It's all in the documents: the discovery rules work best when they work together. Strategic use of the rules for obtaining documents and deposing witnesses will thwart defense attempts to obstruct your search for evidence.In all complex litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute. When a person begins a civil lawsuit, the person enters into a process called litigation. , the truth is in the documents. Your challenge is to identify all relevant documents and compel their production. This can be a daunting daunt tr.v. daunt·ed, daunt·ing, daunts To abate the courage of; discourage. See Synonyms at dismay. [Middle English daunten, from Old French danter, from Latin task because opposing counsel is often evasive e·va·sive adj. 1. Inclined or intended to evade: took evasive action. 2. Intentionally vague or ambiguous; equivocal: an evasive statement. . The strategic use of Federal Rule of Civil Procedure 34, coupled with Rule 30, can help bring the documents you need to light. Rule 34 sets out the procedure and time requirements for producing, inspecting, and copying documents by parties to a lawsuit. (1) Generally, it requires that the responding party' be given at least 30 days to assemble and produce the requested documents or to state objections. (2) The responding party has to produce all documents that are in its control. (3) Control is defined not only as possession, but also as the legal ability to obtain the documents requested from a nonparty (for example, records possessed by a subsidiary corporation or those turned over to an independent accounting firm or consultant). (4) The responding party also must organize and label the documents. Because Rule 34 requests are often met with generic responses such as "overbroad, vague, irrelevant, and not calculated to lead to admissible evidence admissible evidence n. evidence which the trial judge finds is useful in helping the trier of fact (a jury if there is a jury, otherwise the judge), and which cannot be objected to on the basis that it is irrelevant, immaterial, or violates the rules against hearsay ," you must establish a clear record that will effectively support a motion to compel A motion to compel asks the court to order either the opposing party or a third party to take some action. This sort of motion most commonly deals with discovery disputes, when a party who has propounded discovery to either the opposing party or a third party believes that the production. When demanding documents, the interrogating par has the right to choose the method of examination, whether oral examination or written interrogatories Written questions submitted to a party from his or her adversary to ascertain answers that are prepared in writing and signed under oath and that have relevance to the issues in a lawsuit. . (5) Oral examination is generally favored because it allows for the cross-examination of evasive, recalcitrant recalcitrant adjective Poorly responsive to therapy , or hostile witnesses A witness at a trial who is so adverse to the party that called him or her that he or she can be cross-examined as though called to testify by the opposing party. The Federal Rules of Evidence provide that witnesses who are hostile, or adverse, can be interrogated through . (6) Depositions are a good vehicle for establishing the existence of documents and getting complete production responses. Rule 30(b)(5) allows you to compel witnesses to bring documents or tangible things to a deposition. If a Rule 34 request is served in connection with a Rule 30(b)(5) deposition notice, the deponent An individual who, under oath or affirmation, gives out-of-court testimony in a deposition. A deponent is someone who gives evidence or acts as a witness. The testimony of a deponent is written and carries the deponent's signature. deponent n. will be required to bring the requested documents to the deposition for examination, copying, and inquiry. The 30-days-notice requirements and other dictates of Rule 34 will apply when compelling the production of tangible items under the Rule 30 (b) (5) deposition protocol. Rule 30(b)(5) and Rule 34 apply exclusively to parties to litigation. For nonparties, you need Rule 45. Nonparty testimony is compelled by subpoena subpoena (səpē`nə) [Lat.,=under penalty], in law, an order to a witness to appear before a court. A subpoena ad testificandum [Lat. , (7) while the production of documents is compelled with a subpoena duces tecum [Latin, Under penalty to bring with you.] The judicial process used to command the production before a court of papers, documents, or other tangible items of evidence. . (8) You can use depositions to determine whether documents exist and have been thoroughly produced. Your goal is to find the most appropriate people to depose To make a deposition; to give evidence in the shape of a deposition; to make statements that are written down and sworn to; to give testimony that is reduced to writing by a duly qualified officer and sworn to by the deponent. . To this end, Rule 30(b)(6) requires an organization to designate and prepare people authorized to speak on its behalf. The advisory comments set forth the underlying policy that gave rise to the rule: "It will curb the 'bandying' by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to it." (9) Pulling it all together In responding to a Rule 34 request for documents, producing counsel can supply only what the client gives him or her. And some attorneys are purposely pur·pose·ly adv. With specific purpose. purposely Adverb on purpose USAGE: See at purposeful. Adv. 1. less than forthcoming with information. By using Rule 34 in conjunction with Rules 30(b)(5) and 30(b)(6), however, you can find the people best able to identify available documents (and attest To solemnly declare verbally or in writing that a particular document or testimony about an event is a true and accurate representation of the facts; to bear witness to. To formally certify by a signature that the signer has been present at the execution of a particular writing so as that a thorough search was conducted) and require them to produce the documents at a deposition. I call this type of deposition, which requires a witness to verify the completeness of the search, the "Death Star" deposition. If the produced documents are incomplete, you can question the 30(b)(6) designee des·ig·nee n. A person who has been designated. to determine what was omitted and why. This is more efficient than the more common approach of requesting documents under Rule 34 alone, without a sworn witness to vouch for vouch for verb 1. guarantee, back, certify, answer for, swear to, stick up for (informal) stand witness, give assurance of, asseverate, go bail for verb 2. the authenticity and completeness of the documents produced. The power of the 30(b)(6) deposition lies in the obligations that the rule imposes on the responding party. Other depositions customarily used in civil proceedings do not entail the same duties. Duty to designate. By designating a representative, an organization indicates that he or she has the authority to speak on its behalf about the matters listed in the notice of deposition--not only to facts, but also to subjective beliefs and opinions. (10) The rule specifies that people who are not company officers, directors, or managing agents must consent to testify, allowing an employee or other agent who has an independent or conflicting interest in the litigation to refuse to be deposed. Duty to substitute. If it becomes clear that the chosen representative is unable to respond to questions on the matters for which he or she has been designated, the organization must immediately provide a substitute knowledgeable witness. (11) This is required even if the initial designation was made in good faith. (12) Duty to prepare. The testimony elicited at the (30)(b)(6) deposition represents the organization's knowledge, not the individual deponent's knowledge. (13) The organization must prepare the witness to testify to all matters "known or reasonably available to the organization." (14) Therefore, if the organization's designees do not know about the matters specified in the deposition notice, it must prepare them to give knowledgeable, binding answers. (15) The organization must conduct a thorough investigation in response to the 30(b)(6) deposition notice. (16) It has a duty to prepare for the deposition even if it is burdensome to do so. (17) "Reasonably available" information includes all documents that the organization has a legal right or authority or practical ability to get, even if they are not in its physical possession or are in the possession of a nonparty. A court may consider the withholding of evidence despite reasonable availability to be an act similar to spoliation Any erasure, interlineation, or other alteration made to Commercial Paper, such as a check or promissory note, by an individual who is not acting pursuant to the consent of the parties who have an interest in such instrument. , which should be sanctioned. (18) An inadequately prepared designated witness will amount to an impermissible im·per·mis·si·ble adj. Not permitted; not permissible: impermissible behavior. im refusal to answer and a sanctionable failure to appear. (19) Some lawyers try to obstruct ob·struct v. To block or close a body passage so as to hinder or interrupt a flow. ob·struc  tive adj. legitimate discovery by issuing
boilerplate A phrase or body of text used verbatim in different documents such as a signature at the end of a letter. Boilerplate is widely used in the legal profession as many paragraphs are used over and over in agreements with little modification or no modification. objections. Use the deposition to establish that these
responses are spurious spu·ri·ousadj. Similar in appearance or symptoms but unrelated in morphology or pathology; false. spurious simulated; not genuine; false. . For example, if your opponent objects that your request for "all of the defendant's resident census records from January 1, 2004, to June 1, 2004," is vague and overly burdensome, pursue a line of questioning Noun 1. line of questioning - an ordering of questions so as to develop a particular argument line of inquiry line of reasoning, logical argument, argumentation, argument, line - a course of reasoning aimed at demonstrating a truth or falsehood; the like this one: Q: When I use the term resident census, you know what I'm talking I'm Talking was a 1980s Australian funk-pop rock band, noted for launching vocalist Kate Ceberano. History After the break-up of the Melbourne-based experimental funk band Essendon Airport in 1983, members Robert Goodge (guitar), Ian Cox (saxophone) and Barbara Hogarth about, right? A: Right. Q: There's nothing ambiguous about the term resident census, is there? A: No. Q: Resident census data is kept on a computer database? A: Yes. Q: Do you look at that data every day? A: Yes. Q: Is there anything hard about looking up that data? A: No. Q: Just call it up on the computer? A: Yes. Q: Is it overly burdensome for you to call up that information on the computer? A: No. Q: How about printing it, is it very hard to print? A: No. This establishes that the written response to your discovery request was less than candid. With this tight deposition record, the defendant cannot possibly argue that the term is vague and the production would be overly burdensome. As an added benefit, you may be able to use this testimony against your opponent at trial. Rule 32(a)(2) allows depositions to be used by an adverse party. Jurors will be less likely to trust your adversary adversary traditional appellation of Satan [O.T.: Job 1:6; N.T.: I Peter 5:8] See : Devil if you show he or she was evasive about producing records. Scope of inquiry Rule 30(b)(6) cannot be used to limit what is asked of the designated witness. (20) The description contained in the deposition notice simply identifies the minimum to which a witness must be prepared to testify. (21) Once a corporation has produced a witness who can speak to matters described in the notice, the general discovery standard of Rule 26(b)(1) guides the inquiry. (22) If an examining party asks questions outside the scope of the matters described in the notice, the general deposition rules govern. (23) The well-crafted 30(b)(6) notice will identify specific issues to be explored, rather than designate a specific person or category of person. If you are too specific in your designation (for example, "records custodian bailee (custodian) n. a person with whom some article is left, usually pursuant to a contract (called a "contract of bailment"), who is responsible for the safe return of the article to the owner when the contract is fulfilled. "), you may not get all the information known to the business entity. The deponent may fit your designated title but not have the information you want. Further, if you limit your notice to "the person with most knowledge," you may be limiting the deposition to what that one person knows. By specifying the area of inquiry, you shift the burden to the producing party to assemble all the necessary information, and it is easy to make a record showing that your opponent did not comply with discovery rules. For example: Q: Did you look for the resident census? A: No. Q: Why not? A: That's not part of my job. Witnesses must be prepared to completely, knowledgeably, and unevasively provide binding answers to questions within the scope of the matters specified in the deposition notice. (24) Written discovery is seldom sufficient. You will make the most of your depositions if you make thoughtful use of Rules 30(b)(5), 30(b)(6), and 34. By defining specific areas of inquiry rather than a class of people, you shift the burden to the defendant to designate and prepare witnesses who can best provide the necessary access to documents. Once you are confident that document production is complete, you will be able to examine additional witnesses about the content of those records. Notes (1.) FED. R. CIV JUS AQUAEDUCTUS, CIV. law. The name of a servitude which Lives to the owner of land the right to bring down water through or from the land of another, either from its source or from any other place. 2. . E 34(a). (2.) FED. R. CIV. P. 34(b). (3.) Calzaturio S.C.A.R.P.A. S.P.A. v. Fabiano Shoe Co., 201 F.R.D. 33, 38 (D. Mass. 2001). (4.) Id.; Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984); see also Alexander v. FBI, 194 F.R.D. 299, 301 (D.D.C. 2000). (5.) Goldberg v. Raleigh Mfrs., 28 F. Supp. 975, 977 (D.C. Mass. 1939). (6.) In re China Merchants Steam Nav. Co., 259 F. Supp. 75, 78 (S.D.N.Y. 1966). (7.) FED. R. CIV. P. 45(a)(2). (8.) FED. R. CIV. P. 45(a)(1)(c). (9.) FED. R. CIV. P. 30 Advisory Committee Notes, 1970 Amendments. (10.) Lapenna v. Upjohn Co., 110 F.R.D. 15, 20 (E.D. Pa. 1986); see also Alexander v. FBI, 186 F.R.D. 148, 151 (D.D.C. 1999); Mitsui & Co. v. Puerto Rico Puerto Rico (pwār`tō rē`kō), island (2005 est. pop. 3,917,000), 3,508 sq mi (9,086 sq km), West Indies, c.1,000 mi (1,610 km) SE of Miami, Fla. Water Res. Auth., 93 F.R.D. 62, 66-67 (D.F.R. 1981); Donald E. Frechette, Beware the Rule 30(b)(6) Deposition, FOR THE DEFENSE, Mar. 2000, at 38. (11.) Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000); Alexander; 186 F.R.D. 148, 152; Dravo Corp. v. Liberty Mutual Ins. Co., 164 F.R.D. 70 (D. Neb. 1995); Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989). (12.) Marker, 125 F.R.D. 121, 126; Frechette, supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process. note 10. (13.) United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. v. Taylor; 166 F.R.D. 356, 361 (M.D.N.C. 1996) (citing 8 CHARLES ALAN WRIGHT Charles Alan Wright (1927 - 2000), was a prominent authority in the United States on constitutional law and federal procedure, and was the author of the treatise, Federal Practice and Procedure. ET AL., FEDERAL PRACTICE AND PROCEDURE [section] 2103, at 30 (2d ed. 1994)). (14.) FED. R. CIV. P. 30(b)(6); Alexander, 186 F.R.D. 148, 152; Mitsui & Co., 93 F.R.D. 62, 67; Frechette, supra note 10. (15.) Taylor, 166 F.R.D. 356, 361. (16.) In re Indep. Serv. Orgs. Antitrust Litig., 168 F.R.D. 651, 653 (D. Kan. 1996). (17.) Taylor, 166 F.R.D. 356, 362. (18.) Prokosch, 193 F.R.D. 633 (citing Lumber v. PPG PPG Points Per Game (basketball player statistic) PPG Power Play Goals (hockey) PPG Planning Policy Guidance (UK) PPG Programmable Pulse Generator PPG Power Puff Girls Indus., 168 F.R.D. 641, 643 n.1 (D. Minn. 1966)). (19.) See Black Horse Lane Assoc. v. Dow Chem. Corp., 228 F.3d 275, 303 (3d Cir. 2000); Resolution Trust Corp. v. S. Union Co., 985 F. 2d 196, 197 (5th Cir. 1993); Taylor, 166 F.R.D. 356, 363; Marker, 125 F.R.D. 121, 126. (20.) King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995). (21.) Detoy v. City & County of Sara Francisco, 196 F.R.D. 362, 366 (N.D. Cal. 2000); Overseas Private Inv. Corp. v. Mandelbaum, 185 F.R.D. 67, 68 (D.D.C. 1999); King; 161 F.R.D. 475, 476. (22.) Overseas Private Inv. Corp., 185 F.R.D. 67, 68; accord Edison Corp. v. Secaucus, 17 N.J. Tax 1978 (N.J. Tax Ct. 1998). (23.) King, 161 F.R.D. 475, 476; Frechette, supra note 10, at 41; see also Cabot Corp. v. Yamulla Enters., 194 F.R.D. 499, 500 (M.D. Pa. 2000); Overseas Private Inv. Corp., 185 F.R.D. 67, 68-69. (24.) See Dwelly v. Yamaha Motor Corp., 214 F.R.D. 537, 540 (D. Minn. 2003); Nevada Power Co. v. Monsanto Co., 891 F. Supp. 1406, 1418 (D. Nev. 1995); Marker 125 F.R.D. 121, 126. Sharpen your discovery skills with Exchange litigation packets Litigation packets highlighting discovery strategies and techniques are available from the ATLA ATLA Association of Trial Lawyers of America ATLA American Theological Library Association ATLA American Trial Lawyers Association ATLA Air Transport Licensing Authority (Hong Kong) ATLA Avatar: The Last Airbender Exchange. ATLA members helped create the packets by submitting documents from actual cases. For more information, contact the Exchange by phone at (800) 344-3023 or fax at (202) 337-0977, or log on at www.exchange.atla.org. Discovery Strategy: Effective Use of Rules 30(b)(5), 30(b)(6), and 34 (May 2005, 466 pages). A how-to guide outlining uses of these three rules together to ensure that you receive all the documents you are entitled to in discovery. The packet includes 30(b)(6) deposition notices, deposition guidelines and transcripts, and court orders. The packet also includes an ATLA Education speaker paper. Discovery Abuse: Lemons Learned from Nursing Home Cases (March 2005, 504 pages). This packet--an instructional manual designed to assist plaintiff lawyers dealing with abusive discovery tactics--contains plaintiff interrogatories; plaintiff requests for documents; motions to compel discovery, for contempt, and for sanctions; and court orders. It also includes ATLA Education speaker papers and TRIAL articles. Taking Depositions: Experts, Lay Witnesses, and Corporate Representatives (September 2004, 1,042 pages). A resource manual for planning and preparing for depositions, this packet contains analyses, tactics, deposition outlines, and deposition transcripts in a wide range of practice areas. It addresses several types of adverse experts, corporate 30(b) (6) designees, and lay witnesses. E56M 1TRS See traffic engineering methods. TRS - term rewriting system Talk to TRIAL TRIAL is your journal, so let us know what you think about its topics and articles. Readers' substantive comments about the contents help the authors and editors better serve the needs of trial lawyers and the legal community. Please address correspondence to Letters to the Editor, TRIAL, 1050 31st St., N.W., Washington, DC 20007-4499; fax (202) 965-0030; or send e-mail to trial@atlahq.org. TRIAL reserves the right to select, edit, and excerpt ex·cerpt n. A passage or segment taken from a longer work, such as a literary or musical composition, a document, or a film. tr.v. ex·cerpt·ed, ex·cerpt·ing, ex·cerpts 1. letters for publication. MARK KOSIERADZKI practices law in Minneapolis. |
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