, the witness should first testify as to the witness’ capacity or relationship to the exhibit—for example, custodian of business records or caseworker on a particular case. Exhibits should also be reviewed with opposing counsel before the hearing to identify objections and their grounds. In most courts, the rules will provide for the pretrial exchange of trial exhibits.

Objections and how you respond to them should be anticipated when planning your witness’ testimony. To avoid asking questions that draw objections and are sustained, be sure to lay a proper foundation showing that the witness is competent through experience, position, or relationship, to testify about the matter. Typically, objections raised go to the form of a question, the relevance of a question, or the competence of a witness to answer a question. Counsel should anticipate all of these objections and deal with them in a way that maintains her own credibility. This may mean rephrasing a question and asking it in proper form or arguing the relevance of a question within the framework of the issues of the case.

Generally, it is not permissible to ask leading questions of witnesses on direct. A leading question is one that supplies or suggests an answer. Leading questions are permissible, however, in limited circumstances: (1) on preliminary matters that are not reasonably in dispute; (2) when questioning very young or very old witnesses; (3) in examining a hostile witness; and (4) possibly with a forgetful witness.

Prepare your witness for cross-examination as well as for direct. The attorney offering direct examination should rehearse with an associate conducting a mock cross-examination to prepare the witness for the lines of inquiry that the witness is likely to receive on cross. Remind your witness that he is entitled to explain an answer when he feels that the question cannot truthfully be answered with a simple “yes” or “no,” even if pressed to do so by opposing counsel.

When possible, present witnesses who can demonstrate in a compelling and sympathetic way that the issues profoundly affect your client as a human being. Often the judge, jury, or hearing officer comes from a social and economic background far removed from the client’s. Thus, it is wise to have the clients and witnesses present live testimony in the courtroom and to bring them to the stand whenever possible. Dry legal issues are never as compelling as human experience presented through live testimony.

6.5.D.2. Cross-Examination

Before you cross-examine a witness, you must listen to and make notes about his testimony on direct. You must also decide whether to object when a rule of evidence is being violated. Objections and interruptions should be minimized in jury trials. This view seems paradoxical because the rules of evidence are more stringent and rigorous in a jury case. However, a jury that is trying to understand the issues and evidence is apt to resent objections. Thus, whenever possible, raise potential objections in a pretrial conference by a motion in limine and raise expected objections in the courtroom while the jury is absent. Before objecting in the presence of the jury, know how much or how little your judge wants to hear in support of the objection.

Keep in mind the three possible goals for cross-examination: (1) to obtain helpful information, (2) to discredit the witness or her testimony, and (3) to bolster the credibility of a third person who will then discredit the witness. In general, do not conduct cross-examination unless you expect to gain something from it. Indeed, sometimes the best course is to ask no questions at all.

Like direct examination, cross-examination requires complete familiarity with the subject matter on which the witness testifies. Proper preparation includes organizing exhibits, deposition transcripts, and documents in your trial notebook for easy reference and retrieval. The key to successful cross-examination is using impeachment material with familiarity and ease. This requires preparation and practice. Good cross-examination demands—in addition to thorough preparation—that you pay careful attention to the witness’ demeanor and testimony during both direct examination and cross. She may change her testimony from that given at a deposition or information in a document or reveal unexpected information that contradicts opposing counsel’s arguments.

On cross-examination, the questions should be brief but always leading, calling for yes or no answers. In essence, the attorney testifies through her questions. This requires ingenuity, clear perception, patience, and caution. Two common mistakes on cross-examination are asking a question to which the examiner does not know the answer and asking a witness to explain an answer. Counsel should know the answers to all questions in advance, from discovery or from the necessary implications of the direct examination. You may be tempted to ask for an explanation when the witness gives a surprising answer. Do not do so. The wiser response is to leave the answer alone and deal with it in rebuttal testimony or closing argument.

Another common mistake is asking additional questions after you get the answers you want. Stop after you obtain the information that you need to support the argument you plan to make in summation. Do not ask the witness to repeat testimony she gave on direct unless you believe that you can weaken it or are seeking to have her explain or elaborate on testimony that was favorable to your cause. Otherwise, do not ask her to explain answers; the less opportunity she has to educate the fact finder, the better. And never quarrel with the witness. Particularly in a jury trial, the jurors identify with the witnesses, not with you.

6.5.E. Jury Instructions

Before trial begins, counsel should draft proposed jury instructions that include citations to supporting authority. The instructions must be an accurate, clear, and plain statement of the legal and factual issues in the case. Instructions should cover all tried material issues supported by competent evidence./6/ They should relate the law to the evidence that has been introduced rather than merely state abstract propositions. Many jurisdictions have “model” or “approved” jury instructions that litigants are encouraged, if not required, to use. Sources of pattern jury instructions in the federal system include Federal Jury Practice and Instructions by Edward J. Devitt, Charles B. Blackmar, Michael A. Wolff, and Kevin F. O’Malley. In some circuits, model instructions have also been adopted by the court of appeals./7/

Under the Federal Rules of Civil Procedure, proposed instructions must be submitted “at the close of the evidence or at any earlier reasonable time that the court orders."/8/ After the close of evidence, parties may file requests for instruction on unanticipated issues and, with the court's permission, untimely requests for instructions on any issue./9/ According to the Advisory Committee notes, the most important consideration for the court in deciding whether to grant this permission is the "importance of the issue to the case," although the court should also consider why the request was not made earlier./10/ Some judges include in their trial order a requirement that the parties submit joint jury instructions to the extent possible, and then a list of disputed instructions.

The court is required to inform the parties of the instructions before instructing the jury and before closing arguments./11/ Once the judge has done so, the judge must give the parties an opportunity to object to the instructions.  /12/  Objections made at this point are regarded as timely./13/ Often, these objections and subsequent rulings are made at a “charge conference” outside the view of the jury.  Objections to an instruction or failure to make a requested instruction must be made distinctly and on the record./14/ Counsel should therefore ensure that the charge conference is conducted in the presence of a reporter or is otherwise recorded.  To preserve the objection for appeal, the objection should be phrased as an objection rather than a preference that another instruction be given. The objection should also clearly articulate how the instruction should be rephrased or should proffer an alternative instruction./15/

Most judges deliver their jury instructions after argument by counsel, but this is discretionary with the judge./16/ If the objection to an instruction is made at the charge conference, or at an appropriate time before the judge instructs the jury, the objection need not be reiterated after the instructions are given./17/ If such an opportunity to object was not provided, an objection must be made promptly after the party learns the instruction of concern will be given or preferred instruction refused./18/ To avoid waiver, it is best for the attorney to make a clear objection on the record to the proposed instruction or failure to adopt the attorney's preferred instruction as soon as the judge indicates that he or she intends to adopt the instruction. Failure to object to an instruction or refusal to offer your preferred instruction constitutes a waiver of such objections.

Parties may seek review of an instruction that is given, if the party properly objected to it./19/ The failure to provide an instruction is reviewable if the party requested the instruction and objected to the court's failure to include it, unless "the court rejected the request in a definitive ruling on the record."/20/ Generally, review of the language of an instruction is reviewed on an abuse of discretion standard while review of whether the instruction conforms to the law is conducted de novo. The appellate court will review the instructions as a whole and will set aside an error only if it could have affected the verdict reached.

If a party failed to preserve an objection to an instruction or failed to provide one, Rule 51(d)(2) permits appellate reversal only in cases of plain error.  Such plain error review is not permitted if the objection has been affirmatively waived./21/ Plain error review is patterned on a similar rule in the criminal context.  The Supreme Court has described such review as containing four elements: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings./22/ The burden of showing plain error is extremely high and effectively requires a showing of a miscarriage of justice.

_______________________________________________________________________________________________

1. E.g., Steven Lubet, Modern Trial Advocacy: Analysis and Practice (rev. 4th ed. 2013); Thomas A. Mauet, Trial Techniques and Trials (9th ed. 2013).

2. U.S. Const. amend. VII.

3. Fed. R. Civ. P. 38(b).

4. Id. 38(d).

5. The rule that peremptory challenges may not be used to exclude racial minorities was first established in the criminal context in Batson v. Kentucky, 476 U.S. 79 (1986). It was subsequently extended to civil litigation in Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).

6. See, e.g., Reimer v. City of Crookston, 421 F.3d 673, 677 (8th Cir. 2005).

7. The Georgetown Law School library is a good source of collected information on jury verdicts and instructions. See http://www.ll.georgetown.edu/guides/jury.cfm.

8. Fed. R. Civ. P. 51(a)(1).

9. Id. 51(a)(2).

10. Id. 51 advisory committee's notes (2003). 

11. Fed. R. Civ. P. 51(b)(1)

12. Id. 51(b)(2).  

13. Id. 51(c)(1)

14. Id.

15. Estate of Keatinge v. Biddle, 316 F.3d 7, 15 (1st Cir. 2002). For additional guidance, see 9 James Wm. Moore et al., Moore's Federal Practice para. 51.32 (2010).

16. Fed. R. Civ. P. 51(b)(3).

17. Id.  51(c)(2)(A), (d)(1).

18Id.  51(c)(2)(B).

19. Id.  51(d)(1)(A)

20. Id. 51(d)(1)(B).  For a rationale of this provision, see the Rule 51 advisory committee's notes (2003).

21. Goulet v. New Penn Motor Express, Inc., 512 F.3d 34, 44 (1st Cir. 2008) (counsel waived objection to instruction by stating "I'm satisfied" when asked for response to instruction).  

22. Johnson v. United States, 520 U.S. 461, 469-70 (1997).

Updated 2013 by Laurence M. (Lonny) Rose

6.6 Expert Testimony

Updated 2014 by Alice Nelson

When planning a case, attorneys should determine early on whether an expert will be needed. Generally, an expert is helpful or even necessary when the facts and issues of the case are not easily understandable. For example, most cases under the Individuals with Disabilities Education Act need one or more experts to explain the child's progress or lack thereof or the behavioral interventions that should have been used by school personnel./1/ Experts are used in a wide variety of circumstances./2/

Rule 26 of the Federal Rules of Civil Procedure identifies two types of experts: trial experts (Fed. R. Civ. P. 26(a)(2)) and consultant experts, those employed but not expected to testify (id. 26(a)(4)(D)). Trial experts are discussed below. Consultant experts are not discussed further here.

As with every other aspect of trial advocacy, careful preparation is required. The attorney must try to learn as much as the expert knows in the subject matter of the expert's opinion. The attorney's job is to make sure that the expert's report and testimony are in language that is understandable to the trier of fact. The language may be a bit more sophisticated if the trier of fact is a district court. The expert must understand the theory of the case and how the expert's opinion fits in. Consider visual aids including demonstrative evidence that might assist./3/

6.6.A. Daubert

Daubert v. Merrill Dow Pharmaceuticals began a revolution in federal expert witness practice by greatly expanding the power of federal courts to exclude or limit expert testimony./4/ Before Daubert, trial judges largely confined admissibility determinations to qualifications. The proponent bore the burden to demonstrate that the expert was qualified through education, knowledge, experience, skill, or training to render an expert opinion. Daubert expanded the "gatekeeping function."/5/ It held that, in addition to determining whether an expert is qualified to testify on the matters proposed to be addressed, a court must determine whether the expert's methodology is sufficiently reliable to support the proposed opinions. The court must further decide whether the expert's proposed testimony will, through the application of scientific, technical, or specialized expertise, assist the trier of fact in understanding the evidence or determining a fact at issue./6/ Daubert arose from a dispute over scientific expert testimony, and Kumho Tire Company v. Carmichael subsequently expanded its holding to the admissibility of all nonscientific expert testimony./7/ In 2000 Federal Rule of Evidence 702 was revised essentially to codify Daubert:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case./8/

Before admitting expert testimony, a district court must determine whether the expert is qualified by knowledge, skill, experience, training, or education to render an opinion, and it must satisfy itself that the proposed expert testimony is both reliable and relevant, in that it will assist the trier of fact, before permitting the jury to assess such testimony./9/ A district court's decision as to the admissibility of the evidence, whether it is admitted or not, is reviewed under the "abuse of discretion" standard./10/

6.6.B. Qualifications

Qualification as an expert does not require a scientific background. Expert status may be based on extensive experience, knowledge, skill, or on-the-job training, even in the absence of formal scientific education./11/ Moreover, "it is an abuse of discretion for a trial court to exclude expert testimony solely on the ground that the witness is not qualified to render an opinion because the witness lacks expertise in specialized areas that are directly pertinent to the issues in question, if the witness has educational and experiential qualifications in a general field related to the subject matter of the issue in question."/12/ Testimony beyond the expert's scope of expertise should be excluded./13/ Disputes over the strength of qualifications and credentials ordinarily go to the weight to be accorded to expert testimony and not to its admissibility./14/ As the Court in Daubert noted, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."/15/

6.6.C. Reliability Principles and Methods

Daubert requires an inquiry into reliability "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."/16/ Accordingly, Daubert directed that trial courts consider as part of the reliability inquiry for scientific expertise: (1) whether the expert's theory can and has been tested;/17/ (2) whether the theory has been subjected to peer review and publication;/18/ (3) the known or potential rate of error of the particular scientific technique;/19/ and (4) whether the technique is generally accepted in the scientific community./20/ Kumho Tire applied the same criteria to assess the reliability of experience with respect to nonscientific expert testimony./21/ The specified factors are guideposts; there is no requirement that a district court consider each of them or that an expert's testimony must satisfy each of the listed factors./22/

Daubert noted that its required reliability inquiry should be "a flexible one."/23/ Although Daubert emphasized that "[t]he focus, of course, must be solely on principles and methodology, not on the conclusions that they generate,"/24/ General Electric Company v. Joiner insisted that "conclusions and methodology are not entirely distinct,"/25/ thereby expanding the trial court's authority to exclude proposed testimony as unreliable.

6.6.D. The Fit Between Methods and Conclusions

Joiner expanded the reliability inquiry to include an assessment of the fit between each of the experts' specific opinions and the data, principles, and methods from which it is purportedly derived. The Court reasoned that even when an expert uses reliable methods and data, "[a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered" and that "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert."/26/

In the wake of Joiner, several Section 1983 claims dependent on expert testimony foundered for lack of sufficient fit between the expert's opinions and underlying data./27/ However, when fit can be shown, the court should admit the expert's opinion, leaving for the jury the question of whether to credit the testimony./28/ The Advisory Committee Notes to amended Rule 702 caution that "the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system./29/

Expert testimony can be crucial to proving causation, and it is particularly likely to trigger reliability and fit objections./30/ To qualify as reliable, causation testimony need not negate every alternative hypothesis./31/

6.6.E. Reliance upon Other Experts

Experts routinely rely on the work of others; that reliance is not objectionable as hearsay./32/ Federal Rule of Evidence 703 specifically provides: "An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed." If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. An expert may rely upon reports of others to formulate his opinion, and such reliance is often an indicia of reliability./33/ Similarly, consultation with other experts can be a reliable and appropriate methodology under Daubert./34/

Although experts are entitled to base their opinions on facts perceived by or made known to them, testifying experts may be excluded from the courtroom during the testimony of other witnesses under Rule 615 unless their presence is "essential."/35/ Generally, if the expert has no firsthand knowledge of the facts, the expert is permitted to remain in the courtroom./36/

6.6.F. Will Expert Testimony Assist the Trier of Fact?

Federal Rule of Evidence 702 requires that admissible expert testimony assist the trier of fact. Expert testimony only assists the trier of fact when it addresses "beyond the understanding of the average person."/37/ It does not do so when it addresses only matters that counsel can present through closing argument./38/ Similarly, expert testimony will not assist the trier of fact by explaining the governing law; that is the responsibility of the court./39/ Further, Daubert explained the important interrelationship between Rule 702 and Rule 403: "Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses."/40/

6.6.G. Expert Reports

Rule 26(a)(2)(B)(i) of the Federal Rules of Civil Procedure requires parties to disclose the names of their retained trial experts before trial and to give the opposing party a written report, prepared and signed by the expert witness, that must contain "a complete statement of all opinions the witness will express and the basis and reasons for them." Parties must also provide "the facts or data considered by the witness in forming them," exhibits, the expert's qualifications (including publications) and compensation, and a listing of expert testimony during the preceding four years./41/ The report should be sufficiently comprehensive to establish admissibility under all of the Rule 702 criteria./42/

Over the years, the rules have changed regarding the disclosure of communications between counsel and the expert. In 2010, Rule 26 was amended to provide that such communications are not discoverable and that draft reports are protected from disclosure. Not protected are communications regarding the compensation of the expert, the identification of the facts or data that counsel provided and those that the expert considered, and the assumptions that the attorney provided and that the expert relied on in forming the opinions./43/

6.6.H. Determining Admissibility of Expert Testimony

The burden of establishing the admissibility of expert testimony rests with its proponent./44/ An opposing party can challenge the admissibility of all or part of proposed expert testimony before trial through a motion in limine or through voir dire when the expert is tendered at trial. The volume of reported cases suggests that many, if not most, objections now arise pretrial in motions in limine. Accordingly, the proponent should anticipate and prepare from the outset to overcome a motion in limine, beginning with the preparation of the expert's report.

In limine motions generally follow an expert's deposition. Rule 26(b)(4)(A) permits the expert's deposition but only after the report is provided./45/  A trial court has discretion to grant a motion in limine without first conducting an evidentiary hearing if the expert's report fails to establish one of the elements required for admissibility. Although courts frequently hold evidentiary hearings to resolve in limine motions, often referred to as Daubert hearings, the determination of whether to conduct a Daubert hearing is committed to the discretion of the trial court, and a trial court can grant or exclude an expert's testimony without first conducting a Daubert hearing./46/ As with all evidentiary objections, Daubert objections to the admissibility of an expert's testimony can be waived by failing to timely raise them in the trial court.

__________________________________________________________________________________________________

1. Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1401 et seq. For an example of how an expert might be used in an IDEA case, see G.S. v. Cranbury Township Board of Education, 450 F. App'x 197, 200 (3d Cir. 2011).

2. See, e.g., Air Wisconsin Airlines Corporation v. Hoeper, 134 S. Ct. 852 (2014) (behavioral expert); Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586, 2593 (2013) (property experts); PPL Corporation v. C.I.R., 133 S. Ct. 1897, 1903 (2013) (tax expert); Comcast Corporation v. Behrend, 133 S. Ct. 1426 (2013) (damages expert in class action context).

3. Similarly, preparation for cross-examination requires thorough familiarity with the subject matter and relevant literature, especially anything the expert has written. Review previous testimony and reports by the expert. Consider impeachment by using scientific treatises. See W.E. Shipley, Use of Medical or Other Scientific Treatises in Cross-Examination of Expert Witnesses, 60 A.L.R.2d 77 (2011).

4. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

5. Id. at 589 n.7.

6. The Federal Judicial Center's Reference Manual on Scientific Evidence (3d ed. 2011) is a useful guide to many of these issues.

7. Kumho Tire Company v. Carmichael, 526 U.S. 137 (1999).

8. See generally, Fed. R. Evid. 702 Committee Notes on Rules -- 2000 Amendment.

9. Conroy v. Vilsack, 707 F.3d 1163 (10th Cir. 2013).

10. General Electric Company v. Joiner, 522 U.S. 136, 141 (1997) ("abuse of discretion" standard); 4 Weinstein's Federal Evidence § 702-02 [4][5] (2013). However, as in other areas of the law, if the district court applied the incorrect legal standard, then the review is de novo. United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011).

11. See, e.g., Quiet Technology DC-8 Incorporated v. Hurel-Dubois UK Limited, 326 F.3d 1333, 134243 (11th Cir. 2003) (expert who had worked in field for nearly twenty years, had worked with experts in field, and had extensive on-the-job training was qualified; and distinguishing between reliability and qualifications); see also In re Flashcom Incorporated, 503 B.R. 99, 124 (C.D. Cal. 2013) (Rule 702 "contemplates a broad conception of expert qualifications.").

12. 4 Weinstein's Federal Evidence § 702.04[1][a].

13. Levin v. Dalva Brothers, Inc., 459 F.3d 68, 7879 (1st Cir. 2006).

14. See Jahn v. Equine Services, PSC, 233 F.3d 382, 393 n.8 (6th Cir. 2000), (citing McCullock v. H.B. Fuller Company, 61 F.3d 1038, 1045 (2d Cir. 1995)). See also Arkansas Game and Fish Commission v. United States, 736 F.3d 1364, 1378 (Fed. Cir. 2013); Harris v. Gourley, No. 1:10-CV-99 (M.D. Ga. March 27, 2013).

15. Daubert, 509 U.S. at 596.

16. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).

17. Daubert, 509 U.S. at 593.

18. Id. at 59394.

19. Id. at 594.

20. Id.; 4 Weinstein's Federal Evidence § 702.05[2][c].

21. Kumho Tire Co., 526 U.S. at 152.

22. See United States v. Conn, 297 F.3d 548, 556 (7th Cir. 2002) ("Using the Daubert factors as a point of departure, the district court is free to fashion an approach more precisely tailored to an evaluation of the particular evidentiary submission before it."). For a recent application, see Peoples State Bank v. Stifel, Nicolaus and Company, 2013 WL 1024917 (S.D. Ind. March 14, 2013).

23. Daubert, 509 U.S. at 594.

24. Id. at 595.

25. Joiner, 522 U.S. at 146.

26. Id.

27. See, e.g., Nimely v. City of New York, 414 F.3d 381, 399 (2d Cir. 2005) (abuse of discretion to admit expert testimony of "misperception hypothesis" as explanation for variance between police officer perception and physical evidence in excessive force wrongful shooting claim); Burleson v. Texas Department of Criminal Justice, 393 F.3d 577 (5th Cir. 2004) (expert witness properly excluded in Eighth Amendment claim that defendants exposed plaintiffs to hazardous conditions as prison welder causing him to develop radiation-induced cancer; no reliable methodology supported expert's claim of harmful exposure level); McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004) (plaintiff's expert witness properly excluded in claim by inmate that 4-hour delay in treating spinal epidural abscess caused or worsened resulting paralysis since studies only explored effects of 48-hour or longer delays; expert's causation conclusion was therefore unreliable assertion). See also Fitzgerald v. Corrections Corporation of America, 403 F.3d 1134 (10th Cir. 2005) (holding inadmissible affidavit submitted by defense expert physician in support of summary judgment attesting to quality care offered by defendant physician; affidavit offered no factual foundation for its conclusion).

28. See Smith v. Ford Motor Company, 215 F.3d 713, 718 (7th Cir. 2000) ("The soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis are factual matters to be determined by the trier of fact ...."). The proponent of the expert testimony need not demonstrate that the testimony is correctonly that the expert is qualified and that his testimony is based on reliable methodology. "[I]t is not the role of the district court to make ultimate conclusions as to the persuasiveness of the proffered evidence." Quiet Technology DC-8, 326 F.3d at 1341. "[A] district court's gatekeeper role under Daubert 'is not intended to supplant the adversary system or the role of the jury.'" Id. (quoting Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001)). See also Fed. R. Evid. 702 Committee Notes on Rules -- 2000 Amendments ("The emphasis in the amendment on 'sufficient facts or data' is not intended to authorize a trial court to exclude an expert's testimony on the ground that the court believes one version of the facts and not the other.").

29. Fed. R. Evid. 702 Committee Notes on Rules -- 2000 Amendments (quoting United States v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th Cir. 1996)).

30. Compare Brown v. Illinois Central Railroad Company, 705 F.3d 531, 53538 (5th Cir. 2013) (expert failed to articulate reliable methodology), with In re Flonase Antitrust Litigation, 907 F. Supp. 2d 637, 645  (E.D. Pa. 2012) (expert testimony admissible because, inter alia, it is directly relevant to central questions of trial).

31. See Jahn, 233 F.3d at 390 ("In order to be admissible on the issue of causation, an expert's testimony need not eliminate all other possible causes of the injury."). Compare Orthoflex Incorporated v. ThermoTek Incorporated, 986 F. Supp. 2d 776 (N.D. Tex. 2013) (expert failure to rule out alternative causes of product failures did not render his opinions regarding device's defective design unreliable), with Casey v. Geek Squad® Subsidiary Best Buy Stores Limited Partnership, 823 F. Supp. 2d 334, 34346 (D. Md. 2011) (expert's opinions were unreliable; opinions not based on sufficient facts or data, without any testing; expert failed to rule out alternative hypotheses).

32. Tassi v. Holder, 660 F.3d 710, 721 (4th Cir. 2011) ("[A]n expert is entitled to rely on factual underpinningsincluding those based on hearsaythat are 'of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.'" (quoting Fed. R. Evid. 703)). See also Strauss v. Credit Lyonnais S.A., 925 F. Supp. 2d 414, 43940 (E.D.N.Y. 2013) (although expert may rely upon inadmissible hearsay, expert must form own opinions by applying experience and reliable methodology to inadmissible materials; admitting testimony because experts brought to bear expertise and sources used were reasonably relied upon by experts in field). But see Fed. R. Evid. 703 ("Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.").

33. Johnson v. Samsung Electronics America Incorporated, 377 F.R.D. 161, 16566 (E.D. La. 2011) (admitting testimony, relying in part on Fed. R. Evid. 702 Committee Notes on Rules -- 2000 Amendment).

34. Baldwin Graphic Systems, Incorporated v. Siebert, Incorporated, No. 03 C 7713 (N.D. Ill. Dec. 21, 2005) ("Rule 702 does not prohibit consultation, ban the acquisition of knowledge from other sources, or disqualify any witness who consults with or learns from others.").

35. Fed. R. Evid. 615(3).

36. See, e.g., Malek v. Federal Insurance Company, 994 F.2d 49 (2d Cir. 1993).

37. 4 Weinstein's Federal Evidence § 702.03[1].

38. United States v. Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004) (en banc) (citing 4 Weinstein's Federal Evidence § 702.03[2][a]). For a recent example, see Worley v. State Farm Mutual Automobile Insurance Company, 2013 WL 6478425 (M.D. Fla. Dec. 10, 2013).

39. "Each courtroom comes equipped with a 'legal expert,' called a judge, and it is his or her province alone to instruct the jury on the relevant legal standards." Burkart v. Washington Metropolitan Area Transit Authority, 112 F.3d 1207, 1213 (D.C. Cir. 1997) (reversing Americans with Disabilities Act and Section 504 judgment for deaf plaintff based on erroneous admission of expert testimony respecting requirements governing police encounters with deaf individuals). See also Roundy's Incorporated v. National Labor Relations Board, 674 F.3d 638 (7th Cir. 2012) (affirming exclusion of expert testimony on legalities of property law); Lakeside Feeders Incorporated v. Producers Livestock Marketing Association, 666 F.3d 1099, 1111 (8th cir. 2012) (affirming exclusion of expert testimony as legal conclusion that did not assist trier of fact).

40. Daubert, 504 U.S. at 595. For a recent example of exclusion under Rule 403, see J.T. Colby and Company v. Apple Incorporated, No. 11 Civ. 4060 (S.D.N.Y. May 8, 2013).

41. Fed. R. Civ. P. 26(a)(2)(B).

42. See, e.g., Moore v. International Paint L.L.C., 547 F. App'x 513 (5th Cir. 2013) (excluding expert report, inter alia, because it did not meet Rule 702 standards).

43. Fed. R. Civ. P. 26(a)(2)(B).

44. Daubert, 509 U.S. at 592 n.10.

45. Fed. R. Civ. P. 26(b)(4)(A).

46. Broussard v. Maples, 535 F. App'x 825, 82728 (11th Cir. 2013) (district court not required to hold hearing). See also Estate of Barabin v. Asten Johnson Incorporated, 740 F.3d 457 (9th Cir. 2014) (hearings are commonly used but not required).

Updated 2014 by Alice Nelson

6.7 Appellate Practice

Updated 2013 by Gill Deford

Appellate practice raises some questions similar to those presented in the district court, but it also introduces new issues and procedures. Note that it contains argument both over whether the lower court’s order was appealable and substantive argument on the merits.

6.7.A. Issues and Procedures

Concerns about whether to appeal often mirror the questions raised when litigation is first contemplated, while the process of appealing differs greatly from district court litigation. This section focuses primarily on the procedural aspects of an appeal, with some attention paid to the internal inquiry regarding the strategy of appealing. The substantive aspects of brief writing and oral argument are not discussed./1/

For the most part, the process of taking an appeal is thoroughly set forth in the Federal Rules of Appellate Procedure, in the local rules which each circuit issues in conjunction with the federal rules, and in the internal operating procedures or other explanatory manuals and handbooks which the circuits also often publish. While this section cites some circuit rules as examples, practitioners should not assume that their circuit has a comparable rule. Because failure to comply with the circuit rules can result in dismissal of the appeal, practitioners are urged to review their circuit’s local rules carefully before embarking on an appeal./2/

6.7.B. The Right to Appeal

The basic rule is that “[t]he courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts ....”/3/ The Supreme Court interprets this “to mean that an appeal ordinarily will not lie until after final judgment has been entered in a case.”/4/ This final judgment rule provides that “a decision is not final, ordinarily, unless it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.”/5/ In practice, whether a judgment is indeed final is not always intuitive and should be researched. For example, the Supreme Court has ruled that a judgment is final even though a request for attorney fees is still pending./6/ When a matter remains pending despite the entry of a judgment, research the finality issue carefully and quickly.

In the vast majority of cases, the appellant did not prevail below and has standing to challenge that adverse decision.  However, the Supreme Court has concluded that prevailing parties may, under certain circumstances, possess the "personal stake" needed for Article III standing to appeal./7/  In Camreta v. Greene, the Supreme Court recently held that a state social worker had standing to challenge a lower court decision that his interviewing a minor without a warrant, exigent circumstance or parental consent violated the Constitution, but they were immune because the law was insufficiently clear to put them on notice of the illegality of their conduct./8/ The constitutional decision, if unchallenged, would require the social workers in the future either to modify their practice or to risk liability, thereby establishing a prospective stake in the outcome of the appeal.

Federal Rule of Civil Procedure 54(b) sets forth the final judgment rule in multi-claim and multiparty cases. Under that rule, the court may “direct entry of a final judgment” on fewer than all the claims or as to fewer than all the parties “if the court expressly determines that there is no just reason for delay.” The rule speaks to the disposition of claims, rather than of legal theories or requests for relief./9/ As a result, if particular claims are dismissed in a multi-claim or multiparty case, consider whether to seek a Rule 54(b) order.

Statutory and common-law exceptions to the final judgment rule allow interlocutory appeals in specific instances. For legal aid attorneys, the most important exception permits appeals from “[i]nterlocutory orders of the district courts . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions . . . .”/10/ Thus, any action that a district court takes, or declines to take, involving a request for or implementation of a preliminary or permanent injunction arguably establishes an automatic right to appeal, but this exception to the final judgment rule is narrow and strictly construed./11/

Two other important provisions govern interlocutory appeals, but their applicability rests entirely in the courts’ discretion. First, upon the district judge’s written statement that an otherwise unappealable order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation,” a request to appeal may be made to the court of appeals within ten days of the entry of the order./12/ The court of appeals then finally decides whether to allow the appeal./13/ Both courts act within their discretion in making the determination./14/

Second, the Federal Rules of Civil Procedure vest in the courts of appeals the discretion to allow an appeal from an order granting or denying a motion for class certification if the request is made within ten days of the order’s entry./15/ The courts of appeals have established a variety of standards for exercising this discretion. These standards include whether the decision below was manifestly in error, whether there is a need to clarify a fundamental issue of law which otherwise might not be considered, and whether the ruling on class certification might represent a death knell for either party independent of the merits./16/ They all agree that the right to appeal should be granted only sparingly. The rule also expressly states that allowance of the appeal does not act to stay proceedings below./17/

In addition, the “collateral order doctrine,” a common-law doctrine, interprets “final decision” to include some orders that do not end the litigation. To be appealable, an order within this “small category” must be “conclusive, . . . resolve important questions separate from the merits, and . . . [be] effectively unreviewable on appeal from the final judgment in the underlying action.”/18/ The standard is extremely difficult to meet; a practitioner contemplating this approach should do considerable research on the intricacies of the doctrine.

6.7.C. Whether to Appeal

Deciding whether to appeal an adverse decision involves balancing a host of potentially competing factors. Obviously, the clients’ needs and desires are at the top of the list.

Another crucial consideration is the likelihood of success. This requires a careful review of the merits of the issue, the strength of the district judge’s findings and the validity of her conclusions, the standard of review to be applied, and the composition and reputation of the particular court of appeals. For instance, while an adverse decision on a close legal question subject to de novo review on appeal might be appropriate for an appeal, the denial of a preliminary injunction because the plaintiffs had not demonstrated irreparable harm would require the more demanding showing that the district court had abused its discretion, rendering the appeal considerably more problematic. And, of course, attorneys should be especially careful not to file a frivolous appeal, because the courts of appeals can impose sanctions./19/

Furthermore, practitioners should familiarize themselves with the federal appellate court that would hear the appeal. This involves knowing the backgrounds, reputations, and experience of both active and senior judges and of calculating what the chances are for a “good” or “bad” panel./20/ Information about the court’s membership should be part of the decision making in every instance./21/

At the same time, the possibility of success on the appeal has to be balanced against the impact of appealing or not appealing. For instance, if the district court rules adversely on the merits while certifying a class, certification may counsel in favor of an appeal as there may be little to lose. The more common concern, however, arises when the plaintiffs’ loss at the district court level affects only themselves, while an unsuccessful appeal would have a far broader impact as it would create binding precedent in the circuit. This is of particular importance when other public interest advocates in the circuit have filed or are about to file litigation on the same issue that may have a better chance of success in the district court.

Several other factors worthy of consideration include:

  • Are there non-substantive aspects of the decision that favor or disfavor an appeal (e.g., a good ruling on standing or mootness that might be threatened by a cross-appeal if the adverse decision on the merits is appealed)?

  • Might an appeal result in a split of authority in the circuits, thereby increasing the risk of the issue going to the Supreme Court?

  • Does the practitioner’s office have the time, resources, and skills to devote to an appeal? and

  • Is the decision to be appealed from likely to be published (and therefore more likely to have an impact in some way)?

With at least one significant difference, the decision to appeal is similar to the decision to bring the litigation in the first place. While a decision not to bring the litigation can be changed (subject to the statute of limitations), the decision not to appeal concludes that issue for those plaintiffs. Taking that step is sometimes difficult, but cutting losses to prevent a worse result is often the smartest move a practitioner may make.

6.7.D. How to Initiate an Appeal

The first step in an appeal is filing a notice of appeal. This is a one-sentence statement indicating who is appealing, from which order or judgment (including the date) the appeal is taken, and to which court./22/ When you represent more than one party, you need not name all the plaintiffs who are appealing./23/ Nevertheless, the safer approach is to specify all of them./24/ The notice has the district court caption and is filed in the district court. The clerk then serves copies on the other parties’ counsel./25/ If the appeal is from a final judgment, but the intention is to appeal orders issued during the course of the litigation, you need not specify each order to be appealed; the judgment encompasses all the orders entered.

Since the filing of the notice of appeal is jurisdictional, timely filing is critical./26/ In civil cases not involving the federal government, the notice must be filed within thirty days after entry of the judgment or order from which a party is appealing./27/ But,“[w]hen the United States or its officer or agency is a party,” the time period for filing the notice is sixty days after entry of judgment for “any party.”/28/ A notice of appeal filed before the entry of judgment or order appealed from, but after it has been announced, is treated as being filed on the date of that entry./29/ Similarly, a notice of appeal filed after a judgment is announced or entered, but before disposition of a Rule 59(e) motion for reconsideration, or other such post-judgment motions, is effective when the motion is resolved./30/ The filing of a timely notice of appeal by any party extends the time for another party to file a cross-appeal to the later of fourteen days from the date that the first notice of appeal was filed or to the deadline that was originally applicable./31/

A party may request that the district court extend the time to file the notice of appeal by filing a motion within thirty days after the deadline for filing a notice of appeal./32/ The decision to extend the time for appeal lies within the district court’s discretion./33/ The party making the request must show “excusable neglect or good cause,” regardless of whether the motion is filed during the original time to appeal or within the thirty days thereafter./34/

At or shortly after the filing of the notice of appeal, the docketing fee must be paid to the district court clerk,/35/ who transfers payment to the court of appeals. The fee for filing an appeal is $455./36/ To appeal in forma pauperis, a party must first file a motion with the district court./37/ If that motion is granted, the party may proceed without paying fees./38/ But if the motion is denied by the district court, the party may then file a motion with the court of appeals./39/ A party that had been allowed to proceed in forma pauperis in the district court is entitled automatically to proceed in forma pauperis in the court of appeals, unless the district court determines to the contrary./40/

After the notice of appeal and the docketing fee are received by the clerk of the court of appeals, the clerk usually issues a standard order directing the parties to take certain actions within set time frames. Without an order stating otherwise, however, counsel for the appellant will have fourteen days to order a transcript of relevant court proceedings from the court reporter (or to certify that no transcript will be ordered)./41/ The details of how to proceed from that point on are either in an order issued from the court of appeals’ clerk’s office, or in the local circuit rules that supplement the Federal Rules of Appellate Procedure and that describe the somewhat different procedures between the circuits. Although Federal Rule of Appellate Procedure 31(a)(1) sets out the timing of the filing of the briefs, the court clerks usually issue orders establishing the briefing schedule. In an effort to avoid the oft-endless round of requests for extensions, the Second Circuit has implemented a novel procedure whereby the appellant and the appellee each choose the date for filing their briefs within a 91-day window,/42/ but the court has made clear that, under that system, extensions will only rarely be granted and the appellant's failure to file on time may well result in dismissal of the appeal./43/ Furthermore, while the federal rules set out the standards for determining whether oral argument will be held,/44/ the appellate courts take different practical approaches to the issue. The First Circuit suggests that counsel include a statement in the brief regarding their position on the need for oral argument,/45/ while the Second Circuit, which presumes that there will be oral argument, notifies counsel if it tentatively decides not to hold oral argument and provides an opportunity to explain why it should be held./46/

Attorneys should review their circuit’s local rules to determine their obligations for this and other facets of the appeal.

6.7.E. Motion Practice in the Courts of Appeals

Most appeals are resolved after full briefing and oral argument, with each court having different policies and procedures for those activities. The content and form of the briefs and of the appendix to the briefs are set out in detail in Federal Rules of Appellate Procedure 28, 30, and 32, and local rules of court. Because local practice often differs on these important aspects of appellate practice, they are not discussed here./47/ Counsel must thoroughly familiarize themselves with these practices. In addition to entertaining plenary briefing and argument, the appellate courts also consider numerous motions, which can be either procedural or substantive and which, in some instances, are dispositive. A brief discussion of some of the more important motions follows.

To obtain a stay or injunction pending appeal, a party must normally first move for that relief in the district court, but, when that is “impracticable,” the motion may be made originally in the court of appeals./48/ The Supreme Court has recently held that that the standard is the same as for a preliminary injunction, and and noted that the "first two factors of the traditional standard are the most critical."/49/ Opposing a stay (in either court) can make the difference between immediate relief for the plaintiffs and a one- to two-year wait while the appeal winds its way through the system and the lower court proceeds to the merits. If the stay is granted, however, consideration should be given to moving for an expedited appeal, which would speed up the appellate process, at least through the point of oral argument. Similarly, although obtaining an injunction pending appeal is particularly difficult, combining it with a motion for an expedited appeal is probably a good tactic because the court may be willing to take that action in lieu of the more extreme one of issuing an injunction pending appeal./50/

Another motion to consider is one for summary disposition, that is, for affirmance or reversal without plenary review. This is especially useful if the court entertains it before full briefing and views the procedure positively./51/ Although the standard is invariably strict and such a motion is rarely granted (especially summary reversal), summary disposition has the advantage of resolving the appeal quickly and with considerably less work and expense./52/ Also, because the motion is based on a strict standard, which may not require a careful inquiry into the merits and usually does not result in more than a pro forma, unpublished disposition stating that the standard has not been met, there is little risk involved./53/ Losing the motion should not have any impact on the ultimate outcome. If a reasonable chance of success is seen, a motion for summary disposition has the additional advantage of having two bites at the apple. Needless to say, however, practitioners should not abuse this approach but reserve it for the truly deserving case.

6.7.F. Post-Decision Options

First, the losing party can seek review by the panel that ruled against it. A petition for panel rehearing requires a statement of “each point of law or fact that the petitioner believes that the court has overlooked or misapprehended ….”/54/ In effect, a petition for panel rehearing is a contention that the court simply misunderstood some critical legal or factual aspect of the case. Although these are only rarely granted, and are discouraged by some circuits with sanctions attached to frivolous petitions,/55/ this is the most likely avenue for converting a loss into victory. Granting the petition can result in a revised disposition, reargument, or “any other appropriate order.”/56/

Instead of, or in addition to a petition for panel rehearing, the losing party may request rehearing en banc (sometimes spelled in banc), which is intended to secure the uniformity of circuit decisions or which “involves a question of exceptional importance.”/57/ The rule expressly states that rehearing en banc is “not favored.”/58/ Some circuits virtually never grant rehearings en banc, while it occurs with some regularity for others. Even in those circuits where rehearings are occasionally granted, however, as a statistical matter, a rehearing en banc request is highly unlikely to be successful./59/

The petitions for rehearing and for rehearing en banc may be filed in one document. Each is due 14 days after entry of judgment, except that the time is extended to 45 days in a civil case in which the United States is a party./60/ The page limitation for each is 15 pages, and that number is not increased by filing both types of petition (either as one document or as two)./61/ For both types of petition, no response should be filed unless the court so requests./62/

A losing party also has the right to petition for a writ of certiorari in the United States Supreme Court./63/ This right may be exercised with or without a petition for rehearing and/or rehearing en banc having been filed. The petition for certiorari must be filed within 90 days after entry of the judgment in the court of appeals or denial of the petition for rehearing in that court./64/ The brief in opposition, which is not mandatory, must be filed within 30 days after the case is put on the Supreme Court’s docket./65/ Jurisdictional challenges to the petition must be included in the brief in opposition rather than filed as a separate motion to dismiss./66/ Legal aid attorneys contemplating filing a petition for certiorari should discuss this matter with as many other seasoned practitioners as possible so that they, and their clients, are fully informed, from a variety of perspectives, as to whether filing such a petition is appropriate under the circumstances.

____________________________________________________________________________________


1. Further guidance on these issues is available in many texts, including Carole Berry, Effective Appellate Advocacy: Brief Writing and Oral Argument (West 4th ed. 2010); Bradley G. Clary et al., Advocacy on Appeal (West 3d ed. 2008); Michael R. Fontham et al., Persuasive Written and Oral Advocacy: In Trial and Appellate Courts (Aspen 2d ed. 2007).

2. See, e.g., In re O’Brien, 312 F.3d 1135, 1137 (9th Cir. 2002) (dismissal of appeal because brief and excerpts of record failed to comply with federal and circuit rules).

3. 28 U.S.C. § 1291 .

4. Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 203 (1999) (citations omitted).

5. Id. at 204 (internal quotation marks and citations omitted).

6. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199-202 (1988).

7. Camreta v. Greene, 131 S. Ct. 2020, 2028-30 (2011).

8. Id. at 2031-32.

9. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742-43 (1976).

1028 U.S.C. § 1292(a)(1) .

11. See, e.g., Gardner v. Westinghouse Broad. Co., 437 U.S. 478, 480 (1978).

12. 28 U.S.C. § 1292(b) .

13. Id.

14. Swint v. Chambers County Comm’r, 514 U.S. 35, 47 (1995).

15. Fed. R. Civ. P. 23(f).

16. See In re Delta Air Lines, 310 F.3d 953, 959 (6th Cir. 2002) (reviewing and summarizing decisions from several other circuits on the appropriate standard), cert. denied, 539 U.S. 904 (2003); In re Lorazepam & Clorazepate Antitrust Litig., 289 F. 3d 98, 102-04 (D.C. Cir. 2002) (same).

17. Fed. R. Civ. P. 23(f).

18. Swint, 514 U.S. at 42. See also Mohawk Industries v. Carpenter, 558 U.S. 100 (2009) (orders to disclose documents asserted to be protected by the attorney-client privilege do not qualify for immediate appeal under the collateral order doctrine); Osborn v. Haley, 549 U.S. 225 (2007) (order denying Westfall Act certification and substitution); Will v. Hallock, 546 U.S. 345 (2006) (Federal Tort Claims Act’s judgment bar); Cunningham v. Hamilton Co., 527 U.S. 198 (1999) (sanctions against attorney for failing to comply with discovery order); Digital Equip. Corp. v. Desktop Direct Inc., 511 U.S. 863, 878-79 (1994) (refusal to enforce settlement agreement); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy Inc., 506 U.S. 139, 143-44 (1993) (Eleventh Amendment immunity); Van Cauwenberghe v. Biard, 486 U.S. 517, 530-31 (1988) (forum non conveniens dismissal); Richardson-Merrill Inc. v. Koller, 472 U.S. 424 (1985) (attorney disqualification).

19. Fed. R. App. P. 38. See, e.g., Ingle v. Circuit City, 408 F.3d 592, 595-96 (9th Cir. 2005).

20. While most appellate courts regularly invite judges from other appellate courts and from the district courts to sit by designation on their panels, the D.C. Circuit currently uses only its own appeals court judges. This kind of information can be useful in gauging the odds of a sympathetic panel.

21. A good source of information about federal appellate judges is the Almanac of the Federal Judiciary (published by Aspen), a two-volume looseleaf volume updated at least twice a year; it has basic biographical information and anonymous evaluations by lawyers of judges’ perceived strengths, weaknesses, and political predispositions. Volume 2 describes the appellate judges.

22. Fed. R. App. P. 3(c)(1). Form 1 attached to the Federal Rules of Appellate Procedure is a “Notice of Appeal to a Court of Appeals from a Judgment or Order of a District Court.” See  Fed. R. App. P. 3(c)(5).

23. Id. 3(c)(1)(A).

24. Under the prior version of Federal Rule of Appellate Procedure 3(c)(1), the Supreme Court held that naming one plaintiff as an appellant, followed by “et al.,” was not sufficient to designate the unspecified plaintiffs as appellants. Torres v. Oakland Scavenger Co., 487 U.S. 312, 317-18 (1988). The rule was then liberalized to eliminate this trap for the unwary. See, e.g., Garcia v. Walsh, 20 F.3d 608, 609 (5th Cir. 1994).

25. Fed. R. App. P. 3(a)(1), (d)(1), (e). As a matter of courtesy, however, appellants’ counsel also should serve the notice of appeal on the other parties. See, e.g., Handbook of Practice and Internal Procedures § III.B.I. at 13 (D.C. Cir. Dec. 1, 2009) [hereinafter D.C. Circuit Handbook].

26. See, e.g., Bowles v. Russell, 551 U.S. 205, 214 (2007) (courts cannot make equitable exceptions); Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58-59 (1982); see also  Fed. R. App. P. 3(a)(2)  .

27. Fed. R. App. P. 4(a)(1)(A) .

28. Fed. R. App. P. 4(a)(1)(B) . The rules regarding judgments are almost metaphysical. According to  Federal Rule of Appellate Procedure 4(a)(7), a judgment is considered to be “entered” when there has been compliance with Fed. R. Civ. P. 58, which requires the judgment to be “set forth on a separate document.” Only then is the judgment “effective.” Fed. R. Civ. P. 58; see Shalala v. Schaeffer, 509 U.S. 292, 302-03 (1993). Adding to the complexity is that the real date on which the judgment is considered entered is “the date of entry of a civil judgment on the clerk’s docket,” which may not be shown on the docket sheet. Houston v. Greiner, 174 F.3d 287, 289 (2d Cir. 1999). Using the date file-stamped on the judgment as beginning the time to appeal is the safest approach.

29.  Fed. R. App. P. 4(a)(2) .

30Id.  4(a)(4)(B)(i) .

31. Id.  4(a)(3).

32. Id. 4(a)(5)(A).

33. See, e.g., Allied Steel v. City of Abilene, 909 F.2d 139, 142 (5th Cir. 1990).

34Fed. R. App. P. 4(a)(5)(A)(ii).

35Id. 3(e).

36. See 28 U.S.C. <!--[if gte mso 9]> Normal 0 false false false EN-US X-NONE X-NONE <![endif]-->§§ 1913 (note), 1917; U.S. Courts, Court of Appeals Miscellaneous Fee Schedule (Dec. 1, 2013).

37. Id. 24(a)(1). The necessary information for the accompanying declaration appears in Form 4 of the Federal Rules of Appellate Procedure. See id. 24(a)(1)(A).

38. Id. 24(a)(2).

39. Id. 24(a)(5).

40. Id. 24(a)(3).

41. Id. 10(b)(1).

42. Second Circuit Local Rule 31.2(a)(1).

43. See RLI Insurance Company v. JDJ Marine, Incorporated, 716 F.3d 41, 43-44 (2d Cir. 2013).

44. The panel of three judges must unanimously agree that the appeal is frivolous, that the dispositive issues “have been authoritatively decided,” or that the facts and arguments have been presented such that “the decisional process would not be significantly aided by oral argument.” Id. 34(a)(2).

45. First Circuit Local Rule 34(a).

46. Second Circuit Local Rule 34(d)(1).

47. Note, however, that the rules now generally require briefs to be in at least 14-point type. Fed. R. App. P. 32(a)(5)(A). Also, since the limit for a principal brief is only 30 pages, it will invariably be preferable to employ the alternative method of counting the words (up to 14,000 for a principal brief) and certifying compliance with that limit. Id. 32(a)(7)(B)(i),(C). Practitioners should also check the local rules.

48. Id. 8(a)(1), (2). The rule is somewhat illogical in requiring the appellant first to seek emergency relief pending appeal in the district court. If the district court grants a stay, it is effectively contradicting the rationale of its own previous decision to issue an injunction. See, e.g., Rodriguez v. DeBuono, 175 F.3d 227, 235 (2d Cir. 1999) (in reversing preliminary injunction which had been stayed by the district court, court of appeals states that “grant of a stay of a preliminary injunction pending appeal will almost always be logically inconsistent with a prior finding of irreparable harm”). The request for an injunction pending appeal from the district court is also almost certainly an exercise in futility because of that court’s denial of the request for an injunction on the merits. Nevertheless the effort should be made in order to satisfy the terms of the rule.

49. Nken v. Holder, 556 U.S. 418, 434 (2009). The Court also made it clear that satisfaction of these first two factors, the likelihood of success and irreparable harm, requires more than just a better than negligible chance of success and more than just the possibility of irreparable harm. Id.; see also, e.g., Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (listing the four factors for a stay pending appeal).  Rule 8(a)(1), Circuit Rules of the United States Court of Appeals for the District of Columbia Circuit (standard for both a stay and an injunction pending appeal).

50. In some instances the statute under which a case is brought specifies the circumstances in which the appeal may be expedited. See, e.g., D.C. Circuit Rule 47.2(a). Otherwise, the standard often is the traditional “good cause”; see, e.g., Rule 27-12, Circuit Rules of the United States Court of Appeals for the Ninth Circuit. Rule 27.5, Circuit Rules of the United States Court of Appeals for the Fifth Circuit, may be more demanding, such as in requiring “irreparable injury” and in that the decision under review be “subject to substantial challenge.” D.C. Circuit Handbook, supra note 423, § VIII.B, at 33.

51. The Fourth Circuit, for instance, discourages motions for summary disposition and considers them only after briefing is completed. Rule 27(f), Circuit Rules of the United States Court of Appeals for the Fourth Circuit. But see, e.g., D.C. Circuit Rule 27(g)(1) (requiring the motion to be filed within forty-five days of docketing); D.C. Circuit Handbook, supra note 423, § VIII.I at 36 (“Parties are encouraged to file such motions where a sound basis exists for summary disposition.”); see also, e.g., Rule 27.4, Third Circuit Local Appellate Rules (must “alleg[e] that no substantial question is presented”).

52. See, e.g., Taxpayers Watchdog Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987).

53. See, e.g., Indianapolis Power & Light Co. v. Surface Transp. Bd., No. 02-1056, 2002 WL 1349542 (D.C. Cir. June 19, 2002).

54. Fed. R. App. P. 40(a)(2).

55. See, e.g., Second Circuit Local Rule 40.1(d).

56. Fed. R. App. P. 40(a)(4).

57. Id. 35(a). Although extremely rare, a hearing en banc may also be requested before the appeal to the panel is heard. Id. 35(c).

58. Id. 35(a).

59. Indeed, a vote will not even be taken unless at least one judge calls for it. Id. 35(f). If rehearing en banc is granted, the appeal will be heard by the entire circuit court, except in the Ninth Circuit, which employs a limited en banc court of eleven judges (with a full en banc at least theoretically possible). Ninth Circuit Rule 35-3.

60. Fed. R. App. P. 40(a)(1), 35(c).

61. Id. 35(b)(2), (3), 40(b).

62. Id. 35(e), 40(a)(3).

63. 28 U.S.C. § 1254(1).

64. Sup. Ct. R. 13.1, 13.3.

65. Id., Rule 15.1, 15.3.

66. Id., Rule 15.4.

Updated 2013 by Gill Deford