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Civil Procedure II Outline - Part 8

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(e) Review by the Witness; Changes.

  1. Review; Statement of Changes. On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which:
    1. to review the transcript or recording; and
    2. if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.
  2. Changes Indicated in the Officer's Certificate. The officer must note in the certificate prescribed by Rule 30(f)(1) whether a review was requested and, if so, must attach any changes the deponent makes during the 30-day period.

(f) Certification and Delivery; Exhibits; Copies of the Transcript or Recording; Filing.

  1. Certification and Delivery. The officer must certify in writing that the witness was duly sworn and that the deposition accurately records the witness's testimony. The certificate must accompany the record of the deposition. Unless the court orders otherwise, the officer must seal the deposition in an envelope or package bearing the title of the action and marked “Deposition of [witness's name]” and must promptly send it to the attorney who arranged for the transcript or recording. The attorney must store it under conditions that will protect it against loss, destruction, tampering, or deterioration.
  2. Documents and Tangible Things.
    1. Originals and Copies. Documents and tangible things produced for inspection during a deposition must, on a party's request, be marked for identification and attached to the deposition. Any party may inspect and copy them. But if the person who produced them wants to keep the originals, the person may:
      1. offer copies to be marked, attached to the deposition, and then used as originals—after giving all parties a fair opportunity to verify the copies by comparing them with the originals; or
      2. give all parties a fair opportunity to inspect and copy the originals after they are marked—in which event the originals may be used as if attached to the deposition.
    2. Order Regarding the Originals. Any party may move for an order that the originals be attached to the deposition pending final disposition of the case.
  3. Copies of the Transcript or Recording. Unless otherwise stipulated or ordered by the court, the officer must retain the stenographic notes of a deposition taken stenographically or a copy of the recording of a deposition taken by another method. When paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party or the deponent.
  4. Notice of Filing. A party who files the deposition must promptly notify all other parties of the filing.

(g) Failure to Attend a Deposition or Serve a Subpoena; Expenses. A party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney's fees, if the noticing party failed to:

  1. attend and proceed with the deposition; or
  2. serve a subpoena on a nonparty deponent, who consequently did not attend.
33 Interrogatories to Parties

(a) In General.

  1. Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(1) and (2).
  2. Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). 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, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.
    • Analysis of 33(a)(2)
      • states that an interrogatory is not objectionable just because it asks for an opinion or contention that relates to factor the application of law to fact.
        • Such contention interrogatories are needed to ascertain how a party will contend that the law applies to the facts come trial.
          • The rule therefore allows the court to postpone the time for answering contention interrogatories until such discovery has been completed
      • By negative implication on the other hand an interrogatory that calls for a pure legal conclusion or opinion not applicable to the fate of the case is objectionable. The asking party can answer it as readily as the responding party, by looking in the library.

(b) Answers and Objections.

  1. Responding Party. The interrogatories must be answered:
    1. by the party to whom they are directed; or
    2. if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party.
      • Analysis of 33b1b
        • The duty imposed on a person is the same as a corporation
          • Rule 33b1b is to “furnish such information as is available to the party
  2. Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
  3. Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.
  4. Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.
  5. Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections.

(c) Use. An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence.

(d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:

  1. specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and
  2. giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.
    • Analysis of 33d
      • The option to produce business records
        • If the answer can be found in the defendants business records and the burden of searching them is no greater for the plaintiff than for the defendant, then it makes them available to the plaintiff in lieu of answering.

34
(a) In General. A party may serve on any other party a request within the scope of Rule 26(b):

  1. to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:
    • Analysis of 34(A)(1)
      • Target documents and things “in the responding party's possession custody or control”
    1. any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—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; or
    2. any designated tangible things; or
  2. to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

(b) Procedure.

  1. Contents of the Request. The request:
    1. must describe with reasonable particularity each item or category of items to be inspected;
    2. must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and
    3. may specify the form or forms in which electronically stored information is to be produced.
      • Analysis of 34b
        • Producing party to produce documents as they are kept in the usual course of business or to organize and label them to correspond to the categories in the request
  2. Responses and Objections.
    1. Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served or — if the request was delivered under Rule 26(d)(2) — within 30 days after the parties’ first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
    2. Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.
    3. Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.
    4. Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form—or if no form was specified in the request—the party must state the form or forms it intends to use.
    5. Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:
      1. A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
      2. If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
      3. A party need not produce the same electronically stored information in more than one form.

(c) Nonparties. As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.

36 Requests for Admissions

(a) Scope and Procedure.

  1. Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to:
    1. facts, the application of law to fact, or opinions about either; and
    2. the genuineness of any described documents.
  2. Form; Copy of a Document. Each matter must be separately stated. A request to admit the genuineness of a document must be accompanied by a copy of the document unless it is, or has been, otherwise furnished or made available for inspection and copying.
  3. Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.
  4. Answer. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The 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.
  5. Objections. The grounds for objecting to a request must be stated. A party must not object solely on the ground that the request presents a genuine issue for trial.
  6. Motion Regarding the Sufficiency of an Answer or Objection. The requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served. On finding that an answer does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served. The court may defer its final decision until a pretrial conference or a specified time before trial. Rule 37(a)(5) applies to an award of expenses.

(b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment 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. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding.

  • Analysis of 36
    • Purpose to narrow the issues for trial.
      • A party may request that an opposing party admit or deny the truth of statements in the request or the authenticity of documents attached to it. Usually the request is made after other discovery which is needed to frame the statement or locate the document. This timing suggests that the request for admission is less a discovery tool than a pretrial tool used to simplify the case on the eve of trial.
        • An admission conclusively establishes the matter admitted for the purposes of the particular case.
          • Event hough rule 26(g)s certification requirement applies to responses to request for admission no less than to other discovery responses, ambiguities in request for admission no less than to other discovery responses ambiguities in the evendeece alway enable the responding party to deny the truth of such ultimate contentions in the case without evening the rule.
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