US (United States) Code. Title 28. Appendix 3

Codificación normativa de EEUU (Estados Unidos). Legislación federal estadounidense # Federal rules of civil procedure

  • Enviado por: El remitente no desea revelar su nombre
  • Idioma: inglés
  • País: Estados Unidos Estados Unidos
  • 227 páginas
publicidad
publicidad

-CITE-

28 USC APPENDIX Rule 23.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IV. PARTIES

-HEAD-

Rule 23.1. Derivative Actions by Shareholders

-STATUTE-

In a derivative action brought by one or more shareholders or

members to enforce a right of a corporation or of an unincorporated

association, the corporation or association having failed to

enforce a right which may properly be asserted by it, the complaint

shall be verified and shall allege (1) that the plaintiff was a

shareholder or member at the time of the transaction of which the

plaintiff complains or that the plaintiff's share or membership

thereafter devolved on the plaintiff by operation of law, and (2)

that the action is not a collusive one to confer jurisdiction on a

court of the United States which it would not otherwise have. The

complaint shall also allege with particularity the efforts, if any,

made by the plaintiff to obtain the action the plaintiff desires

from the directors or comparable authority and, if necessary, from

the shareholders or members, and the reasons for the plaintiff's

failure to obtain the action or for not making the effort. The

derivative action may not be maintained if it appears that the

plaintiff does not fairly and adequately represent the interests of

the shareholders or members similarly situated in enforcing the

right of the corporation or association. The action shall not be

dismissed or compromised without the approval of the court, and

notice of the proposed dismissal or compromise shall be given to

shareholders or members in such manner as the court directs.

-SOURCE-

(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987,

eff. Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1966

A derivative action by a shareholder of a corporation or by a

member of an unincorporated association has distinctive aspects

which require the special provisions set forth in the new rule. The

next-to-the-last sentence recognizes that the question of adequacy

of representation may arise when the plaintiff is one of a group of

shareholders or members. Cf. 3 Moore's Federal Practice, par. 23.08

(2d ed. 1963).

The court has inherent power to provide for the conduct of the

proceedings in a derivative action, including the power to

determine the course of the proceedings and require that any

appropriate notice be given to shareholders or members.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 23.2 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IV. PARTIES

-HEAD-

Rule 23.2. Actions Relating to Unincorporated Associations

-STATUTE-

An action brought by or against the members of an unincorporated

association as a class by naming certain members as representative

parties may be maintained only if it appears that the

representative parties will fairly and adequately protect the

interests of the association and its members. In the conduct of the

action the court may make appropriate orders corresponding with

those described in Rule 23(d), and the procedure for dismissal or

compromise of the action shall correspond with that provided in

Rule 23(e).

-SOURCE-

(As added Feb. 28, 1966, eff. July 1, 1966.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1966

Although an action by or against representatives of the

membership of an unincorporated association has often been viewed

as a class action, the real or main purpose of this

characterization has been to give "entity treatment" to the

association when for formal reasons it cannot sue or be sued as a

jural person under Rule 17(b). See Louisell & Hazard, Pleading and

Procedure: State and Federal 718 (1962); 3 Moore's Federal

Practice, par. 23.08 (2d ed. 1963); Story, J. in West v. Randall,

29 Fed.Cas. 718, 722-23, No. 17,424 (C.C.D.R.I. 1820); and, for

examples, Gibbs v. Buck, 307 U.S. 66 (1939); Tunstall v.

Brotherhood of Locomotive F. & E., 148 F.2d 403 (4th Cir. 1945);

Oskoian v. Canuel, 269 F.2d 311 (1st Cir. 1959). Rule 23.2 deals

separately with these actions, referring where appropriate to Rule

23.

-End-

-CITE-

28 USC APPENDIX Rule 24 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IV. PARTIES

-HEAD-

Rule 24. Intervention

-STATUTE-

(a) Intervention of Right. Upon timely application anyone shall

be permitted to intervene in an action: (1) when a statute of the

United States confers an unconditional right to intervene; or (2)

when the applicant claims an interest relating to the property or

transaction which is the subject of the action and the applicant is

so situated that the disposition of the action may as a practical

matter impair or impede the applicant's ability to protect that

interest, unless the applicant's interest is adequately represented

by existing parties.

(b) Permissive Intervention. Upon timely application anyone may

be permitted to intervene in an action: (1) when a statute of the

United States confers a conditional right to intervene; or (2) when

an applicant's claim or defense and the main action have a question

of law or fact in common. When a party to an action relies for

ground of claim or defense upon any statute or executive order

administered by a federal or state governmental officer or agency

or upon any regulation, order, requirement, or agreement issued or

made pursuant to the statute or executive order, the officer or

agency upon timely application may be permitted to intervene in the

action. In exercising its discretion the court shall consider

whether the intervention will unduly delay or prejudice the

adjudication of the rights of the original parties.

(c) Procedure. A person desiring to intervene shall serve a

motion to intervene upon the parties as provided in Rule 5. The

motion shall state the grounds therefor and shall be accompanied by

a pleading setting forth the claim or defense for which

intervention is sought. The same procedure shall be followed when a

statute of the United States gives a right to intervene. When the

constitutionality of an act of Congress affecting the public

interest is drawn in question in any action in which the United

States or an officer, agency, or employee thereof is not a party,

the court shall notify the Attorney General of the United States as

provided in Title 28, U.S.C., Sec. 2403. When the constitutionality

of any statute of a State affecting the public interest is drawn in

question in any action in which that State or any agency, officer,

or employee thereof is not a party, the court shall notify the

attorney general of the State as provided in Title 28, U.S.C. Sec.

2403. A party challenging the constitutionality of legislation

should call the attention of the court to its consequential duty,

but failure to do so is not a waiver of any constitutional right

otherwise timely asserted.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.

Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966,

eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991,

eff. Dec. 1, 1991.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

The right to intervene given by the following and similar

statutes is preserved, but the procedure for its assertion is

governed by this rule:

U.S.C., Title 28:

Sec. 45a [now 2323] (Special attorneys; participation by

Interstate Commerce Commission; intervention) (in certain

cases under interstate commerce laws)

Sec. 48 [now 2322] (Suits to be against United States;

intervention by United States)

Sec. 401 [now 2403] (Intervention by United States;

constitutionality of Federal statute)

U.S.C., Title 40:

Sec. 276a-2(b) [now 3144] (Bonds of contractors for public

buildings or works; rights of persons furnishing labor and

materials).

Compare with the last sentence of [former] Equity Rule 37

(Parties Generally - Intervention). This rule amplifies and

restates the present federal practice at law and in equity. For the

practice in admiralty see Admiralty Rules 34 (How Third Party May

Intervene) and 42 (Claims Against Proceeds in Registry). See

generally Moore and Levi, Federal Intervention: I The Right to

Intervene and Reorganization (1936), 45 Yale L.J. 565. Under the

codes two types of intervention are provided, one for the recovery

of specific real or personal property (2 Ohio Gen.Code Ann. (Page,

1926) Sec. 11263; Wyo.Rev.Stat.Ann. (Courtright, 1931) Sec.

89-522), and the other allowing intervention generally when the

applicant has an interest in the matter in litigation (1

Colo.Stat.Ann. (1935) Code Civ.Proc. Sec. 22; La.Code Pract. (Dart,

1932) Arts. 389-394; Utah Rev.Stat.Ann. (1933) Sec. 104-3-24). The

English intervention practice is based upon various rules and

decisions and falls into the two categories of absolute right and

discretionary right. For the absolute right see English Rules Under

the Judicature Act (The Annual Practice, 1937) O. 12, r. 24

(admiralty), r. 25 (land), r. 23 (probate); O. 57, r. 12

(execution); J. A. (1925) Secs. 181, 182, 183(2) (divorce); In re

Metropolitan Amalgamated Estates, Ltd., (1912) 2 Ch. 497

(receivership); Wilson v. Church, 9 Ch.D. 552 (1878)

(representative action). For the discretionary right see O. 16, r.

11 (nonjoinder) and Re Fowler, 142 L. T. Jo. 94 (Ch. 1916),

Vavasseur v. Krupp, 9 Ch.D. 351 (1878) (persons out of the

jurisdiction).

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENTS

Note. Subdivision (a). The addition to subdivision (a)(3) covers

the situation where property may be in the actual custody of some

other officer or agency - such as the Secretary of the Treasury -

but the control and disposition of the property is lodged in the

court wherein the action is pending.

Subdivision (b). The addition in subdivision (b) permits the

intervention of governmental officers or agencies in proper cases

and thus avoids exclusionary constructions of the rule. For an

example of the latter, see Matter of Bender Body Co. (Ref.Ohio

1941) 47 F.Supp. 224, aff'd as moot (N.D.Ohio 1942) 47 F.Supp. 224,

234, holding that the Administrator of the Office of Price

Administration, then acting under the authority of an Executive

Order of the President, could not intervene in a bankruptcy

proceeding to protest the sale of assets above ceiling prices.

Compare, however, Securities and Exchange Commission v. United

States Realty & Improvement Co. (1940) 310 U.S. 434, where

permissive intervention of the Commission to protect the public

interest in an arrangement proceeding under Chapter XI of the

Bankruptcy Act was upheld. See also dissenting opinion in

Securities and Exchange Commission v. Long Island Lighting Co.

(C.C.A.2d, 1945) 148 F.(2d) 252, judgment vacated as moot and case

remanded with direction to dismiss complaint (1945) 325 U.S. 833.

For discussion see Commentary, Nature of Permissive Intervention

Under Rule 24b (1940) 3 Fed.Rules Serv. 704; Berger, Intervention

by Public Agencies in Private Litigation in the Federal Courts

(1940) 50 Yale L.J. 65.

Regarding the construction of subdivision (b)(2), see Allen

Calculators, Inc. v. National Cash Register Co. (1944) 322 U.S.

137.

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

The amendment substitutes the present statutory reference.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This amendment conforms to the amendment of Rule 5(a). See the

Advisory Committee's Note to that amendment.

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

In attempting to overcome certain difficulties which have arisen

in the application of present Rule 24(a)(2) and (3), this amendment

draws upon the revision of the related Rules 19 (joinder of persons

needed for just adjudication) and 23 (class actions), and the

reasoning underlying that revision.

Rule 24(a)(3) as amended in 1948 provided for intervention of

right where the applicant established that he would be adversely

affected by the distribution or disposition of property involved in

an action to which he had not been made a party. Significantly,

some decided cases virtually disregarded the language of this

provision. Thus Professor Moore states: "The concept of a fund has

been applied so loosely that it is possible for a court to find a

fund in almost any in personam action." 4 Moore's Federal Practice,

par. 24.09[3], at 55 (2d ed. 1962), and see, e.g., Formulabs, Inc.

v. Hartley Pen Co., 275 F.2d 52 (9th Cir. 1960). This development

was quite natural, for Rule 24(a)(3) was unduly restricted. If an

absentee would be substantially affected in a practical sense by

the determination made in an action, he should, as a general rule,

be entitled to intervene, and his right to do so should not depend

on whether there is a fund to be distributed or otherwise disposed

of. Intervention of right is here seen to be a kind of counterpart

to Rule 19(a)(2)(i) on joinder of persons needed for a just

adjudication: where, upon motion of a party in an action, an

absentee should be joined so that he may protect his interest which

as a practical matter may be substantially impaired by the

disposition of the action, he ought to have a right to intervene in

the action on his own motion. See Louisell & Hazard, Pleading and

Procedure: State and Federal 749-50 (1962).

The general purpose of original Rule 24(a)(2) was to entitle an

absentee, purportedly represented by a party, to intervene in the

action if he could establish with fair probability that the

representation was inadequate. Thus, where an action is being

prosecuted or defended by a trustee, a beneficiary of the trust

should have a right to intervene if he can show that the trustee's

representation of his interest probably is inadequate; similarly a

member of a class should have the right to intervene in a class

action if he can show the inadequacy of the representation of his

interest by the representative parties before the court.

Original Rule 24(a)(2), however, made it a condition of

intervention that "the applicant is or may be bound by a judgment

in the action," and this created difficulties with intervention in

class actions. If the "bound" language was read literally in the

sense of res judicata, it could defeat intervention in some

meritorious cases. A member of a class to whom a judgment in a

class action extended by its terms (see Rule 23(c)(3), as amended)

might be entitled to show in a later action, when the judgment in

the class action was claimed to operate as res judicata against

him, that the "representative" in the class action had not in fact

adequately represented him. If he could make this showing, the

class-action judgment might be held not to bind him. See Hansberry

v. Lee, 311 U.S. 32 (1940). If a class member sought to intervene

in the class action proper, while it was still pending, on grounds

of inadequacy of representation, he could be met with the argument:

if the representation was in fact inadequate, he would not be

"bound" by the judgment when it was subsequently asserted against

him as res judicata, hence he was not entitled to intervene; if the

representation was in fact adequate, there was no occasion or

ground for intervention. See Sam Fox Publishing Co. v. United

States, 366 U.S. 683 (1961); cf. Sutphen Estates, Inc. v. United

States, 342 U.S. 19 (1951). This reasoning might be linguistically

justified by original Rule 24(a)(2); but it could lead to poor

results. Compare the discussion in International M. & I. Corp. v.

Von Clemm, 301 F.2d 857 (2d Cir. 1962); Atlantic Refining Co. v.

Standard Oil Co., 304 F.2d 387 (D.C.Cir. 1962). A class member who

claims that his "representative" does not adequately represent him,

and is able to establish that proposition with sufficient

probability, should not be put to the risk of having a judgment

entered in the action which by its terms extends to him, and be

obliged to test the validity of the judgment as applied to his

interest by a later collateral attack. Rather he should, as a

general rule, be entitled to intervene in the action.

The amendment provides that an applicant is entitled to intervene

in an action when his position is comparable to that of a person

under Rule 19(a)(2)(i), as amended, unless his interest is already

adequately represented in the action by existing parties. The Rule

19(a)(2)(i) criterion imports practical considerations, and the

deletion of the "bound" language similarly frees the rule from

undue preoccupation with strict considerations of res judicata.

The representation whose adequacy comes into question under the

amended rule is not confined to formal representation like that

provided by a trustee for his beneficiary or a representative party

in a class action for a member of the class. A party to an action

may provide practical representation to the absentee seeking

intervention although no such formal relationship exists between

them, and the adequacy of this practical representation will then

have to be weighed. See International M. & I. Corp. v. Von Clemm,

and Atlantic Refining Co. v. Standard Oil Co., both supra; Wolpe v.

Poretsky, 144 F.2d 505 (D.C.Cir. 1944), cert. denied, 323 U.S. 777

(1944); cf. Ford Motor Co. v. Bisanz Bros., 249 F.2d 22 (8th Cir.

1957); and generally, Annot., 84 A.L.R.2d 1412 (1961).

An intervention of right under the amended rule may be subject to

appropriate conditions or restrictions responsive among other

things to the requirements of efficient conduct of the proceedings.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

Language is added to bring Rule 24(c) into conformity with the

statute cited, resolving some confusion reflected in district court

rules. As the text provides, counsel challenging the

constitutionality of legislation in an action in which the

appropriate government is not a party should call the attention of

the court to its duty to notify the appropriate governmental

officers. The statute imposes the burden of notification on the

court, not the party making the constitutional challenge, partly in

order to protect against any possible waiver of constitutional

rights by parties inattentive to the need for notice. For this

reason, the failure of a party to call the court's attention to the

matter cannot be treated as a waiver.

-End-

-CITE-

28 USC APPENDIX Rule 25 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IV. PARTIES

-HEAD-

Rule 25. Substitution of Parties

-STATUTE-

(a) Death.

(1) If a party dies and the claim is not thereby extinguished,

the court may order substitution of the proper parties. The

motion for substitution may be made by any party or by the

successors or representatives of the deceased party and, together

with the notice of hearing, shall be served on the parties as

provided in Rule 5 and upon persons not parties in the manner

provided in Rule 4 for the service of a summons, and may be

served in any judicial district. Unless the motion for

substitution is made not later than 90 days after the death is

suggested upon the record by service of a statement of the fact

of the death as provided herein for the service of the motion,

the action shall be dismissed as to the deceased party.

(2) In the event of the death of one or more of the plaintiffs

or of one or more of the defendants in an action in which the

right sought to be enforced survives only to the surviving

plaintiffs or only against the surviving defendants, the action

does not abate. The death shall be suggested upon the record and

the action shall proceed in favor of or against the surviving

parties.

(b) Incompetency. If a party becomes incompetent, the court upon

motion served as provided in subdivision (a) of this rule may allow

the action to be continued by or against the party's

representative.

(c) Transfer of Interest. In case of any transfer of interest,

the action may be continued by or against the original party,

unless the court upon motion directs the person to whom the

interest is transferred to be substituted in the action or joined

with the original party. Service of the motion shall be made as

provided in subdivision (a) of this rule.

(d) Public Officers; Death or Separation From Office.

(1) When a public officer is a party to an action in his

official capacity and during its pendency dies, resigns, or

otherwise ceases to hold office, the action does not abate and

the officer's successor is automatically substituted as a party.

Proceedings following the substitution shall be in the name of

the substituted party, but any misnomer not affecting the

substantial rights of the parties shall be disregarded. An order

of substitution may be entered at any time, but the omission to

enter such an order shall not affect the substitution.

(2) A public officer who sues or is sued in an official

capacity may be described as a party by the officer's official

title rather than by name; but the court may require the

officer's name to be added.

-SOURCE-

(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff.

July 19, 1961; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff.

Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). 1. The first paragraph of this rule is

based upon [former] Equity Rule 45 (Death of Party - Revivor) and

U.S.C., Title 28, [former] Sec. 778 (Death of parties; substitution

of executor or administrator). The scire facias procedure provided

for in the statute cited is superseded and the writ is abolished by

Rule 81 (b). Paragraph two states the content of U.S.C., Title 28,

[former] Sec. 779 (Death of one of several plaintiffs or

defendants). With these two paragraphs compare generally English

Rules Under the Judicature Act (The Annual Practice, 1937) O. 17,

r.r. 1-10.

2. This rule modifies U.S.C., Title 28, [former] Secs. 778 (Death

of parties; substitution of executor or administrator), 779 (Death

of one of several plaintiffs or defendants), and 780 (Survival of

actions, suits, or proceedings, etc.) insofar as they differ from

it.

Note to Subdivisions (b) and (c). These are a combination and

adaptation of N.Y.C.P.A. (1937) Sec. 83 and Calif.Code Civ.Proc.

(Deering, 1937) Sec. 385; see also 4 Nev.Comp.Laws (Hillyer, 1929)

Sec. 8561.

Note to Subdivision (d). With the first and last sentences

compare U.S.C., Title 28, [former] Sec. 780 (Survival of actions,

suits, or proceedings, etc.). With the second sentence of this

subdivision compare Ex parte La Prade, 289 U.S. 444 (1933).

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

The Act of February 13, 1925, 43 Stat. 941, U.S.C. Title 28, Sec.

780, is repealed and not included in revised Title 28, for the

stated reason that it is "Superseded by Rules 25 and 81 of the

Federal Rules of Civil Procedure." See Report from the Committee on

the Judiciary, House of Representatives, to Accompany H.R. 3214,

House Rept. 308 (80th Cong., 1st Sess.), p. A239. Those officers

which that Act specified but which were not enumerated in Rule

25(d), namely, officers of "the Canal Zone, or of a Territory or an

insular possession of the United States, . . . or other

governmental agency of such Territory or insular possession,"

should now be specifically enumerated in the rule and the amendment

so provides.

NOTES OF ADVISORY COMMITTEE ON RULES - 1961 AMENDMENT

Subdivision (d)(1). Present Rule 25(d) is generally considered to

be unsatisfactory. 4 Moore's Federal Practice ¶ 25.01[7] (2d

ed. 1950); Wright, Amendments to the Federal Rules: The Function of

a Continuing Rules Committee, 7 Vand.L.Rev. 521, 529 (1954);

Developments in the Law - Remedies Against the United States and

Its Officials, 70 Harv.L.Rev. 827, 931-34 (1957). To require, as a

condition of substituting a successor public officer as a party to

a pending action, that an application be made with a showing that

there is substantial need for continuing the litigation, can rarely

serve any useful purpose and fosters a burdensome formality. And to

prescribe a short, fixed time period for substitution which cannot

be extended even by agreement, see Snyder v. Buck, 340 U.S. 15, 19

(1950), with the penalty of dismissal of the action, "makes a trap

for unsuspecting litigants which seems unworthy of a great

government." Vibra Brush Corp. v. Schaffer, 256 F.2d 681, 684 (2d

Cir. 1958). Although courts have on occasion found means of

undercutting the rule, e.g. Acheson v. Furusho, 212 F.2d 284 (9th

Cir. 1954) (substitution of defendant officer unnecessary on theory

that only a declaration of status was sought), it has operated

harshly in many instances, e.g. Snyder v. Buck, supra; Poindexter

v. Folsom, 242 F.2d 516 (3d Cir. 1957).

Under the amendment, the successor is automatically substituted

as a party without an application or showing of need to continue

the action. An order of substitution is not required, but may be

entered at any time if a party desires or the court thinks fit.

The general term "public officer" is used in preference to the

enumeration which appears in the present rule. It comprises

Federal, State, and local officers.

The expression "in his official capacity" is to be interpreted in

its context as part of a simple procedural rule for substitution;

care should be taken not to distort its meaning by mistaken

analogies to the doctrine of sovereign immunity from suit or the

Eleventh Amendment. The amended rule will apply to all actions

brought by public officers for the government, and to any action

brought in form against a named officer, but intrinsically against

the government or the office or the incumbent thereof whoever he

may be from time to time during the action. Thus the amended rule

will apply to actions against officers to compel performance of

official duties or to obtain judicial review of their orders. It

will also apply to actions to prevent officers from acting in

excess of their authority or under authority not validly conferred,

cf. Philadelphia Co. v. Stimson, 223 U.S. 605 (1912), or from

enforcing unconstitutional enactments, cf. Ex parte Young, 209 U.S.

123 (1908); Ex parte La Prade, 289 U.S. 444 (1933). In general it

will apply whenever effective relief would call for corrective

behavior by the one then having official status and power, rather

than one who has lost that status and power through ceasing to hold

office. Cf. Land v. Dollar, 330 U.S. 731 (1947); Larson v. Domestic

& Foreign Commerce Corp., 337 U.S. 682 (1949). Excluded from the

operation of the amended rule will be the relatively infrequent

actions which are directed to securing money judgments against the

named officers enforceable against their personal assets; in these

cases Rule 25(a)(1), not Rule 25(d), applies to the question of

substitution. Examples are actions against officers seeking to make

them pay damages out of their own pockets for defamatory utterances

or other misconduct in some way related to the office, see Barr v.

Matteo, 360 U.S. 564 (1959); Howard v. Lyons, 360 U.S. 593 (1959);

Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 339

U.S. 949 (1950). Another example is the anomalous action for a tax

refund against a collector of internal revenue, see Ignelzi v.

Granger, 16 F.R.D. 517 (W.D.Pa. 1955), 28 U.S.C. Sec. 2006, 4

Moore, supra, ¶ 25.05, p. 531; but see 28 U.S.C. Sec.

1346(a)(1), authorizing the bringing of such suits against the

United States rather than the officer.

Automatic substitution under the amended rule, being merely a

procedural device for substituting a successor for a past

officeholder as a party, is distinct from and does not affect any

substantive issues which may be involved in the action. Thus a

defense of immunity from suit will remain in the case despite a

substitution.

Where the successor does not intend to pursue the policy of his

predecessor which gave rise to the lawsuit, it will be open to him,

after substitution, as plaintiff to seek voluntary dismissal of the

action, or as defendant to seek to have the action dismissed as

moot or to take other appropriate steps to avert a judgment or

decree. Contrast Ex parte La Prade, supra; Allen v. Regents of the

University System, 304 U.S. 439 (1938); McGrath v. National Assn.

of Mfgrs., 344 U.S. 804 (1952); Danenberg v. Cohen, 213 F.2d 944

(7th Cir. 1954).

As the present amendment of Rule 25(d)(1) eliminates a specified

time period to secure substitution of public officers, the

reference in Rule 6(b) (regarding enlargement of time) to Rule 25

will no longer apply to these public-officer substitutions.

As to substitution on appeal, the rules of the appellate courts

should be consulted.

Subdivision (d)(2). This provision, applicable in "official

capacity" cases as described above, will encourage the use of the

official title without any mention of the officer individually,

thereby recognizing the intrinsic character of the action and

helping to eliminate concern with the problem of substitution. If

for any reason it seems necessary or desirable to add the

individual's name, this may be done upon motion or on the court's

initiative without dismissal of the action; thereafter the

procedure of amended Rule 25(d)(1) will apply if the individual

named ceases to hold office.

For examples of naming the office or title rather than the

officeholder, see Annot., 102 A.L.R. 943, 948-52; Comment, 50

Mich.L.Rev. 443, 450 (1952); cf. 26 U.S.C. Sec. 7484. Where an

action is brought by or against a board or agency with continuity

of existence, it has been often decided that there is no need to

name the individual members and substitution is unnecessary when

the personnel changes. 4 Moore, supra, ¶ 25.09, p. 536. The

practice encouraged by amended Rule 25(d)(2) is similar.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

Present Rule 25(a)(1), together with present Rule 6(b), results

in an inflexible requirement that an action be dismissed as to a

deceased party if substitution is not carried out within a fixed

period measured from the time of the death. The hardships and

inequities of this unyielding requirement plainly appear from the

cases. See e.g., Anderson v. Yungkau, 329 U.S. 482, 67 S.Ct. 428,

91 L.Ed. 436 (1947); Iovino v. Waterson, 274 F.2d 41 (1959), cert.

denied, Carlin v. Sovino, 362 U.S. 949, 80 S.Ct. 860, 4 L.Ed.2d 867

(1960); Perry v. Allen, 239 F.2d 107 (5th Cir. 1956); Starnes v.

Pennsylvania R.R., 26 F.R.D. 625 (E.D.N.Y.), aff'd per curiam, 295

F.2d 704 (2d Cir. 1961), cert. denied, 369 U.S. 813, 82 S.Ct. 688,

7 L.Ed.2d 612 (1962); Zdanok v. Glidden Co., 28 F.R.D. 346

(S.D.N.Y. 1961). See also 4 Moore's Federal Practice ¶

25.01[9] (Supp. 1960); 2 Barron & Holtzoff, Federal Practice &

Procedure Sec. 621, at 420-21 (Wright ed. 1961).

The amended rule establishes a time limit for the motion to

substitute based not upon the time of the death, but rather upon

the time information of the death as provided by the means of a

suggestion of death upon the record, i.e., service of a statement

of the fact of the death. Cf. Ill.Ann.Stat., ch. 110, Sec. 54(2)

(Smith-Hurd 1956). The motion may not be made later than 90 days

after the service of the statement unless the period is extended

pursuant to Rule 6(b), as amended. See the Advisory Committee's

Note to amended Rule 6(b). See also the new Official Form 30.

A motion to substitute may be made by any party or by the

representative of the deceased party without awaiting the

suggestion of death. Indeed, the motion will usually be so made. If

a party or the representative of the deceased party desires to

limit the time within which another may make the motion, he may do

so by suggesting the death upon the record.

A motion to substitute made within the prescribed time will

ordinarily be granted, but under the permissive language of the

first sentence of the amended rule ("the court may order") it may

be denied by the court in the exercise of a sound discretion if

made long after the death - as can occur if the suggestion of death

is not made or is delayed - and circumstances have arisen rendering

it unfair to allow substitution. Cf. Anderson v. Yungkau, supra,

329 U.S. at 485, 486, 67 S.Ct. at 430, 431, 91 L.Ed. 436, where it

was noted under the present rule that settlement and distribution

of the state of a deceased defendant might be so far advanced as to

warrant denial of a motion for substitution even though made within

the time limit prescribed by that rule. Accordingly, a party

interested in securing substitution under the amended rule should

not assume that he can rest indefinitely awaiting the suggestion of

death before he makes his motion to substitute.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX V. DEPOSITIONS AND DISCOVERY 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

V. DEPOSITIONS AND DISCOVERY

-HEAD-

V. DEPOSITIONS AND DISCOVERY

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENTS TO DISCOVERY

RULES

This statement is intended to serve as a general introduction to

the amendments of Rules 26-37, concerning discovery, as well as

related amendments of other rules. A separate note of customary

scope is appended to amendments proposed for each rule. This

statement provides a framework for the consideration of individual

rule changes.

CHANGES IN THE DISCOVERY RULES

The discovery rules, as adopted in 1938, were a striking and

imaginative departure from tradition. It was expected from the

outset that they would be important, but experience has shown them

to play an even larger role than was initially foreseen. Although

the discovery rules have been amended since 1938, the changes were

relatively few and narrowly focused, made in order to remedy

specific defects. The amendments now proposed reflect the first

comprehensive review of the discovery rules undertaken since 1938.

These amendments make substantial changes in the discovery rules.

Those summarized here are among the more important changes.

Scope of Discovery. New provisions are made and existing

provisions changed affecting the scope of discovery: (1) The

contents of insurance policies are made discoverable (Rule

26(b)(2)). (2) A showing of good cause is no longer required for

discovery of documents and things and entry upon land (Rule 34).

However, a showing of need is required for discovery of "trial

preparation" materials other than a party's discovery of his own

statement and a witness' discovery of his own statement; and

protection is afforded against disclosure in such documents of

mental impressions, conclusions, opinions, or legal theories

concerning the litigation. (Rule 26(b)(3)). (3) Provision is made

for discovery with respect to experts retained for trial

preparation, and particularly those experts who will be called to

testify at trial (Rule 26(b)(4)). (4) It is provided that

interrogatories and requests for admission are not objectionable

simply because they relate to matters of opinion or contention,

subject of course to the supervisory power of the court (Rules

33(b), 36(a)). (5) Medical examination is made available as to

certain nonparties. (Rule 35(a)).

Mechanics of Discovery. A variety of changes are made in the

mechanics of the discovery process, affecting the sequence and

timing of discovery, the respective obligations of the parties with

respect to requests, responses, and motions for court orders, and

the related powers of the court to enforce discovery requests and

to protect against their abusive use. A new provision eliminates

the automatic grant of priority in discovery to one side (Rule

26(d)). Another provides that a party is not under a duty to

supplement his responses to requests for discovery, except as

specified (Rule 26(e)).

Other changes in the mechanics of discovery are designed to

encourage extrajudicial discovery with a minimum of court

intervention. Among these are the following: (1) The requirement

that a plaintiff seek leave of court for early discovery requests

is eliminated or reduced, and motions for a court order under Rule

34 are made unnecessary. Motions under Rule 35 are continued. (2)

Answers and objections are to be served together and an enlargement

of the time for response is provided. (3) The party seeking

discovery, rather than the objecting party, is made responsible for

invoking judicial determination of discovery disputes not resolved

by the parties. (4) Judicial sanctions are tightened with respect

to unjustified insistence upon or objection to discovery. These

changes bring Rules 33, 34, and 36 substantially into line with the

procedure now provided for depositions.

Failure to amend Rule 35 in the same way is based upon two

considerations. First, the Columbia Survey (described below) finds

that only about 5 percent of medical examinations require court

motions, of which about half result in court orders. Second and of

greater importance, the interest of the person to be examined in

the privacy of his person was recently stressed by the Supreme

Court in Schlagenhauf v. Holder, 379 U.S. 104 (1964). The court

emphasized the trial judge's responsibility to assure that the

medical examination was justified, particularly as to its scope.

Rearrangement of Rules. A limited rearrangement of the discovery

rules has been made, whereby certain provisions are transferred

from one rule to another. The reasons for this rearrangement are

discussed below in a separate section of this statement, and the

details are set out in a table at the end of this statement.

Optional Procedures. In two instances, new optional procedures

have been made available. A new procedure is provided to a party

seeking to take the deposition of a corporation or other

organization (Rule 30(b)(6)). A party on whom interrogatories have

been served requesting information derivable from his business

records may under specified circumstances produce the records

rather than give answers (Rule 33(c)).

Other Changes. This summary of changes is by no means exhaustive.

Various changes have been made in order to improve, tighten, or

clarify particular provisions, to resolve conflicts in the case

law, and to improve language. All changes, whether mentioned here

or not, are discussed in the appropriate note for each rule.

A FIELD SURVEY OF DISCOVERY PRACTICE

Despite widespread acceptance of discovery as an essential part

of litigation, disputes have inevitably arisen concerning the

values claimed for discovery and abuses alleged to exist. Many

disputes about discovery relate to particular rule provisions or

court decisions and can be studied in traditional fashion with a

view to specific amendment. Since discovery is in large measure

extra-judicial, however, even these disputes may be enlightened by

a study of discovery "in the field." And some of the larger

questions concerning discovery can be pursued only by a study of

its operation at the law office level and in unreported cases.

The Committee, therefore, invited the Project for Effective

Justice of Columbia Law School to conduct a field survey of

discovery. Funds were obtained from the Ford Foundation and the

Walter E. Meyer Research Institute of Law, Inc. The survey was

carried on under the direction of Prof. Maurice Rosenberg of

Columbia Law School. The Project for Effective Justice has

submitted a report to the Committee entitled "Field Survey of

Federal Pretrial Discovery" (hereafter referred to as the Columbia

Survey). The Committee is deeply grateful for the benefit of this

extensive undertaking and is most appreciative of the cooperation

of the Project and the funding organizations. The Committee is

particularly grateful to Professor Rosenberg who not only directed

the survey but has given much time in order to assist the Committee

in assessing the results.

The Columbia Survey concludes, in general, that there is no

empirical evidence to warrant a fundamental change in the

philosophy of the discovery rules. No widespread or profound

failings are disclosed in the scope or availability of discovery.

The costs of discovery do not appear to be oppressive, as a general

matter, either in relation to ability to pay or to the stakes of

the litigation. Discovery frequently provides evidence that would

not otherwise be available to the parties and thereby makes for a

fairer trial or settlement. On the other hand, no positive evidence

is found that discovery promotes settlement.

More specific findings of the Columbia Survey are described in

other Committee notes, in relation to particular rule provisions

and amendments. Those interested in more detailed information may

obtain it from the Project for Effective Justice.

REARRANGEMENT OF THE DISCOVERY RULES

The present discovery rules are structured entirely in terms of

individual discovery devices, except for Rule 27 which deals with

perpetuation of testimony, and Rule 37 which provides sanctions to

enforce discovery. Thus, Rules 26 and 28 to 32 are in terms

addressed only to the taking of a deposition of a party or third

person. Rules 33 to 36 then deal in succession with four additional

discovery devices: Written interrogatories to parties, production

for inspection of documents and things, physical or mental

examination and requests for admission.

Under the rules as promulgated in 1938, therefore, each of the

discovery devices was separate and self-contained. A defect of this

arrangement is that there is no natural location in the discovery

rules for provisions generally applicable to all discovery or to

several discovery devices. From 1938 until the present, a few

amendments have applied a discovery provision to several rules. For

example, in 1948, the scope of deposition discovery in Rule 26(b)

and the provision for protective orders in Rule 30(b) were

incorporated by reference in Rules 33 and 34. The arrangement was

adequate so long as there were few provisions governing discovery

generally and these provisions were relatively simple.

As will be seen, however, a series of amendments are now proposed

which govern most or all of the discovery devices. Proposals of a

similar nature will probably be made in the future. Under these

circumstances, it is very desirable, even necessary, that the

discovery rules contain one rule addressing itself to discovery

generally.

Rule 26 is obviously the most appropriate rule for this purpose.

One of its subdivisions, Rule 26(b), in terms governs only scope of

deposition discovery, but it has been expressly incorporated by

reference in Rules 33 and 34 and is treated by courts as setting a

general standard. By means of a transfer to Rule 26 of the

provisions for protective orders now contained in Rule 30(b), and a

transfer from Rule 26 of provisions addressed exclusively to

depositions, Rule 26 is converted into a rule concerned with

discovery generally. It becomes a convenient vehicle for the

inclusion of new provisions dealing with the scope, timing, and

regulation of discovery. Few additional transfers are needed. See

table showing rearrangement of rules, set out below.

There are, to be sure, disadvantages in transferring any

provision from one rule to another. Familiarity with the present

pattern, reinforced by the references made by prior court decisions

and the various secondary writings about the rules, is not lightly

to be sacrificed. Revision of treatises and other references works

is burdensome and costly. Moreover, many States have adopted the

existing pattern as a model for their rules.

On the other hand, the amendments now proposed will in any event

require revision of texts and reference works as well as

reconsideration by States following the Federal model. If these

amendments are to be incorporated in an understandable way, a rule

with general discovery provisions is needed. As will be seen, the

proposed rearrangement produces a more coherent and intelligible

pattern for the discovery rules taken as a whole. The difficulties

described are those encountered whenever statutes are reexamined

and revised. Failure to rearrange the discovery rules now would

freeze the present scheme, making future change even more

difficult.

TABLE SHOWING REARRANGEMENT OF RULES

--------------------------------------------------------------------

Existing Rule No. New Rule No.

--------------------------------------------------------------------

26(a) 30(a), 31(a)

26(c) 30(c)

26(d) 32(a)

26(e) 32(b)

26(f) 32(c)

30(a) 30(b)

30(b) 26(c)

32 32(d)

--------------------------------------------------------------------

-End-

-CITE-

28 USC APPENDIX Rule 26 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 26. General Provisions Governing Discovery; Duty of Disclosure

-STATUTE-

(a) Required Disclosures; Methods to Discover Additional Matter.

(1) Initial Disclosures. Except in categories of proceedings

specified in Rule 26(a)(1)(E), or to the extent otherwise

stipulated or directed by order, a party must, without awaiting a

discovery request, provide to other parties:

(A) the name and, if known, the address and telephone number

of each individual likely to have discoverable information that

the disclosing party may use to support its claims or defenses,

unless solely for impeachment, identifying the subjects of the

information;

(B) a copy of, or a description by category and location of,

all documents, data compilations, and tangible things that are

in the possession, custody, or control of the party and that

the disclosing party may use to support its claims or defenses,

unless solely for impeachment;

(C) a computation of any category of damages claimed by the

disclosing party, making available for inspection and copying

as under Rule 34 the documents or other evidentiary material,

not privileged or protected from disclosure, on which such

computation is based, including materials bearing on the nature

and extent of injuries suffered; and

(D) for inspection and copying as under Rule 34 any insurance

agreement under which any person carrying on an insurance

business may be liable to satisfy part or all of a judgment

which may be entered in the action or to indemnify or reimburse

for payments made to satisfy the judgment.

(E) The following categories of proceedings are exempt from

initial disclosure under Rule 26(a)(1):

(i) an action for review on an administrative record;

(ii) a petition for habeas corpus or other proceeding to

challenge a criminal conviction or sentence;

(iii) an action brought without counsel by a person in

custody of the United States, a state, or a state

subdivision;

(iv) an action to enforce or quash an administrative

summons or subpoena;

(v) an action by the United States to recover benefit

payments;

(vi) an action by the United States to collect on a student

loan guaranteed by the United States;

(vii) a proceeding ancillary to proceedings in other

courts; and

(viii) an action to enforce an arbitration award.

These disclosures must be made 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 objects during the

conference that initial disclosures are not appropriate in the

circumstances of the action and states the objection in the Rule

26(f) discovery plan. In ruling on the objection, the court must

determine what disclosures - if any - are to be made, and set the

time for disclosure. Any party first served or otherwise joined

after the Rule 26(f) conference must make these disclosures

within 30 days after being served or joined unless a different

time is set by stipulation or court order. A party must make its

initial disclosures based on the information then reasonably

available to it and is not excused from making its disclosures

because it has not fully completed its investigation of the case

or because it challenges the sufficiency of another party's

disclosures or because another party has not made its

disclosures.

(2) Disclosure of Expert Testimony.

(A) In addition to the disclosures required by paragraph (1),

a party shall disclose to other parties the identity of any

person who may be used at trial to present evidence under Rules

702, 703, or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulated or directed by the court,

this disclosure shall, with respect to a witness who is

retained or specially employed to provide expert testimony in

the case or whose duties as an employee of the party regularly

involve giving expert testimony, be accompanied by a written

report prepared and signed by the witness. The report shall

contain a complete statement of all opinions to be expressed

and the basis and reasons therefor; the data or other

information considered by the witness in forming the opinions;

any exhibits to be used as a summary of or support for the

opinions; the qualifications of the witness, including a list

of all publications authored by the witness within the

preceding ten years; the compensation to be paid for the study

and testimony; and a listing of any other cases in which the

witness has testified as an expert at trial or by deposition

within the preceding four years.

(C) These disclosures shall be made at the times and in the

sequence directed by the court. In the absence of other

directions from the court or stipulation by the parties, the

disclosures shall be made at least 90 days before the trial

date or the date the case is to be ready for trial or, if the

evidence is intended solely to contradict or rebut evidence on

the same subject matter identified by another party under

paragraph (2)(B), within 30 days after the disclosure made by

the other party. The parties shall supplement these disclosures

when required under subdivision (e)(1).

(3) Pretrial Disclosures. In addition to the disclosures

required by Rule 26(a)(1) and (2), a party must provide to other

parties and promptly file with the court the following

information regarding the evidence that it may present at trial

other than solely for impeachment:

(A) the name and, if not previously provided, the address and

telephone number of each witness, separately identifying those

whom the party expects to present and those whom the party may

call if the need arises;

(B) the designation of those witnesses whose testimony is

expected to be presented by means of a deposition and, if not

taken stenographically, a transcript of the pertinent portions

of the deposition testimony; and

(C) an appropriate identification of each document or other

exhibit, including summaries of other evidence, separately

identifying those which the party expects to offer and those

which the party may offer if the need arises.

Unless otherwise directed by the court, these disclosures must be

made at least 30 days before trial. Within 14 days thereafter,

unless a different time is specified by the court, a party may

serve and promptly file a list disclosing (i) any objections to

the use under Rule 32(a) of a deposition designated by another

party under Rule 26(a)(3)(B), and (ii) any objection, together

with the grounds therefor, that may be made to the admissibility

of materials identified under Rule 26(a)(3)(C). Objections not so

disclosed, other than objections under Rules 402 and 403 of the

Federal Rules of Evidence, are waived unless excused by the court

for good cause.

(4) Form of Disclosures. Unless the court orders otherwise, all

disclosures under Rules 26(a)(1) through (3) must be made in

writing, signed, and served.

(5) Methods to Discover Additional Matter. Parties may obtain

discovery by one or more of the following methods: depositions

upon oral examination or written questions; written

interrogatories; production of documents or things or permission

to enter upon land or other property under Rule 34 or

45(a)(1)(C), for inspection and other purposes; physical and

mental examinations; and requests for admission.

(b) Discovery Scope and Limits. Unless otherwise limited by order

of the court in accordance with these rules, the scope of discovery

is as follows:

(1) In General. Parties may obtain discovery regarding any

matter, not privileged, that is relevant to the claim or defense

of any party, including the existence, description, nature,

custody, condition, and location of any books, documents, or

other tangible things and the identity and location of persons

having knowledge 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)(i), (ii), and (iii).

(2) Limitations. By order, the court may alter the limits in

these rules on the number of depositions and interrogatories or

the length of depositions under Rule 30. By order or local rule,

the court may also limit the number of requests under Rule 36.

The frequency or extent of use of the discovery methods otherwise

permitted under these rules and by any local rule shall be

limited by the court if it determines that: (i) the discovery

sought is unreasonably cumulative or duplicative, or is

obtainable from some other source that is more convenient, less

burdensome, or less expensive; (ii) the party seeking discovery

has had ample opportunity by discovery in the action to obtain

the information sought; or (iii) the burden or expense of the

proposed discovery outweighs its likely benefit, taking into

account the needs of the case, the amount in controversy, the

parties' resources, the importance of the issues at stake in the

litigation, and the importance of the proposed discovery in

resolving the issues. The court may act upon its own initiative

after reasonable notice or pursuant to a motion under Rule 26(c).

(3) Trial Preparation: Materials. Subject to the provisions of

subdivision (b)(4) of this rule, a party may obtain discovery of

documents and tangible things otherwise discoverable under

subdivision (b)(1) of this rule and prepared in anticipation of

litigation or for trial by or for another party or by or for that

other party's representative (including the other party's

attorney, consultant, surety, indemnitor, insurer, or agent) only

upon a showing that the party seeking discovery has substantial

need of the materials in the preparation of the party's case and

that the party is unable without undue hardship to obtain the

substantial equivalent of the materials by other means. In

ordering discovery of such materials when the required showing

has been made, the court shall protect against disclosure of the

mental impressions, conclusions, opinions, or legal theories of

an attorney or other representative of a party concerning the

litigation.

A party may obtain without the required showing a statement

concerning the action or its subject matter previously made by

that party. Upon request, a person not a party may obtain without

the required showing a statement concerning the action or its

subject matter previously made by that person. If the request is

refused, the person may move for a court order. The provisions of

Rule 37(a)(4) apply to the award of expenses incurred in relation

to the motion. For purposes of this paragraph, a statement

previously made is (A) a written statement signed or otherwise

adopted or approved by the person making it, or (B) a

stenographic, mechanical, electrical, or other recording, or a

transcription thereof, which is a substantially verbatim recital

of an oral statement by the person making it and

contemporaneously recorded.

(4) Trial Preparation: Experts.

(A) A party may depose any person who has been identified as

an expert whose opinions may be presented at trial. If a report

from the expert is required under subdivision (a)(2)(B), the

deposition shall not be conducted until after the report is

provided.

(B) A party may, through interrogatories or by deposition,

discover facts known or opinions held by an expert who has been

retained or specially employed by another party in anticipation

of litigation or preparation for trial and who is not expected

to be called as a witness at trial only as provided in Rule

35(b) or upon a showing of exceptional circumstances under

which it is impracticable for the party seeking discovery to

obtain facts or opinions on the same subject by other means.

(C) Unless manifest injustice would result, (i) the court

shall require that the party seeking discovery pay the expert a

reasonable fee for time spent in responding to discovery under

this subdivision; and (ii) with respect to discovery obtained

under subdivision (b)(4)(B) of this rule the court shall

require the party seeking discovery to pay the other party a

fair portion of the fees and expenses reasonably incurred by

the latter party in obtaining facts and opinions from the

expert.

(5) Claims of Privilege or Protection of Trial Preparation

Materials. When a party withholds information otherwise

discoverable under these rules by claiming that it is privileged

or subject to protection as trial preparation material, the party

shall make the claim expressly and shall describe the nature of

the documents, communications, or things not produced or

disclosed in a manner that, without revealing information itself

privileged or protected, will enable other parties to assess the

applicability of the privilege or protection.

(c) Protective Orders. Upon motion by a party or by the person

from whom discovery is sought, accompanied by a certification that

the movant has in good faith conferred or attempted to confer with

other affected parties in an effort to resolve the dispute without

court action, and for good cause shown, the court in which the

action is pending or alternatively, on matters relating to a

deposition, the court in the district where the deposition is to be

taken may make any order which justice requires to protect a party

or person from annoyance, embarrassment, oppression, or undue

burden or expense, including one or more of the following:

(1) that the disclosure or discovery not be had;

(2) that the disclosure or discovery may be had only on

specified terms and conditions, including a designation of the

time or place;

(3) that the discovery may be had only by a method of discovery

other than that selected by the party seeking discovery;

(4) that certain matters not be inquired into, or that the

scope of the disclosure or discovery be limited to certain

matters;

(5) that discovery be conducted with no one present except

persons designated by the court;

(6) that a deposition, after being sealed, be opened only by

order of the court;

(7) that a trade secret or other confidential research,

development, or commercial information not be revealed or be

revealed only in a designated way; and

(8) that the parties simultaneously file specified documents or

information enclosed in sealed envelopes to be opened as directed

by the court.

If the motion for a protective order is denied in whole or in part,

the court may, on such terms and conditions as are just, order that

any party or other person provide or permit discovery. The

provisions of Rule 37(a)(4) apply to the award of expenses incurred

in relation to the motion.

(d) Timing and Sequence of Discovery. Except in categories of

proceedings exempted from initial disclosure under Rule

26(a)(1)(E), or when authorized under these rules or by order or

agreement of the parties, a party may not seek discovery from any

source before the parties have conferred as required by Rule 26(f).

Unless the court upon motion, for the convenience of parties and

witnesses and in the interests of justice, orders otherwise,

methods of discovery may be used in any sequence, and the fact that

a party is conducting discovery, whether by deposition or

otherwise, does not operate to delay any other party's discovery.

(e) Supplementation of Disclosures and Responses. A party who has

made a disclosure under subdivision (a) or responded to a request

for discovery with a disclosure or response is under a duty to

supplement or correct the disclosure or response to include

information thereafter acquired if ordered by the court or in the

following circumstances:

(1) A party is under a duty to supplement at appropriate

intervals its disclosures under subdivision (a) if the party

learns that in some material respect the information disclosed 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. With respect

to testimony of an expert from whom a report is required under

subdivision (a)(2)(B) the duty extends both to information

contained in the report and to information provided through a

deposition of the expert, and any additions or other changes to

this information shall be disclosed by the time the party's

disclosures under Rule 26(a)(3) are due.

(2) A party is under a duty seasonably to amend a prior

response to an interrogatory, request for production, or request

for admission if the party learns that the response is in some

material respect 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.

(f) Conference of Parties; Planning for Discovery. Except in

categories of proceedings exempted from initial disclosure under

Rule 26(a)(1)(E) or when otherwise ordered, the parties must, as

soon as practicable and in any event at least 21 days before a

scheduling conference is held or a scheduling order is due under

Rule 16(b), confer to consider the nature and basis of their claims

and defenses and the possibilities for a prompt settlement or

resolution of the case, to make or arrange for the disclosures

required by Rule 26(a)(1), and to develop a proposed discovery plan

that indicates the parties' views and proposals concerning:

(1) what changes should be made in the timing, form, or

requirement for disclosures under Rule 26(a), including a

statement as to when disclosures under Rule 26(a)(1) were made or

will be made;

(2) the subjects on which discovery may be needed, when

discovery should be completed, and whether discovery should be

conducted in phases or be limited to or focused upon particular

issues;

(3) what changes should be made in the limitations on discovery

imposed under these rules or by local rule, and what other

limitations should be imposed; and

(4) any other orders that should be entered by the court under

Rule 26(c) or under Rule 16(b) and (c).

The attorneys of record and all unrepresented parties that have

appeared in the case are jointly responsible for arranging the

conference, for attempting in good faith to agree on the proposed

discovery plan, and for submitting to the court within 14 days

after the conference a written report outlining the plan. A court

may order that the parties or attorneys attend the conference in

person. If necessary to comply with its expedited schedule for Rule

16(b) conferences, a court may by local rule (i) require that the

conference between the parties occur fewer than 21 days before the

scheduling conference is held or a scheduling order is due under

Rule 16(b), and (ii) require that the written report outlining the

discovery plan be filed fewer than 14 days after the conference

between the parties, or excuse the parties from submitting a

written report and permit them to report orally on their discovery

plan at the Rule 16(b) conference.

(g) Signing of Disclosures, Discovery Requests, Responses, and

Objections.

(1) Every disclosure made pursuant to subdivision (a)(1) or

subdivision (a)(3) shall be signed by at least one attorney of

record in the attorney's individual name, whose address shall be

stated. An unrepresented party shall sign the disclosure and

state the party's address. The signature of the attorney or party

constitutes a certification that to the best of the signer's

knowledge, information, and belief, formed after a reasonable

inquiry, the disclosure is complete and correct as of the time it

is made.

(2) Every discovery request, response, or objection made by a

party represented by an attorney shall be signed by at least one

attorney of record in the attorney's individual name, whose

address shall be stated. An unrepresented party shall sign the

request, response, or objection and state the party's address.

The signature of the attorney or party constitutes a

certification that to the best of the signer's knowledge,

information, and belief, formed after a reasonable inquiry, the

request, response, or objection is:

(A) consistent with these rules and warranted by existing law

or a good faith argument for the extension, modification, or

reversal of existing law;

(B) not interposed for any improper purpose, such as to

harass or to cause unnecessary delay or needless increase in

the cost of litigation; and

(C) not unreasonable or unduly burdensome or expensive, given

the needs of the case, the discovery already had in the case,

the amount in controversy, and the importance of the issues at

stake in the litigation.

If a request, response, or objection is not signed, it shall be

stricken unless it is signed promptly after the omission is

called to the attention of the party making the request,

response, or objection, and a party shall not be obligated to

take any action with respect to it until it is signed.

(3) If without substantial justification a certification is

made in violation of the rule, the court, upon motion or upon its

own initiative, shall impose upon the person who made the

certification, the party on whose behalf the disclosure, request,

response, or objection is made, or both, an appropriate sanction,

which may include an order to pay the amount of the reasonable

expenses incurred because of the violation, including a

reasonable attorney's fee.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.

July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 30, 1970, eff.

July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 28, 1983, eff.

Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff.

Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). This rule freely authorizes the taking

of depositions under the same circumstances and by the same methods

whether for the purpose of discovery or for the purpose of

obtaining evidence. Many states have adopted this practice on

account of its simplicity and effectiveness, safeguarding it by

imposing such restrictions upon the subsequent use of the

deposition at the trial or hearing as are deemed advisable. See

Ark.Civ.Code (Crawford, 1934) Secs. 606-607; Calif.Code Civ.Proc.

(Deering, 1937) Sec. 2021; 1 Colo.Stat.Ann. (1935) Code Civ.Proc.

Sec. 376; Idaho Code Ann. (1932) Sec. 16-906; Ill. Rules of Pract.,

Rule 19 (Ill.Rev.Stat. (1937) ch. 110, Sec. 259.19); Ill.Rev.Stat.

(1937) ch. 51, Sec. 24; 2 Ind.Stat.Ann. (Burns, 1933) Secs. 2-1501,

2-1506; Ky.Codes (Carroll, 1932) Civ.Pract. Sec. 557; 1

Mo.Rev.Stat. (1929) Sec. 1753; 4 Mont.Rev.Codes Ann. (1935) Sec.

10645; Neb.Comp.Stat. (1929) ch. 20, Secs. 1246-7; 4 Nev.Comp.Laws

(Hillyer, 1929) Sec. 9001; 2 N.H.Pub.Laws (1926) ch. 337, Sec. 1;

N.C.Code Ann. (1935) Sec. 1809; 2 N.D.Comp.Laws Ann. (1913) Secs.

7889-7897; 2 Ohio Gen.Code Ann. (Page, 1926) Secs. 11525-6; 1

Ore.Code Ann. (1930) Title 9, Sec. 1503; 1 S.D.Comp.Laws (1929)

Secs. 2713-16; Tex.Stat. (Vernon, 1928) arts. 3738, 3752, 3769;

Utah Rev.Stat.Ann. (1933) Sec. 104-51-7; Wash. Rules of Practice

adopted by the Supreme Ct., Rule 8, 2 Wash.Rev.Stat.Ann.

(Remington, 1932) Sec. 308-8; W.Va.Code (1931) ch. 57, art. 4, Sec.

1. Compare [former] Equity Rules 47 (Depositions - To be Taken in

Exceptional Instances); 54 (Depositions Under Revised Statutes,

Sections 863, 865, 866, 867 - Cross-Examination); 58 (Discovery -

Interrogatories - Inspection and Production of Documents -

Admission of Execution or Genuineness).

This and subsequent rules incorporate, modify, and broaden the

provisions for depositions under U.S.C., Title 28, [former] Secs.

639 (Depositions de bene esse; when and where taken; notice), 640

(Same; mode of taking), 641 (Same; transmission to court), 644

(Depositions under dedimus potestatem and in perpetuam), 646

(Deposition under dedimus potestatem; how taken). These statutes

are superseded insofar as they differ from this and subsequent

rules. U.S.C., Title 28, [former] Sec. 643 (Depositions; taken in

mode prescribed by State laws) is superseded by the third sentence

of Subdivision (a).

While a number of states permit discovery only from parties or

their agents, others either make no distinction between parties or

agents of parties and ordinary witnesses, or authorize the taking

of ordinary depositions, without restriction, from any persons who

have knowledge of relevant facts. See Ark.Civ.Code (Crawford, 1934)

Secs. 606-607; 1 Idaho Code Ann. (1932) Sec. 16-906; Ill. Rules of

Pract., Rule 19 (Ill.Rev.Stat. (1937) ch. 110, Sec. 259.19);

Ill.Rev.Stat. (1937) ch. 51, Sec. 24; 2 Ind.Stat.Ann. (Burns, 1933)

Sec. 2-1501; Ky.Codes (Carroll, 1932) Civ.Pract. Secs. 554-558; 2

Md.Ann.Code (Bagby, 1924) Art. 35, Sec. 21; 2 Minn.Stat. (Mason,

1927) Sec. 9820; 1 Mo.Rev.Stat. (1929) Secs. 1753, 1759;

Neb.Comp.Stat. (1929) ch. 20, Secs. 1246-7; 2 N.H.Pub.Laws (1926)

ch. 337, Sec. 1; 2 N.D.Comp.Laws Ann. (1913) Sec. 7897; 2 Ohio

Gen.Code Ann. (Page, 1926) Secs. 11525-6; 1 S.D.Comp.Laws (1929)

Secs. 2713-16; Tex.Stat. (Vernon, 1928) arts. 3738, 3752, 3769;

Utah Rev.Stat.Ann. (1933) Sec. 104-51-7; Wash. Rules of Practice

adopted by Supreme Ct., Rule 8, 2 Wash.Rev.Stat.Ann. (Remington,

1932) Sec. 308-8; W.Va.Code (1931) ch. 57, art. 4, Sec. 1.

The more common practice in the United States is to take

depositions on notice by the party desiring them, without any order

from the court, and this has been followed in these rules. See

Calif.Code Civ.Proc. (Deering 1937) Sec. 2031; 2 Fla.Comp.Gen.Laws

Ann. (1927) Secs. 4405-7; 1 Idaho Code Ann. (1932) Sec. 16-902;

Ill. Rules of Pract., Rule 19 (Ill.Rev.Stat. (1937) ch. 110, Sec.

25919); Ill.Rev.Stat. (1937) ch. 51, Sec. 24; 2 Ind.Stat.Ann.

(Burns, 1933) Sec. 2-1502; Kan.Gen.Stat.Ann. (1935) Sec. 60-2827;

Ky.Codes (Carroll, 1932) Civ.Pract. Sec. 565; 2 Minn.Stat. (Mason,

1927) Sec. 9820; 1 Mo.Rev.Stat. (1929) Sec. 1761; 4 Mont.Rev.Codes

Ann. (1935) Sec. 10651; Nev.Comp.Laws (Hillyer, 1929) Sec. 9002;

N.C.Code Ann. (1935) Sec. 1809; 2 N.D.Comp.Laws Ann. (1913) Sec.

7895; Utah Rev.Stat.Ann. (1933) Sec. 104-51-8.

Note to Subdivision (b). While the old chancery practice limited

discovery to facts supporting the case of the party seeking it,

this limitation has been largely abandoned by modern legislation.

See Ala.Code Ann. (Michie, 1928) Secs. 7764-7773; 2 Ind.Stat.Ann.

(Burns, 1933) Secs. 2-1028, 2-1506, 2-1728-2-1732; Iowa Code (1935)

Sec. 11185; Ky.Codes (Carroll, 1932) Civ.Pract. Secs. 557, 606 (8);

La.Code Pract. (Dart, 1932) arts. 347-356; 2 Mass.Gen.Laws

(Ter.Ed., 1932) ch. 231, Secs. 61-67; 1 Mo.Rev.Stat. (1929) Secs.

1753, 1759; Neb.Comp.Stat. (1929) Secs. 20-1246, 20-1247; 2

N.H.Pub.Laws (1926) ch. 337, Sec. 1; 2 Ohio Gen.Code Ann. (Page,

1926) Secs. 11497, 11526; Tex.Stat. (Vernon, 1928) arts. 3738,

3753, 3769; Wis.Stat. (1935) Sec. 326.12; Ontario Consol.Rules of

Pract. (1928) Rules 237-347; Quebec Code of Civ.Proc. (Curran,

1922) Secs. 286-290.

Note to Subdivisions (d), (e), and (f). The restrictions here

placed upon the use of depositions at the trial or hearing are

substantially the same as those provided in U.S.C., Title 28,

[former] Sec. 641, for depositions taken, de bene esse, with the

additional provision that any deposition may be used when the court

finds the existence of exceptional circumstances. Compare English

Rules Under the Judicature Act (The Annual Practice, 1937) O. 37,

r. 18 (with additional provision permitting use of deposition by

consent of the parties). See also [former] Equity Rule 64 (Former

Depositions, Etc., May be Used Before Master); and 2 Minn. Stat.

(Mason, 1927) Sec. 9835 (Use in a subsequent action of a deposition

filed in a previously dismissed action between the same parties and

involving the same subject matter).

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

Subdivision (a). The amendment eliminates the requirement of

leave of court for the taking of a deposition except where a

plaintiff seeks to take a deposition within 20 days after the

commencement of the action. The retention of the requirement where

a deposition is sought by a plaintiff within 20 days of the

commencement of the action protects a defendant who has not had an

opportunity to retain counsel and inform himself as to the nature

of the suit; the plaintiff, of course, needs no such protection.

The present rule forbids the plaintiff to take a deposition,

without leave of court, before the answer is served. Sometimes the

defendant delays the serving of an answer for more than 20 days,

but as 20 days are sufficient time for him to obtain a lawyer,

there is no reason to forbid the plaintiff to take a deposition

without leave merely because the answer has not been served. In all

cases, Rule 30(a) empowers the court, for cause shown, to alter the

time of the taking of a deposition, and Rule 30(b) contains

provisions giving ample protection to persons who are unreasonably

pressed. The modified practice here adopted is along the line of

that followed in various states. See, e.g., 8 Mo.Rev.Stat.Ann.

(1939) Sec. 1917; 2 Burns' Ind.Stat.Ann. (1933) Sec. 2-1506.

Subdivision (b). The amendments to subdivision (b) make clear the

broad scope of examination and that it may cover not only evidence

for use at the trial but also inquiry into matters in themselves

inadmissible as evidence but which will lead to the discovery of

such evidence. The purpose of discovery is to allow a broad search

for facts, the names of witnesses, or any other matters which may

aid a party in the preparation or presentation of his case. Engl v.

Aetna Life Ins. Co. (C.C.A.2d, 1943) 139 F.(2d) 469; Mahler v.

Pennsylvania R. Co. (E.D.N.Y. 1945) 8 Fed.Rules Serv. 33.351, Case

1. In such a preliminary inquiry admissibility at trial should not

be the test as to whether the information sought is within the

scope of proper examination. Such a standard unnecessarily curtails

the utility of discovery practice. Of course, matters entirely

without bearing either as direct evidence or as leads to evidence

are not within the scope of inquiry, but to the extent that the

examination develops useful information, it functions successfully

as an instrument of discovery, even if it produces no testimony

directly admissible. Lewis v. United Air Lines Transportation Corp.

(D.Conn. 1939) 27 F.Supp. 946; Engl v. Aetna Life Ins. Co., supra;

Mahler v. Pennsylvania R. Co., supra; Bloomer v. Sirian Lamp Co.

(D.Del. 1944) 8 Fed.Rules Serv. 26b.31, Case 3; Rousseau v. Langley

(S.D.N.Y. 1945) 9 Fed.Rules Serv. 34.41, Case 1 (Rule 26

contemplates "examinations not merely for the narrow purpose of

adducing testimony which may be offered in evidence but also for

the broad discovery of information which may be useful in

preparation for trial."); Olson Transportation Co. v. Socony-Vacuum

Co. (E.D.Wis. 1944) 8 Fed.Rules Serv. 34.41, Case 2 (". . . the

Rules . . . permit 'fishing' for evidence as they should."); Note

(1945) 45 Col.L.Rev. 482. Thus hearsay, while inadmissible itself,

may suggest testimony which properly may be proved. Under Rule 26

(b) several cases, however, have erroneously limited discovery on

the basis of admissibility, holding that the word "relevant" in

effect meant "material and competent under the rules of evidence".

Poppino v. Jones Store Co. (W.D.Mo. 1940) 3 Fed.Rules Serv. 26b.5,

Case 1; Benevento v. A. & P. Food Stores, Inc. (E.D.N.Y. 1939) 26

F.Supp. 424. Thus it has been said that inquiry might not be made

into statements or other matters which, when disclosed, amounted

only to hearsay. See Maryland for use of Montvila v. Pan-American

Bus Lines, Inc. (D.Md. 1940) 3 Fed.Rules Serv. 26b.211, Case 3;

Gitto v. "Italia," Societa Anonima Di Navigazione (E.D.N.Y. 1940)

31 F.Supp. 567; Rose Silk Mills, Inc. v. Insurance Co. of North

America (S.D.N.Y. 1939) 29 F.Supp. 504; Colpak v. Hetterick

(E.D.N.Y. 1941) 40 F.Supp. 350; Matthies v. Peter F. Connolly Co.

(E.D.N.Y. 1941) 6 Fed.Rules Serv. 30a.22, Case 1, 2 F.R.D. 277;

Matter of Examination of Citizens Casualty Co. of New York

(S.D.N.Y. 1942) 7 Fed.Rules Serv. 26b.211, Case 1; United States v.

Silliman (D.N.J. 1944) 8 Fed.Rules Serv. 26b.52, Case 1. The

contrary and better view, however, has often been stated. See,

e.g., Engl v. Aetna Life Ins. Co., supra; Stevenson v. Melady

(S.D.N.Y. 1940) 3 Fed.Rules Serv. 26b.31, Case 1, 1 F.R.D. 329;

Lewis v. United Air Lines Transport Corp., supra; Application of

Zenith Radio Corp. (E.D.Pa. 1941) 4 Fed.Rules Serv. 30b.21, Case 1,

1 F.R.D. 627; Steingut v. Guaranty Trust Co. of New York (S.D.N.Y.

1941) 4 Fed.Rules Serv. 26b.5. Case 2; DeSeversky v. Republic

Aviation Corp (E.D.N.Y. 1941) 5 Fed.Rules Serv. 26b.31, Case 5;

Moore v. George A. Hormel & Co. (S.D.N.Y. 1942) 6 Fed.Rules Serv.

30b.41, Case 1, 2 F.R.D. 340; Hercules Powder Co. v. Rohm & Haas

Co. (D.Del. 1943) 7 Fed.Rules Serv. 45b.311, Case 2, 3 F.R.D. 302;

Bloomer v. Sirian Lamp Co., supra; Crosby Steam Gage & Valve Co. v.

Manning, Maxwell & Moore, Inc. (D.Mass. 1944) 8 Fed.Rules Serv.

26b.31, Case 1; Patterson Oil Terminals, Inc. v. Charles Kurz &

Co., Inc. (E.D.Pa. 1945) 9 Fed.Rules Serv. 33.321, Case 2; Pueblo

Trading Co. v. Reclamation Dist. No. 1500 (N.D.Cal. 1945) 9

Fed.Rules Serv. 33.321, Case 4, 4 F.R.D. 471. See also discussion

as to the broad scope of discovery in Hoffman v. Palmer (C.C.A.2d,

1942) 129 F.(2d) 976, 995-997, aff'd on other grounds (1942) 318

U.S. 109; Note (1945) 45 Col.L.Rev. 482.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This amendment conforms to the amendment of Rule 28(b). See the

next-to-last paragraph of the Advisory Committee's Note to that

amendment.

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

The requirement that the plaintiff obtain leave of court in order

to serve notice of taking of a deposition within 20 days after

commencement of the action gives rises to difficulties when the

prospective deponent is about to become unavailable for

examination. The problem is not confined to admiralty, but has been

of special concern in that context because of the mobility of

vessels and their personnel. When Rule 26 was adopted as Admiralty

Rule 30A in 1961, the problem was alleviated by permitting

depositions de bene esse, for which leave of court is not required.

See Advisory Committee's Note to Admiralty Rule 30A (1961).

A continuing study is being made in the effort to devise a

modification of the 20-day rule appropriate to both the civil and

admiralty practice to the end that Rule 26(a) shall state a uniform

rule applicable alike to what are now civil actions and suits in

admiralty. Meanwhile, the exigencies of maritime litigation require

preservation, for the time being at least, of the traditional de

bene esse procedure for the post-unification counterpart of the

present suit in admiralty. Accordingly, the amendment provides for

continued availability of that procedure in admiralty and maritime

claims within the meaning of Rule 9(h).

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT

A limited rearrangement of the discovery rules is made, whereby

certain rule provisions are transferred, as follows: Existing Rule

26(a) is transferred to Rules 30(a) and 31(a). Existing Rule 26(c)

is transferred to Rule 30(c). Existing Rules 26(d), (e), and (f)

are transferred to Rule 32. Revisions of the transferred

provisions, if any, are discussed in the notes appended to Rules

30, 31, and 32. In addition, Rule 30(b) is transferred to Rule

26(c). The purpose of this rearrangement is to establish Rule 26 as

a rule governing discovery in general. (The reasons are set out in

the Advisory Committee's explanatory statement.)

Subdivision (a) - Discovery Devices. This is a new subdivision

listing all of the discovery devices provided in the discovery

rules and establishing the relationship between the general

provisions of Rule 26 and the specific rules for particular

discovery devices. The provision that the frequency of use of these

methods is not limited confirms existing law. It incorporates in

general form a provision now found in Rule 33.

Subdivision (b) - Scope of Discovery. This subdivision is recast

to cover the scope of discovery generally. It regulates the

discovery obtainable through any of the discovery devices listed in

Rule 26(a).

All provisions as to scope of discovery are subject to the

initial qualification that the court may limit discovery in

accordance with these rules. Rule 26(c) (transferred from 30(b))

confers broad powers on the courts to regulate or prevent discovery

even though the materials sought are within the scope of 26(b), and

these powers have always been freely exercised. For example, a

party's income tax return is generally held not privileged, 2A

Barron & Holtzoff, Federal Practice and Procedure, Sec. 65.2

(Wright ed. 1961), and yet courts have recognized that interests in

privacy may call for a measure of extra protection. E.g.,

Wiesenberger v. W. E. Hutton & Co., 35 F.R.D. 556 (S.D.N.Y. 1964).

Similarly, the courts have in appropriate circumstances protected

materials that are primarily of an impeaching character. These two

types of materials merely illustrate the many situations, not

capable of governance by precise rule, in which courts must

exercise judgment. The new subsections in Rule 26(d) do not change

existing law with respect to such situations.

Subdivision (b)(1) - In General. The language is changed to

provide for the scope of discovery in general terms. The existing

subdivision, although in terms applicable only to depositions, is

incorporated by reference in existing Rules 33 and 34. Since

decisions as to relevance to the subject matter of the action are

made for discovery purposes well in advance of trial, a flexible

treatment of relevance is required and the making of discovery,

whether voluntary or under court order, is not a concession or

determination of relevance for purposes of trial. Cf. 4 Moore's

Federal Practice ¶ 26-16[1] (2d ed. 1966).

Subdivision (b)(2) - Insurance Policies. Both cases and

commentators are sharply in conflict on the question whether

defendant's liability insurance coverage is subject to discovery in

the usual situation when the insurance coverage is not itself

admissible and does not bear on another issue on the case. Examples

of Federal cases requiring disclosure and supporting comments: Cook

v. Welty, 253 F.Supp. 875 (D.D.C. 1966) (cases cited); Johanek v.

Aberle, 27 F.R.D. 272 (D.Mont. 1961); Williams, Discovery of Dollar

Limits in Liability Policies in Automobile Tort Cases, 10

Ala.L.Rev. 355 (1958); Thode, Some Reflections on the 1957

Amendments to the Texas Rules, 37 Tex.L.Rev. 33, 40-42 (1958).

Examples of Federal cases refusing disclosure and supporting

comments: Bisserier v. Manning, 207 F.Supp. 476 (D.N.J. 1962);

Cooper v. Stender, 30 F.R.D. 389 (E.D.Tenn. 1962); Frank, Discovery

and Insurance Coverage, 1959 Ins.L.J. 281; Fournier, Pre-Trial

Discovery of Insurance Coverage and Limits, 28 Ford L.Rev. 215

(1959).

The division in reported cases is close. State decisions based on

provisions similar to the federal rules are similarly divided. See

cases collected in 2A Barron & Holtzoff, Federal Practice and

Procedure Sec. 647.1, nn. 45.5, 45.6 (Wright ed. 1961). It appears

to be difficult if not impossible to obtain appellate review of the

issue. Resolution by rule amendment is indicated. The question is

essentially procedural in that it bears upon preparation for trial

and settlement before trial, and courts confronting the question,

however, they have decided it, have generally treated it as

procedural and governed by the rules.

The amendment resolves this issue in favor of disclosure. Most of

the decisions denying discovery, some explicitly, reason from the

text of Rule 26(b) that it permits discovery only of matters which

will be admissible in evidence or appear reasonably calculated to

lead to such evidence; they avoid considerations of policy,

regarding them as foreclosed. See Bisserier v. Manning, supra. Some

note also that facts about a defendant's financial status are not

discoverable as such, prior to judgment with execution unsatisfied,

and fear that, if courts hold insurance coverage discoverable, they

must extend the principle to other aspects of the defendant's

financial status. The cases favoring disclosure rely heavily on the

practical significance of insurance in the decisions lawyers make

about settlement and trial preparation. In Clauss v. Danker, 264

F.Supp. 246 (S.D.N.Y. 1967), the court held that the rules forbid

disclosure but called for an amendment to permit it.

Disclosure of insurance coverage will enable counsel for both

sides to make the same realistic appraisal of the case, so that

settlement and litigation strategy are based on knowledge and not

speculation. It will conduce to settlement and avoid protracted

litigation in some cases, though in others it may have an opposite

effect. The amendment is limited to insurance coverage, which

should be distinguished from any other facts concerning defendant's

financial status (1) because insurance is an asset created

specifically to satisfy the claim; (2) because the insurance

company ordinarily controls the litigation; (3) because information

about coverage is available only from defendant or his insurer; and

(4) because disclosure does not involve a significant invasion of

privacy.

Disclosure is required when the insurer "may be liable" on part

or all of the judgment. Thus, an insurance company must disclose

even when it contests liability under the policy, and such

disclosure does not constitute a waiver of its claim. It is

immaterial whether the liability is to satisfy the judgment

directly or merely to indemnify or reimburse another after he pays

the judgment.

The provision applies only to persons "carrying on an insurance

business" and thus covers insurance companies and not the ordinary

business concern that enters into a contract of indemnification.

Cf. N.Y.Ins. Law Sec. 41. Thus, the provision makes no change in

existing law on discovery of indemnity agreements other than

insurance agreements by persons carrying on an insurance business.

Similarly, the provision does not cover the business concern that

creates a reserve fund for purposes of self-insurance.

For some purposes other than discovery, an application for

insurance is treated as a part of the insurance agreement. The

provision makes clear that, for discovery purposes, the application

is not to be so treated. The insurance application may contain

personal and financial information concerning the insured,

discovery of which is beyond the purpose of this provision.

In no instance does disclosure make the facts concerning

insurance coverage admissible in evidence.

Subdivision (b)(3) - Trial Preparation: Materials. Some of the

most controversial and vexing problems to emerge from the discovery

rules have arisen out of requests for the production of documents

or things prepared in anticipation of litigation or for trial. The

existing rules make no explicit provision for such materials. Yet,

two verbally distinct doctrines have developed, each conferring a

qualified immunity on these materials - the "good cause"

requirement in Rule 34 (now generally held applicable to discovery

of documents via deposition under Rule 45 and interrogatories under

Rule 33) and the work-product doctrine of Hickman v. Taylor, 329

U.S. 495 (1947). Both demand a showing of justification before

production can be had, the one of "good cause" and the other

variously described in the Hickman case: "necessity or

justification," "denial * * * would unduly prejudice the

preparation of petitioner's case," or "cause hardship or injustice"

329 U.S. at 509-510.

In deciding the Hickman case, the Supreme Court appears to have

expressed a preference in 1947 for an approach to the problem of

trial preparation materials by judicial decision rather than by

rule. Sufficient experience has accumulated, however, with lower

court applications of the Hickman decision to warrant a

reappraisal.

The major difficulties visible in the existing case law are (1)

confusion and disagreement as to whether "good cause" is made out

by a showing of relevance and lack of privilege, or requires an

additional showing of necessity, (2) confusion and disagreement as

to the scope of the Hickman work-product doctrine, particularly

whether it extends beyond work actually performed by lawyers, and

(3) the resulting difficulty of relating the "good cause" required

by Rule 34 and the "necessity or justification" of the work-product

doctrine, so that their respective roles and the distinctions

between them are understood.

Basic Standard. Since Rule 34 in terms requires a showing of

"good cause" for the production of all documents and things,

whether or not trial preparation is involved, courts have felt that

a single formula is called for and have differed over whether a

showing of relevance and lack of privilege is enough or whether

more must be shown. When the facts of the cases are studied,

however, a distinction emerges based upon the type of materials.

With respect to documents not obtained or prepared with an eye to

litigation, the decisions, while not uniform, reflect a strong and

increasing tendency to relate "good cause" to a showing that the

documents are relevant to the subject matter of the action. E.g.,

Connecticut Mutual Life Ins. Co. v. Shields, 17 F.R.D. 273

(S.D.N.Y. 1959), with cases cited; Houdry Process Corp. v.

Commonwealth Oil Refining Co., 24 F.R.D. 58 (S.D.N.Y. 1955); see

Bell v. Commercial Ins. Co., 280 F.2d 514, 517 (3d Cir. 1960). When

the party whose documents are sought shows that the request for

production is unduly burdensome or oppressive, courts have denied

discovery for lack of "good cause", although they might just as

easily have based their decision on the protective provisions of

existing Rule 30(b) (new Rule 26(c)). E.g., Lauer v. Tankrederi, 39

F.R.D. 334 (E.D.Pa. 1966).

As to trial-preparation materials, however, the courts are

increasingly interpreting "good cause" as requiring more than

relevance. When lawyers have prepared or obtained the materials for

trial, all courts require more than relevance; so much is clearly

commanded by Hickman. But even as to the preparatory work of

nonlawyers, while some courts ignore work-product and equate "good

cause" with relevance, e.g., Brown v. New York, N.H. & H. RR., 17

F.R.D. 324 (S.D.N.Y. 1955), the more recent trend is to read "good

cause" as requiring inquiry into the importance of and need for the

materials as well as into alternative sources for securing the same

information. In Guilford Nat'l Bank v. Southern Ry., 297 F.2d 921

(4th Cir. 1962), statements of witnesses obtained by claim agents

were held not discoverable because both parties had had equal

access to the witnesses at about the same time, shortly after the

collision in question. The decision was based solely on Rule 34 and

"good cause"; the court declined to rule on whether the statements

were work-product. The court's treatment of "good cause" is quoted

at length and with approval in Schlagenhauf v. Holder, 379 U.S.

104, 117-118 (1964). See also Mitchell v. Bass, 252 F.2d 513 (8th

Cir. 1958); Hauger v. Chicago, R.I. & Pac. RR., 216 F.2d 501 (7th

Cir. 1954); Burke v. United States, 32 F.R.D. 213 (E.D.N.Y. 1963).

While the opinions dealing with "good cause" do not often draw an

explicit distinction between trial preparation materials and other

materials, in fact an overwhelming proportion of the cases in which

special showing is required are cases involving trial preparation

materials.

The rules are amended by eliminating the general requirement of

"good cause" from Rule 34 but retaining a requirement of a special

showing for trial preparation materials in this subdivision. The

required showing is expressed, not in terms of "good cause" whose

generality has tended to encourage confusion and controversy, but

in terms of the elements of the special showing to be made:

substantial need of the materials in the preparation of the case

and inability without undue hardship to obtain the substantial

equivalent of the materials by other means.

These changes conform to the holdings of the cases, when viewed

in light of their facts. Apart from trial preparation, the fact

that the materials sought are documentary does not in and of itself

require a special showing beyond relevance and absence of

privilege. The protective provisions are of course available, and

if the party from whom production is sought raises a special issue

of privacy (as with respect to income tax returns or grand jury

minutes) or points to evidence primarily impeaching, or can show

serious burden or expense, the court will exercise its traditional

power to decide whether to issue a protective order. On the other

hand, the requirement of a special showing for discovery of trial

preparation materials reflects the view that each side's informal

evaluation of its case should be protected, that each side should

be encouraged to prepare independently, and that one side should

not automatically have the benefit of the detailed preparatory work

of the other side. See Field and McKusick, Maine Civil Practice 264

(1959).

Elimination of a "good cause" requirement from Rule 34 and the

establishment of a requirement of a special showing in this

subdivision will eliminate the confusion caused by having two

verbally distinct requirements of justification that the courts

have been unable to distinguish clearly. Moreover, the language of

the subdivision suggests the factors which the courts should

consider in determining whether the requisite showing has been

made. The importance of the materials sought to the party seeking

them in preparation of his case and the difficulty he will have

obtaining them by other means are factors noted in the Hickman

case. The courts should also consider the likelihood that the

party, even if he obtains the information by independent means,

will not have the substantial equivalent of the documents the

production of which he seeks.

Consideration of these factors may well lead the court to

distinguish between witness statements taken by an investigator, on

the one hand, and other parts of the investigative file, on the

other. The court in Southern Ry. v. Lanham, 403 F.2d 119 (5th Cir.

1968), while it naturally addressed itself to the "good cause"

requirements of Rule 34, set forth as controlling considerations

the factors contained in the language of this subdivision. The

analysis of the court suggests circumstances under which witness

statements will be discoverable. The witness may have given a fresh

and contemporaneous account in a written statement while he is

available to the party seeking discovery only a substantial time

thereafter. Lanham, supra at 127-128; Guilford, supra at 926. Or he

may be reluctant or hostile. Lanham, supra at 128-129; Brookshire

v. Pennsylvania RR., 14 F.R.D. 154 (N.D.Ohio 1953); Diamond v.

Mohawk Rubber Co., 33 F.R.D. 264 (D.Colo. 1963). Or he may have a

lapse of memory. Tannenbaum v. Walker, 16 F.R.D. 570 (E.D.Pa.

1954). Or he may probably be deviating from his prior statement.

Cf. Hauger v. Chicago, R.I. & Pac. RR., 216 F.2d 501 (7th Cir.

1954). On the other hand, a much stronger showing is needed to

obtain evaluative materials in an investigator's reports. Lanham,

supra at 131-133; Pickett v. L. R. Ryan, Inc., 237 F.Supp. 198

(E.D.S.C. 1965).

Materials assembled in the ordinary course of business, or

pursuant to public requirements unrelated to litigation, or for

other nonlitigation purposes are not under the qualified immunity

provided by this subdivision. Gossman v. A. Duie Pyle, Inc., 320

F.2d 45 (4th Cir. 1963); cf. United States v. New York Foreign

Trade Zone Operators, Inc., 304 F.2d 792 (2d Cir. 1962). No change

is made in the existing doctrine, noted in the Hickman case, that

one party may discover relevant facts known or available to the

other party, even though such facts are contained in a document

which is not itself discoverable.

Treatment of Lawyers; Special Protection of Mental Impressions,

Conclusions, Opinions, and Legal Theories Concerning the

Litigation. - The courts are divided as to whether the work-product

doctrine extends to the preparatory work only of lawyers. The

Hickman case left this issue open since the statements in that case

were taken by a lawyer. As to courts of appeals, compare Alltmont

v. United States, 177 F.2d 971, 976 (3d Cir. 1949), cert. denied,

339 U.S. 967 (1950) (Hickman applied to statements obtained by FBI

agents on theory it should apply to "all statements of prospective

witnesses which a party has obtained for his trial counsel's use"),

with Southern Ry. v. Campbell, 309 F.2d 569 (5th Cir. 1962)

(statements taken by claim agents not work-product), and Guilford

Nat'l Bank v. Southern Ry., 297 F.2d 921 (4th Cir. 1962) (avoiding

issue of work-product as to claim agents, deciding case instead

under Rule 34 "good cause"). Similarly, the district courts are

divided on statements obtained by claim agents, compare, e.g.,

Brown v. New York, N.H. & H. RR., 17 F.R.D. 324 (S.D.N.Y. 1955)

with Hanke v. Milwaukee Electric Ry. & Transp. Co., 7 F.R.D. 540

(E.D. Wis. 1947); investigators, compare Burke v. United States, 32

F.R.D. 213 (E.D.N.Y.1963) with Snyder v. United States, 20 F.R.D. 7

(E.D.N.Y.1956); and insurers, compare Gottlieb v. Bresler, 24

F.R.D. 371 (D.D.C.1959) with Burns v. Mulder, 20 F.R.D. 605 (ED.Pa

1957). See 4 Moore's Federal Practice ¶ 26.23 [8.1] (2d ed.

1966); 2A Barron & Holtzoff, Federal Practice and Procedure Sec.

652.2 (Wright ed. 1961).

A complication is introduced by the use made by courts of the

"good cause" requirement of Rule 34, as described above. A court

may conclude that trial preparation materials are not work-product

because not the result of lawyer's work and yet hold that they are

not producible because "good cause" has not been shown. Cf.

Guilford Nat'l Bank v. Southern Ry., 297 F.2d 921 (4th Cir. 1962),

cited and described above. When the decisions on "good cause" are

taken into account, the weight of authority affords protection of

the preparatory work of both lawyers and nonlawyers (though not

necessarily to the same extent) by requiring more than a showing of

relevance to secure production.

Subdivision (b)(3) reflects the trend of the cases by requiring a

special showing, not merely as to materials prepared by an

attorney, but also as to materials prepared in anticipation of

litigation or preparation for trial by or for a party or any

representative acting on his behalf. The subdivision then goes on

to protect against disclosure the mental impressions, conclusions,

opinions, or legal theories concerning the litigation of an

attorney or other representative of a party. The Hickman opinion

drew special attention to the need for protecting an attorney

against discovery of memoranda prepared from recollection of oral

interviews. The courts have steadfastly safeguarded against

disclosure of lawyers' mental impressions and legal theories, as

well as mental impressions and subjective evaluations of

investigators and claim-agents. In enforcing this provision of the

subdivision, the courts will sometimes find it necessary to order

disclosure of a document but with portions deleted.

Rules 33 and 36 have been revised in order to permit discovery

calling for opinions, contentions, and admissions relating not only

to fact but also to the application of law to fact. Under those

rules, a party and his attorney or other representative may be

required to disclose, to some extent, mental impressions, opinions,

or conclusions. But documents or parts of documents containing

these matters are protected against discovery by this subdivision.

Even though a party may ultimately have to disclose in response to

interrogatories or requests to admit, he is entitled to keep

confidential documents containing such matters prepared for

internal use.

Party's Right to Own Statement. - An exception to the requirement

of this subdivision enables a party to secure production of his own

statement without any special showing. The cases are divided.

Compare, e.g., Safeway Stores, Inc. v. Reynolds, 176 F.2d 476 (D.C.

Cir. 1949); Shupe v. Pennsylvania RR., 19 F.R.D. 144 (W.D.Pa.

1956); with e.g., New York Central RR. v. Carr, 251 F.2d 433 (4th

Cir. 1957); Belback v. Wilson Freight Forwarding Co., 40 F.R.D. 16

(W.D.Pa. 1966).

Courts which treat a party's statement as though it were that of

any witness overlook the fact that the party's statement is,

without more, admissible in evidence. Ordinarily, a party gives a

statement without insisting on a copy because he does not yet have

a lawyer and does not understand the legal consequences of his

actions. Thus, the statement is given at a time when he functions

at a disadvantage. Discrepancies between his trial testimony and

earlier statement may result from lapse of memory or ordinary

inaccuracy; a written statement produced for the first time at

trial may give such discrepancies a prominence which they do not

deserve. In appropriate cases the court may order a party to be

deposed before his statement is produced. E.g., Smith v. Central

Linen Service Co., 39 F.R.D. 15 (D.Md. 1966); McCoy v. General

Motors Corp., 33 F.R.D. 354 (W.D.Pa. 1963).

Commentators strongly support the view that a party be able to

secure his statement without a showing. 4 Moore's Federal Practice

¶ 26.23 [8.4] (2d ed. 1966); 2A Barron & Holtzoff, Federal

Practice and Procedure Sec. 652.3 (Wright ed. 1961); see also Note,

Developments in the Law - Discovery, 74 Harv.L.Rev. 940, 1039

(1961). The following states have by statute or rule taken the same

position: Statutes: Fla.Stat.Ann. Sec. 92.33; Ga.Code Ann. Sec.

38-2109(b); La.Stat.Ann.R.S. 13:3732; Mass.Gen.Laws Ann. c. 271,

Sec. 44; Minn.Stat.Ann. Sec. 602.01; N.Y.C.P.L.R. Sec. 3101(e).

Rules: Mo.R.C.P. 56.01(a); N.Dak.R.C.P. 34(b); Wyo.R.C.P. 34(b);

cf. Mich.G.C.R. 306.2.

In order to clarify and tighten the provision on statements by a

party, the term "statement" is defined. The definition is adapted

from 18 U.S.C. Sec. 3500(e) (Jencks Act). The statement of a party

may of course be that of plaintiff or defendant, and it may be that

of an individual or of a corporation or other organization.

Witness' Right to Own Statement. - A second exception to the

requirement of this subdivision permits a nonparty witness to

obtain a copy of his own statement without any special showing.

Many, though not all, of the considerations supporting a party's

right to obtain his statement apply also to the non-party witness.

Insurance companies are increasingly recognizing that a witness is

entitled to a copy of his statement and are modifying their regular

practice accordingly.

Subdivision (b)(4) - Trial Preparation: Experts. This is a new

provision dealing with discovery of information (including facts

and opinions) obtained by a party from an expert retained by that

party in relation to litigation or obtained by the expert and not

yet transmitted to the party. The subdivision deals separately with

those experts whom the party expects to call as trial witnesses and

with those experts who have been retained or specially employed by

the party but who are not expected to be witnesses. It should be

noted that the subdivision does not address itself to the expert

whose information was not acquired in preparation for trial but

rather because he was an actor or viewer with respect to

transactions or occurrences that are part of the subject matter of

the lawsuit. Such an expert should be treated as an ordinary

witness.

Subsection (b)(4)(A) deals with discovery of information obtained

by or through experts who will be called as witnesses at trial. The

provision is responsive to problems suggested by a relatively

recent line of authorities. Many of these cases present intricate

and difficult issues as to which expert testimony is likely to be

determinative. Prominent among them are food and drug, patent, and

condemnation cases. See, e.g., United States v. Nysco Laboratories,

Inc., 26 F.R.D. 159, 162 (E.D.N.Y. 1960) (food and drug); E. I. du

Pont de Nemours & Co. v. Phillips Petroleum Co., 24 F.R.D. 416, 421

(D.Del. 1959) (patent); Cold Metal Process Co. v. Aluminum Co. of

America, 7 F.R.D. 425 (N.D.Ohio 1947), aff'd. Sachs v. Aluminum Co.

of America, 167 F.2d 570 (6th Cir. 1948) (same); United States v.

50.34 Acres of Land, 13 F.R.D. 19 (E.D.N.Y. 1952) (condemnation).

In cases of this character, a prohibition against discovery of

information held by expert witnesses produces in acute form the

very evils that discovery has been created to prevent. Effective

cross-examination of an expert witness requires advance

preparation. The lawyer even with the help of his own experts

frequently cannot anticipate the particular approach his

adversary's expert will take or the data on which he will base his

judgment on the stand. McGlothlin, Some Practical Problems in Proof

of Economic, Scientific, and Technical Facts, 23 F.R.D. 467, 478

(1958). A California study of discovery and pretrial in

condemnation cases notes that the only substitute for discovery of

experts' valuation materials is "lengthy - and often fruitless -

cross-examination during trial," and recommends pretrial exchange

of such material. Calif.Law Rev.Comm'n, Discovery in Eminent Domain

Proceedings 707-710 (Jan.1963). Similarly, effective rebuttal

requires advance knowledge of the line of testimony of the other

side. If the latter is foreclosed by a rule against discovery, then

the narrowing of issues and elimination of surprise which discovery

normally produces are frustrated.

These considerations appear to account for the broadening of

discovery against experts in the cases cited where expert testimony

was central to the case. In some instances, the opinions are

explicit in relating expanded discovery to improved

cross-examination and rebuttal at trial. Franks v. National Dairy

Products Corp., 41 F.R.D. 234 (W.D.Tex. 1966); United States v.

23.76 Acres, 32 F.R.D. 593 (D.Md. 1963); see also an unpublished

opinion of Judge Hincks, quoted in United States v. 48 Jars, etc.,

23 F.R.D. 192, 198 (D.D.C. 1958). On the other hand, the need for a

new provision is shown by the many cases in which discovery of

expert trial witnesses is needed for effective cross-examination

and rebuttal, and yet courts apply the traditional doctrine and

refuse disclosure. E.g., United States v. Certain Parcels of Land,

25 F.R.D. 192 (N.D.Cal. 1959); United States v. Certain Acres, 18

F.R.D. 98 (M.D.Ga. 1955).

Although the trial problems flowing from lack of discovery of

expert witnesses are most acute and noteworthy when the case turns

largely on experts, the same problems are encountered when a single

expert testifies. Thus, subdivision (b)(4)(A) draws no line between

complex and simple cases, or between cases with many experts and

those with but one. It establishes by rule substantially the

procedure adopted by decision of the court in Knighton v. Villian &

Fassio, 39 F.R.D. 11 (D.Md. 1965). For a full analysis of the

problem and strong recommendations to the same effect, see

Friedenthal, Discovery and Use of an Adverse Party's Expert

Information, 14 Stan.L.Rev. 455, 485-488 (1962); Long, Discovery

and Experts under the Federal Rules of Civil Procedure, 38 F.R.D.

111 (1965).

Past judicial restrictions on discovery of an adversary's expert,

particularly as to his opinions, reflect the fear that one side

will benefit unduly from the other's better preparation. The

procedure established in subsection (b)(4)(A) holds the risk to a

minimum. Discovery is limited to trial witnesses, and may be

obtained only at a time when the parties know who their expert

witnesses will be. A party must as a practical matter prepare his

own case in advance of that time, for he can hardly hope to build

his case out of his opponent's experts.

Subdivision (b)(4)(A) provides for discovery of an expert who is

to testify at the trial. A party can require one who intends to use

the expert to state the substance of the testimony that the expert

is expected to give. The court may order further discovery, and it

has ample power to regulate its timing and scope and to prevent

abuse. Ordinarily, the order for further discovery shall compensate

the expert for his time, and may compensate the party who intends

to use the expert for past expenses reasonably incurred in

obtaining facts or opinions from the expert. Those provisions are

likely to discourage abusive practices.

Subdivision (b)(4)(B) deals with an expert who has been retained

or specially employed by the party in anticipation of litigation or

preparation for trial (thus excluding an expert who is simply a

general employee of the party not specially employed on the case),

but who is not expected to be called as a witness. Under its

provisions, a party may discover facts known or opinions held by

such an expert only on a showing of exceptional circumstances under

which it is impracticable for the party seeking discovery to obtain

facts or opinions on the same subject by other means.

Subdivision (b)(4)(B) is concerned only with experts retained or

specially consulted in relation to trial preparation. Thus the

subdivision precludes discovery against experts who were informally

consulted in preparation for trial, but not retained or specially

employed. As an ancillary procedure, a party may on a proper

showing require the other party to name experts retained or

specially employed, but not those informally consulted.

These new provisions of subdivision (b)(4) repudiate the few

decisions that have held an expert's information privileged simply

because of his status as an expert, e.g., American Oil Co. v.

Pennsylvania Petroleum Products Co., 23 F.R.D. 680, 685-686 (D.R.I.

1959). See Louisell, Modern California Discovery 315-316 (1963).

They also reject as ill-considered the decisions which have sought

to bring expert information within the work-product doctrine. See

United States v. McKay, 372 F.2d 174, 176-177 (5th Cir. 1967). The

provisions adopt a form of the more recently developed doctrine of

"unfairness". See e.g., United States v. 23.76 Acres of Land, 32

F.R.D. 593, 597 (D.Md. 1963); Louisell, supra, at 317-318; 4

Moore's Federal Practice Sec. 26.24 (2d ed. 1966).

Under subdivision (b)(4)(C), the court is directed or authorized

to issue protective orders, including an order that the expert be

paid a reasonable fee for time spent in responding to discovery,

and that the party whose expert is made subject to discovery be

paid a fair portion of the fees and expenses that the party

incurred in obtaining information from the expert. The court may

issue the latter order as a condition of discovery, or it may delay

the order until after discovery is completed. These provisions for

fees and expenses meet the objection that it is unfair to permit

one side to obtain without cost the benefit of an expert's work for

which the other side has paid, often a substantial sum. E.g., Lewis

v. United Air Lines Transp. Corp., 32 F.Supp. 21 (W.D.Pa. 1940);

Walsh v. Reynolds Metal Co., 15 F.R.D. 376 (D.N.J. 1954). On the

other hand, a party may not obtain discovery simply by offering to

pay fees and expenses. Cf. Boynton v. R. J. Reynolds Tobacco Co.,

36 F.Supp. 593 (D.Mass. 1941).

In instances of discovery under subdivision (b)(4)(B), the court

is directed to award fees and expenses to the other party, since

the information is of direct value to the discovering party's

preparation of his case. In ordering discovery under (b)(4)(A)(ii),

the court has discretion whether to award fees and expenses to the

other party; its decision should depend upon whether the

discovering party is simply learning about the other party's case

or is going beyond this to develop his own case. Even in cases

where the court is directed to issue a protective order, it may

decline to do so if it finds that manifest injustice would result.

Thus, the court can protect, when necessary and appropriate, the

interests of an indigent party.

Subdivision (c) - Protective Orders. The provisions of existing

Rule 30(b) are transferred to this subdivision (c), as part of the

rearrangement of Rule 26. The language has been changed to give it

application to discovery generally. The subdivision recognizes the

power of the court in the district where a deposition is being

taken to make protective orders. Such power is needed when the

deposition is being taken far from the court where the action is

pending. The court in the district where the deposition is being

taken may, and frequently will, remit the deponent or party to the

court where the action is pending.

In addition, drafting changes are made to carry out and clarify

the sense of the rule. Insertions are made to avoid any possible

implication that a protective order does not extend to "time" as

well as to "place" or may not safeguard against "undue burden or

expense."

The new reference to trade secrets and other confidential

commercial information reflects existing law. The courts have not

given trade secrets automatic and complete immunity against

disclosure, but have in each case weighed their claim to privacy

against the need for disclosure. Frequently, they have been

afforded a limited protection. See, e.g., Covey Oil Co. v.

Continental Oil Co., 340 F.2d 993 (10th Cir. 1965); Julius M. Ames

Co. v. Bostitch, Inc., 235 F.Supp. 856 (S.D.N.Y. 1964).

The subdivision contains new matter relating to sanctions. When a

motion for a protective order is made and the court is disposed to

deny it, the court may go a step further and issue an order to

provide or permit discovery. This will bring the sanctions of Rule

37(b) directly into play. Since the court has heard the contentions

of all interested persons, an affirmative order is justified. See

Rosenberg, Sanctions to Effectuate Pretrial Discovery, 58

Col.L.Rev. 480, 492-493 (1958). In addition, the court may require

the payment of expenses incurred in relation to the motion.

Subdivision (d) - Sequence and Priority. This new provision is

concerned with the sequence in which parties may proceed with

discovery and with related problems of timing. The principal

effects of the new provision are first, to eliminate any fixed

priority in the sequence of discovery, and second, to make clear

and explicit the court's power to establish priority by an order

issued in a particular case.

A priority rule developed by some courts, which confers priority

on the party who first serves notice of taking a deposition, is

unsatisfactory in several important respects:

First, this priority rule permits a party to establish a priority

running to all depositions as to which he has given earlier notice.

Since he can on a given day serve notice of taking many depositions

he is in a position to delay his adversary's taking of depositions

for an inordinate time. Some courts have ruled that deposition

priority also permits a party to delay his answers to

interrogatories and production of documents. E.g., E. I. du Pont de

Nemours & Co. v. Phillips Petroleum Co., 23 F.R.D. 237 (D.Del.

1959); but cf. Sturdevant v. Sears, Roebuck & Co., 32 F.R.D. 426

(W.D.Mo. 1963).

Second, since notice is the key to priority, if both parties wish

to take depositions first a race results. See Caldwell-Clements,

Inc. v. McGraw-Hill Pub. Co., 11 F.R.D. 156 (S.D.N.Y. 1951)

(description of tactics used by parties). But the existing rules on

notice of deposition create a race with runners starting from

different positions. The plaintiff may not give notice without

leave of court until 20 days after commencement of the action,

whereas the defendant may serve notice at any time after

commencement. Thus, a careful and prompt defendant can almost

always secure priority. This advantage of defendants is fortuitous,

because the purpose of requiring plaintiff to wait 20 days is to

afford defendant an opportunity to obtain counsel, not to confer

priority.

Third, although courts have ordered a change in the normal

sequence of discovery on a number of occasions, e.g., Kaeppler v.

James H. Matthews & Co., 200 F.Supp. 229 (E.D.Pa. 1961); Park &

Tilford Distillers Corp. v. Distillers Co., 19 F.R.D. 169 (S.D.N.Y.

1956), and have at all times avowed discretion to vary the usual

priority, most commentators are agreed that courts in fact grant

relief only for "the most obviously compelling reasons." 2A Barron

& Holtzoff, Federal Practice and Procedure 447-47 (Wright ed.

1961); see also Younger, Priority of Pretrial Examination in the

Federal Courts - A Comment, 34 N.Y.U.L.Rev. 1271 (1959); Freund,

The Pleading and Pretrial of an Antitrust Claim, 46 Corn.L.Q. 555,

564, (1964). Discontent with the fairness of actual practice has

been evinced by other observers. Comments, 59 Yale L.J. 117,

134-136 (1949); Yudkin, Some Refinements in Federal Discovery

Procedure, 11 Fed.B.J. 289, 296-297 (1951); Developments in the

Law-Discovery, 74 Harv.L.Rev. 940, 954-958 (1961).

Despite these difficulties, some courts have adhered to the

priority rule, presumably because it provides a test which is

easily understood and applied by the parties without much court

intervention. It thus permits deposition discovery to function

extrajudicially, which the rules provide for and the courts desire.

For these same reasons, courts are reluctant to make numerous

exceptions to the rule.

The Columbia Survey makes clear that the problem of priority does

not affect litigants generally. It found that most litigants do not

move quickly to obtain discovery. In over half of the cases, both

parties waited at least 50 days. During the first 20 days after

commencement of the action - the period when defendant might assure

his priority by noticing depositions - 16 percent of the defendants

acted to obtain discovery. A race could not have occurred in more

than 16 percent of the cases and it undoubtedly occurred in fewer.

On the other hand, five times as many defendants as plaintiffs

served notice of deposition during the first 19 days. To the same

effect, see Comment, Tactical Use and Abuse of Depositions Under

the Federal Rules, 59 Yale L.J. 117, 134 (1949).

These findings do not mean, however, that the priority rule is

satisfactory or that a problem of priority does not exist. The

court decisions show that parties do bottle on this issue and carry

their disputes to court. The statistics show that these court cases

are not typical. By the same token, they reveal that more extensive

exercise of judicial discretion to vary the priority will not bring

a flood of litigation, and that a change in the priority rule will

in fact affect only a small fraction of the cases.

It is contended by some that there is no need to alter the

existing priority practice. In support, it is urged that there is

no evidence that injustices in fact result from present practice

and that, in any event, the courts can and do promulgate local

rules, as in New York, to deal with local situations and issue

orders to avoid possible injustice in particular cases.

Subdivision (d) is based on the contrary view that the rule of

priority based on notice is unsatisfactory and unfair in its

operation. Subdivision (d) follows an approach adapted from Civil

Rule 4 of the District Court for the Southern District of New York.

That rule provides that starting 40 days after commencement of the

action, unless otherwise ordered by the court, the fact that one

part is taking a deposition shall not prevent another party from

doing so "concurrently." In practice, the depositions are not

usually taken simultaneously; rather, the parties work out

arrangements for alternation in the taking of depositions. One

party may take a complete deposition and then the other, or, if the

depositions are extensive, one party deposes for a set time, and

then the other. See Caldwell-Clements, Inc. v. McGraw-Hill Pub.

Co., 11 F.R.D. 156 (S.D.N.Y. 1951).

In principle, one party's initiation of discovery should not wait

upon the other's completion, unless delay is dictated by special

considerations. Clearly the principle is feasible with respect to

all methods of discovery other than depositions. And the experience

of the Southern District of New York shows that the principle can

be applied to depositions as well. The courts have not had an

increase in motion business on this matter. Once it is clear to

lawyers that they bargain on an equal footing, they are usually

able to arrange for an orderly succession of depositions without

judicial intervention. Professor Moore has called attention to

Civil Rule 4 and suggested that it may usefully be extended to

other areas. 4 Moore's Federal Practice 1154 (2d ed. 1966).

The court may upon motion and by order grant priority in a

particular case. But a local court rule purporting to confer

priority in certain classes of cases would be inconsistent with

this subdivision and thus void.

Subdivision (e) - Supplementation of Responses. The rules do not

now state whether interrogatories (and questions at deposition as

well as requests for inspection and admissions) impose a

"continuing burden" on the responding party to supplement his

answers if he obtains new information. The issue is acute when new

information renders substantially incomplete or inaccurate an

answer which was complete and accurate when made. It is essential

that the rules provide an answer to this question. The parties can

adjust to a rule either way, once they know what it is. See 4

Moore's Federal Practice ¶ 33.25[4] (2d ed. 1966).

Arguments can be made both ways. Imposition of a continuing

burden reduces the proliferation of additional sets of

interrogatories. Some courts have adopted local rules establishing

such a burden. E.g., E.D.Pa.R. 20(f), quoted in Taggart v. Vermont

Transp. Co., 32 F.R.D. 587 (E.D.Pa. 1963); D.Me.R.15(c). Others

have imposed the burden by decision, E.g., Chenault v. Nebraska

Farm Products, Inc., 9 F.R.D. 529, 533 (D.Nebr. 1949). On the other

hand, there are serious objections to the burden, especially in

protracted cases. Although the party signs the answers, it is his

lawyer who understands their significance and bears the

responsibility to bring answers up to date. In a complex case all

sorts of information reaches the party, who little understands its

bearing on answers previously given to interrogatories. In

practice, therefore, the lawyer under a continuing burden must

periodically recheck all interrogatories and canvass all new

information. But a full set of new answers may no longer be needed

by the interrogating party. Some issues will have been dropped from

the case, some questions are now seen as unimportant, and other

questions must in any event be reformulated. See Novick v.

Pennsylvania RR., 18 F.R.D. 296, 298 (W.D.Pa. 1955).

Subdivision (e) provides that a party is not under a continuing

burden except as expressly provided. Cf. Note, 68 Harv.L.Rev. 673,

677 (1955). An exception is made as to the identity of persons

having knowledge of discoverable matters, because of the obvious

importance to each side of knowing all witnesses and because

information about witnesses routinely comes to each lawyer's

attention. Many of the decisions on the issue of a continuing

burden have in fact concerned the identity of witnesses. An

exception is also made as to expert trial witnesses in order to

carry out the provisions of Rule 26(b)(4). See Diversified Products

Corp. v. Sports Center Co., 42 F.R.D. 3 (D.Md. 1967).

Another exception is made for the situation in which a party, or

more frequently his lawyer, obtains actual knowledge that a prior

response is incorrect. This exception does not impose a duty to

check the accuracy of prior responses, but it prevents knowing

concealment by a party or attorney. Finally, a duty to supplement

may be imposed by order of the court in a particular case

(including an order resulting from a pretrial conference) or by

agreement of the parties. A party may of course make a new

discovery request which requires supplementation of prior

responses.

The duty will normally be enforced, in those limited instances

where it is imposed, through sanctions imposed by the trial court,

including exclusion of evidence, continuance, or other action, as

the court may deem appropriate.

NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT

Subdivision (f). This subdivision is new. There has been

widespread criticism of abuse of discovery. The Committee has

considered a number of proposals to eliminate abuse, including a

change in Rule 26(b)(1) with respect to the scope of discovery and

a change in Rule 33(a) to limit the number of questions that can be

asked by interrogatories to parties.

The Committee believes that abuse of discovery, while very

serious in certain cases, is not so general as to require such

basic changes in the rules that govern discovery in all cases. A

very recent study of discovery in selected metropolitan districts

tends to support its belief. P. Connolly, E. Holleman, & M.

Kuhlman, Judicial Controls and the Civil Litigative Process:

Discovery (Federal Judicial Center, 1978). In the judgment of the

Committee abuse can best be prevented by intervention by the court

as soon as abuse is threatened.

To this end this subdivision provides that counsel who has

attempted without success to effect with opposing counsel a

reasonable program or plan for discovery is entitled to the

assistance of the court.

It is not contemplated that requests for discovery conferences

will be made routinely. A relatively narrow discovery dispute

should be resolved by resort to Rules 26(c) or 37(a), and if it

appears that a request for a conference is in fact grounded in such

a dispute, the court may refer counsel to those rules. If the court

is persuaded that a request is frivolous or vexatious, it can

strike it. See Rules 11 and 7(b)(2).

A number of courts routinely consider discovery matters in

preliminary pretrial conferences held shortly after the pleadings

are closed. This subdivision does not interfere with such a

practice. It authorizes the court to combine a discovery conference

with a pretrial conference under Rule 16 if a pretrial conference

is held sufficiently early to prevent or curb abuse.

NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT

Excessive discovery and evasion or resistance to reasonable

discovery requests pose significant problems. Recent studies have

made some attempt to determine the sources and extent of the

difficulties. See Brazil, Civil Discovery: Lawyers' Views of its

Effectiveness, Principal Problems and Abuses, American Bar

Foundation (1980); Connolly, Holleman & Kuhlman, Judicial Controls

and the Civil Litigative Process: Discovery, Federal Judicial

Center (1978); Ellington, A Study of Sanctions for Discovery Abuse,

Department of Justice (1979); Schroeder & Frank, The Proposed

Changes in the Discovery Rules, 1978 Ariz.St.L.J. 475.

The purpose of discovery is to provide a mechanism for making

relevant information available to the litigants. "Mutual knowledge

of all the relevant facts gathered by both parties is essential to

proper litigation." Hickman v. Taylor, 329 U.S. 495, 507 (1947).

Thus the spirit of the rules is violated when advocates attempt to

use discovery tools as tactical weapons rather than to expose the

facts and illuminate the issues by overuse of discovery or

unnecessary use of defensive weapons or evasive responses. All of

this results in excessively costly and time-consuming activities

that are disproportionate to the nature of the case, the amount

involved, or the issues or values at stake.

Given our adversary tradition and the current discovery rules, it

is not surprising that there are many opportunities, if not

incentives, for attorneys to engage in discovery that, although

authorized by the broad, permissive terms of the rules,

nevertheless results in delay. See Brazil, The Adversary Character

of Civil Discovery: A Critique and Proposals for Change, 31

Vand.L.Rev. 1259 (1978). As a result, it has been said that the

rules have "not infrequently [been] exploited to the disadvantage

of justice." Herbert v. Lando, 441 U.S. 153, 179 (1979) (Powell,

J., concurring). These practices impose costs on an already

overburdened system and impede the fundamental goal of the "just,

speedy, and inexpensive determination of every action."

Fed.R.Civ.P. 1.

Subdivision (a); Discovery Methods. The deletion of the last

sentence of Rule 26(a)(1), which provided that unless the court

ordered otherwise under Rule 26(c) "the frequency of use" of the

various discovery methods was not to be limited, is an attempt to

address the problem of duplicative, redundant, and excessive

discovery and to reduce it. The amendment, in conjunction with the

changes in Rule 26(b)(1), is designed to encourage district judges

to identify instances of needless discovery and to limit the use of

the various discovery devices accordingly. The question may be

raised by one of the parties, typically on a motion for a

protective order, or by the court on its own initiative. It is

entirely appropriate to consider a limitation on the frequency of

use of discovery at a discovery conference under Rule 26(f) or at

any other pretrial conference authorized by these rules. In

considering the discovery needs of a particular case, the court

should consider the factors described in Rule 26(b)(1).

Subdivision (b); Discovery Scope and Limits. Rule 26(b)(1) has

been amended to add a sentence to deal with the problem of

over-discovery. The objective is to guard against redundant or

disproportionate discovery by giving the court authority to reduce

the amount of discovery that may be directed to matters that are

otherwise proper subjects of inquiry. The new sentence is intended

to encourage judges to be more aggressive in identifying and

discouraging discovery overuse. The grounds mentioned in the

amended rule for limiting discovery reflect the existing practice

of many courts in issuing protective orders under Rule 26(c). See

e.g., Carlson Cos. v. Sperry & Hutchinson Co., 374 F.Supp. 1080

(D.Minn. 1974); Dolgow v. Anderson, 53 F.R.D. 661 (E.D.N.Y. 1971);

Mitchell v. American Tobacco Co., 33 F.R.D. 262 (M.D.Pa. 1963);

Welty v. Clute, 1 F.R.D. 446 (W.D.N.Y. 1941). On the whole,

however, district judges have been reluctant to limit the use of

the discovery devices. See, e.g., Apco Oil Co. v. Certified

Transp., Inc., 46 F.R.D. 428 (W.D.Mo. 1969). See generally 8 Wright

& Miller, Federal Practice and Procedure: Civil Secs. 2036, 2037,

2039, 2040 (1970).

The first element of the standard, Rule 26(b)(1)(i), is designed

to minimize redundancy in discovery and encourage attorneys to be

sensitive to the comparative costs of different methods of securing

information. Subdivision (b)(1)(ii) also seeks to reduce

repetitiveness and to oblige lawyers to think through their

discovery activities in advance so that full utilization is made of

each deposition, document request, or set of interrogatories. The

elements of Rule 26(b)(1)(iii) address the problem of discovery

that is disproportionate to the individual lawsuit as measured by

such matters as its nature and complexity, the importance of the

issues at stake in a case seeking damages, the limitations on a

financially weak litigant to withstand extensive opposition to a

discovery program or to respond to discovery requests, and the

significance of the substantive issues, as measured in philosophic,

social, or institutional terms. Thus the rule 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. The court must apply the standards in an

even-handed manner that will prevent use of discovery to wage a war

of attrition or as a device to coerce a party, whether financially

weak or affluent.

The rule contemplates greater judicial involvement in the

discovery process and thus acknowledges the reality that it cannot

always operate on a self-regulating basis. See Connolly, Holleman &

Kuhlman, Judicial Controls and the Civil Litigative Process:

Discovery 77, Federal Judicial Center (1978). In an appropriate

case the court could restrict the number of depositions,

interrogatories, or the scope of a production request. But the

court must be careful not to deprive a party of discovery that is

reasonably necessary to afford a fair opportunity to develop and

prepare the case.

The court may act on motion, or its own initiative. It is

entirely appropriate to resort to the amended rule in conjunction

with a discovery conference under Rule 26(f) or one of the other

pretrial conferences authorized by the rules.

Subdivision (g); Signing of Discovery Requests, Responses, and

Objections. Rule 26(g) imposes an affirmative duty to engage in

pretrial discovery in a responsible manner that is consistent with

the spirit and purposes of Rules 26 through 37. In addition, Rule

26(g) is designed to curb discovery abuse by explicitly encouraging

the imposition of sanctions. The subdivision provides a deterrent

to both excessive discovery and evasion by imposing a certification

requirement that obliges each attorney to stop and think about the

legitimacy of a discovery request, a response thereto, or an

objection. The term "response" includes answers to interrogatories

and to requests to admit as well as responses to production

requests.

If primary responsibility for conducting discovery is to continue

to rest with the litigants, they must be obliged to act responsibly

and avoid abuse. With this in mind, Rule 26(g), which parallels the

amendments to Rule 11, requires an attorney or unrepresented party

to sign each discovery request, response, or objection. Motions

relating to discovery are governed by Rule 11. However, since a

discovery request, response, or objection usually deals with more

specific subject matter than motions or papers, the elements that

must be certified in connection with the former are spelled out

more completely. The signature is a certification of the elements

set forth in Rule 26(g).

Although the certification duty requires the lawyer to pause and

consider the reasonableness of his request, response, or objection,

it is not meant to discourage or restrict necessary and legitimate

discovery. The rule simply requires that the attorney make a

reasonable inquiry into the factual basis of his response, request,

or objection.

The duty to make a "reasonable inquiry" is satisfied if the

investigation undertaken by the attorney and the conclusions drawn

therefrom are reasonable under the circumstances. It is an

objective standard similar to the one imposed by Rule 11. See the

Advisory Committee Note to Rule 11. See also Kinee v. Abraham

Lincoln Fed. Sav. & Loan Ass'n, 365 F.Supp. 975 (E.D.Pa. 1973). In

making the inquiry, the attorney may rely on assertions by the

client and on communications with other counsel in the case as long

as that reliance is appropriate under the circumstances.

Ultimately, what is reasonable is a matter for the court to decide

on the totality of the circumstances.

Rule 26(g) does not require the signing attorney to certify the

truthfulness of the client's factual responses to a discovery

request. Rather, the signature certifies that the lawyer has made a

reasonable effort to assure that the client has provided all the

information and documents available to him that are responsive to

the discovery demand. Thus, the lawyer's certification under Rule

26(g) should be distinguished from other signature requirements in

the rules, such as those in Rules 30(e) and 33.

Nor does the rule require a party or an attorney to disclose

privileged communications or work product in order to show that a

discovery request, response, or objection is substantially

justified. The provisions of Rule 26(c), including appropriate

orders after in camera inspection by the court, remain available to

protect a party claiming privilege or work product protection.

The signing requirement means that every discovery request,

response, or objection should be grounded on a theory that is

reasonable under the precedents or a good faith belief as to what

should be the law. This standard is heavily dependent on the

circumstances of each case. The certification speaks as of the time

it is made. The duty to supplement discovery responses continues to

be governed by Rule 26(e).

Concern about discovery abuse has led to widespread recognition

that there is a need for more aggressive judicial control and

supervision. ACF Industries, Inc. v. EEOC, 439 U.S. 1081 (1979)

(certiorari denied) (Powell, J., dissenting). Sanctions to deter

discovery abuse would be more effective if they were diligently

applied "not merely to penalize those whose conduct may be deemed

to warrant such a sanction, but to deter those who might be tempted

to such conduct in the absence of such a deterrent." National

Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643

(1976). See also Note, The Emerging Deterrence Orientation in the

Imposition of Discovery Sanctions, 91 Harv. L. Rev. 1033 (1978).

Thus the premise of Rule 26(g) is that imposing sanctions on

attorneys who fail to meet the rule's standards will significantly

reduce abuse by imposing disadvantages therefor.

Because of the asserted reluctance to impose sanctions on

attorneys who abuse the discovery rules, see Brazil, Civil

Discovery: Lawyers' Views of its Effectiveness, Principal Problems

and Abuses, American Bar Foundation (1980); Ellington, A Study of

Sanctions for Discovery Abuse, Department of Justice (1979), Rule

26(g) makes explicit the authority judges now have to impose

appropriate sanctions and requires them to use it. This authority

derives from Rule 37, 28 U.S.C. Sec. 1927, and the court's inherent

power. See Roadway Express, Inc., v. Piper, 447 U.S. 752 (1980);

Martin v. Bell Helicopter Co., 85 F.R.D. 654, 661-62 (D.Col. 1980);

Note, Sanctions Imposed by Courts on Attorneys Who Abuse the

Judicial Process, 44 U.Chi.L.Rev. 619 (1977). The new rule mandates

that sanctions be imposed on attorneys who fail to meet the

standards established in the first portion of Rule 26(g). The

nature of the sanction is a matter of judicial discretion to be

exercised in light of the particular circumstances. The court may

take into account any failure by the party seeking sanctions to

invoke protection under Rule 26(c) at an early stage in the

litigation.

The sanctioning process must comport with due process

requirements. The kind of notice and hearing required will depend

on the facts of the case and the severity of the sanction being

considered. To prevent the proliferation of the sanction procedure

and to avoid multiple hearings, discovery in any sanction

proceeding normally should be permitted only when it is clearly

required by the interests of justice. In most cases the court will

be aware of the circumstances and only a brief hearing should be

necessary.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Subdivision (a). Through the addition of paragraphs (1)-(4), this

subdivision imposes on parties a duty to disclose, without awaiting

formal discovery requests, certain basic information that is needed

in most cases to prepare for trial or make an informed decision

about settlement. The rule requires all parties (1) early in the

case to exchange information regarding potential witnesses,

documentary evidence, damages, and insurance, (2) at an appropriate

time during the discovery period to identify expert witnesses and

provide a detailed written statement of the testimony that may be

offered at trial through specially retained experts, and (3) as the

trial date approaches to identify the particular evidence that may

be offered at trial. The enumeration in Rule 26(a) of items to be

disclosed does not prevent a court from requiring by order or local

rule that the parties disclose additional information without a

discovery request. Nor are parties precluded from using traditional

discovery methods to obtain further information regarding these

matters, as for example asking an expert during a deposition about

testimony given in other litigation beyond the four-year period

specified in Rule 26(a)(2)(B).

A major purpose of the revision is to accelerate the exchange of

basic information about the case and to eliminate the paper work

involved in requesting such information, and the rule should be

applied in a manner to achieve those objectives. The concepts of

imposing a duty of disclosure were set forth in Brazil, The

Adversary Character of Civil Discovery: A Critique and Proposals

for Change, 31 Vand. L. Rev. 1348 (1978), and Schwarzer, The

Federal Rules, the Adversary Process, and Discovery Reform, 50 U.

Pitt. L. Rev. 703, 721-23 (1989).

The rule is based upon the experience of district courts that

have required disclosure of some of this information through local

rules, court-approved standard interrogatories, and standing

orders. Most have required pretrial disclosure of the kind of

information described in Rule 26(a)(3). Many have required written

reports from experts containing information like that specified in

Rule 26(a)(2)(B). While far more limited, the experience of the few

state and federal courts that have required pre-discovery exchange

of core information such as is contemplated in Rule 26(a)(1)

indicates that savings in time and expense can be achieved,

particularly if the litigants meet and discuss the issues in the

case as a predicate for this exchange and if a judge supports the

process, as by using the results to guide further proceedings in

the case. Courts in Canada and the United Kingdom have for many

years required disclosure of certain information without awaiting a

request from an adversary.

Paragraph (1). As the functional equivalent of court-ordered

interrogatories, this paragraph requires early disclosure, without

need for any request, of four types of information that have been

customarily secured early in litigation through formal discovery.

The introductory clause permits the court, by local rule, to exempt

all or particular types of cases from these disclosure

requirement[s] or to modify the nature of the information to be

disclosed. It is expected that courts would, for example, exempt

cases like Social Security reviews and government collection cases

in which discovery would not be appropriate or would be unlikely.

By order the court may eliminate or modify the disclosure

requirements in a particular case, and similarly the parties,

unless precluded by order or local rule, can stipulate to

elimination or modification of the requirements for that case. The

disclosure obligations specified in paragraph (1) will not be

appropriate for all cases, and it is expected that changes in these

obligations will be made by the court or parties when the

circumstances warrant.

Authorization of these local variations is, in large measure,

included in order to accommodate the Civil Justice Reform Act of

1990, which implicitly directs districts to experiment during the

study period with differing procedures to reduce the time and

expense of civil litigation. The civil justice delay and expense

reduction plans adopted by the courts under the Act differ as to

the type, form, and timing of disclosures required. Section

105(c)(1) of the Act calls for a report by the Judicial Conference

to Congress by December 31, 1995, comparing experience in twenty of

these courts; and section 105(c)(2)(B) contemplates that some

changes in the Rules may then be needed. While these studies may

indicate the desirability of further changes in Rule 26(a)(1),

these changes probably could not become effective before December

1998 at the earliest. In the meantime, the present revision puts in

place a series of disclosure obligations that, unless a court acts

affirmatively to impose other requirements or indeed to reject all

such requirements for the present, are designed to eliminate

certain discovery, help focus the discovery that is needed, and

facilitate preparation for trial or settlement.

Subparagraph (A) requires identification of all persons who,

based on the investigation conducted thus far, are likely to have

discoverable information relevant to the factual disputes between

the parties. All persons with such information should be disclosed,

whether or not their testimony will be supportive of the position

of the disclosing party. As officers of the court, counsel are

expected to disclose the identity of those persons who may be used

by them as witnesses or who, if their potential testimony were

known, might reasonably be expected to be deposed or called as a

witness by any of the other parties. Indicating briefly the general

topics on which such persons have information should not be

burdensome, and will assist other parties in deciding which

depositions will actually be needed.

Subparagraph (B) is included as a substitute for the inquiries

routinely made about the existence and location of documents and

other tangible things in the possession, custody, or control of the

disclosing party. Although, unlike subdivision (a)(3)(C), an

itemized listing of each exhibit is not required, the disclosure

should describe and categorize, to the extent identified during the

initial investigation, the nature and location of potentially

relevant documents and records, including computerized data and

other electronically-recorded information, sufficiently to enable

opposing parties (1) to make an informed decision concerning which

documents might need to be examined, at least initially, and (2) to

frame their document requests in a manner likely to avoid squabbles

resulting from the wording of the requests. As with potential

witnesses, the requirement for disclosure of documents applies to

all potentially relevant items then known to the party, whether or

not supportive of its contentions in the case.

Unlike subparagraphs (C) and (D), subparagraph (B) does not

require production of any documents. Of course, in cases involving

few documents a disclosing party may prefer to provide copies of

the documents rather than describe them, and the rule is written to

afford this option to the disclosing party. If, as will be more

typical, only the description is provided, the other parties are

expected to obtain the documents desired by proceeding under Rule

34 or through informal requests. The disclosing party does not, by

describing documents under subparagraph (B), waive its right to

object to production on the basis of privilege or work product

protection, or to assert that the documents are not sufficiently

relevant to justify the burden or expense of production.

The initial disclosure requirements of subparagraphs (A) and (B)

are limited to identification of potential evidence "relevant to

disputed facts alleged with particularity in the pleadings." There

is no need for a party to identify potential evidence with respect

to allegations that are admitted. Broad, vague, and conclusory

allegations sometimes tolerated in notice pleading - for example,

the assertion that a product with many component parts is defective

in some unspecified manner - should not impose upon responding

parties the obligation at that point to search for and identify all

persons possibly involved in, or all documents affecting, the

design, manufacture, and assembly of the product. The greater the

specificity and clarity of the allegations in the pleadings, the

more complete should be the listing of potential witnesses and

types of documentary evidence. Although paragraphs (1)(A) and

(1)(B) by their terms refer to the factual disputes defined in the

pleadings, the rule contemplates that these issues would be

informally refined and clarified during the meeting of the parties

under subdivision (f) and that the disclosure obligations would be

adjusted in the light of these discussions. The disclosure

requirements should, in short, be applied with common sense in

light of the principles of Rule 1, keeping in mind the salutary

purposes that the rule is intended to accomplish. The litigants

should not indulge in gamesmanship with respect to the disclosure

obligations.

Subparagraph (C) imposes a burden of disclosure that includes the

functional equivalent of a standing Request for Production under

Rule 34. A party claiming damages or other monetary relief must, in

addition to disclosing the calculation of such damages, make

available the supporting documents for inspection and copying as if

a request for such materials had been made under Rule 34. This

obligation applies only with respect to documents then reasonably

available to it and not privileged or protected as work product.

Likewise, a party would not be expected to provide a calculation of

damages which, as in many patent infringement actions, depends on

information in the possession of another party or person.

Subparagraph (D) replaces subdivision (b)(2) of Rule 26, and

provides that liability insurance policies be made available for

inspection and copying. The last two sentences of that subdivision

have been omitted as unnecessary, not to signify any change of law.

The disclosure of insurance information does not thereby render

such information admissible in evidence. See Rule 411, Federal

Rules of Evidence. Nor does subparagraph (D) require disclosure of

applications for insurance, though in particular cases such

information may be discoverable in accordance with revised

subdivision (a)(5).

Unless the court directs a different time, the disclosures

required by subdivision (a)(1) are to be made at or within 10 days

after the meeting of the parties under subdivision (f). One of the

purposes of this meeting is to refine the factual disputes with

respect to which disclosures should be made under paragraphs (1)(A)

and (1)(B), particularly if an answer has not been filed by a

defendant, or, indeed, to afford the parties an opportunity to

modify by stipulation the timing or scope of these obligations. The

time of this meeting is generally left to the parties provided it

is held at least 14 days before a scheduling conference is held or

before a scheduling order is due under Rule 16(b). In cases in

which no scheduling conference is held, this will mean that the

meeting must ordinarily be held within 75 days after a defendant

has first appeared in the case and hence that the initial

disclosures would be due no later than 85 days after the first

appearance of a defendant.

Before making its disclosures, a party has the obligation under

subdivision (g)(1) to make a reasonable inquiry into the facts of

the case. The rule does not demand an exhaustive investigation at

this stage of the case, but one that is reasonable under the

circumstances, focusing on the facts that are alleged with

particularity in the pleadings. The type of investigation that can

be expected at this point will vary based upon such factors as the

number and complexity of the issues; the location, nature, number,

and availability of potentially relevant witnesses and documents;

the extent of past working relationships between the attorney and

the client, particularly in handling related or similar litigation;

and of course how long the party has to conduct an investigation,

either before or after filing of the case. As provided in the last

sentence of subdivision (a)(1), a party is not excused from the

duty of disclosure merely because its investigation is incomplete.

The party should make its initial disclosures based on the

pleadings and the information then reasonably available to it. As

its investigation continues and as the issues in the pleadings are

clarified, it should supplement its disclosures as required by

subdivision (e)(1). A party is not relieved from its obligation of

disclosure merely because another party has not made its

disclosures or has made an inadequate disclosure.

It will often be desirable, particularly if the claims made in

the complaint are broadly stated, for the parties to have their

Rule 26(f) meeting early in the case, perhaps before a defendant

has answered the complaint or had time to conduct other than a

cursory investigation. In such circumstances, in order to

facilitate more meaningful and useful initial disclosures, they can

and should stipulate to a period of more than 10 days after the

meeting in which to make these disclosures, at least for defendants

who had no advance notice of the potential litigation. A

stipulation at an early meeting affording such a defendant at least

60 days after receiving the complaint in which to make its

disclosures under subdivision (a)(1) - a period that is two weeks

longer than the time formerly specified for responding to

interrogatories served with a complaint - should be adequate and

appropriate in most cases.

Paragraph (2). This paragraph imposes an additional duty to

disclose information regarding expert testimony sufficiently in

advance of trial that opposing parties have a reasonable

opportunity to prepare for effective cross examination and perhaps

arrange for expert testimony from other witnesses. Normally the

court should prescribe a time for these disclosures in a scheduling

order under Rule 16(b), and in most cases the party with the burden

of proof on an issue should disclose its expert testimony on that

issue before other parties are required to make their disclosures

with respect to that issue. In the absence of such a direction, the

disclosures are to be made by all parties at least 90 days before

the trial date or the date by which the case is to be ready for

trial, except that an additional 30 days is allowed (unless the

court specifies another time) for disclosure of expert testimony to

be used solely to contradict or rebut the testimony that may be

presented by another party's expert. For a discussion of procedures

that have been used to enhance the reliability of expert testimony,

see M. Graham, Expert Witness Testimony and the Federal Rules of

Evidence: Insuring Adequate Assurance of Trustworthiness, 1986 U.

Ill. L. Rev. 90.

Paragraph (2)(B) requires that persons retained or specially

employed to provide expert testimony, or whose duties as an

employee of the party regularly involve the giving of expert

testimony, must prepare a detailed and complete written report,

stating the testimony the witness is expected to present during

direct examination, together with the reasons therefor. The

information disclosed under the former rule in answering

interrogatories about the "substance" of expert testimony was

frequently so sketchy and vague that it rarely dispensed with the

need to depose the expert and often was even of little help in

preparing for a deposition of the witness. Revised Rule 37(c)(1)

provides an incentive for full disclosure; namely, that a party

will not ordinarily be permitted to use on direct examination any

expert testimony not so disclosed. Rule 26(a)(2)(B) does not

preclude counsel from providing assistance to experts in preparing

the reports, and indeed, with experts such as automobile mechanics,

this assistance may be needed. Nevertheless, the report, which is

intended to set forth the substance of the direct examination,

should be written in a manner that reflects the testimony to be

given by the witness and it must be signed by the witness.

The report is to disclose the data and other information

considered by the expert and any exhibits or charts that summarize

or support the expert's opinions. Given this obligation of

disclosure, litigants should no longer be able to argue that

materials furnished to their experts to be used in forming their

opinions - whether or not ultimately relied upon by the expert -

are privileged or otherwise protected from disclosure when such

persons are testifying or being deposed.

Revised subdivision (b)(4)(A) authorizes the deposition of expert

witnesses. Since 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.

Revised subdivision (e)(1) requires disclosure of any material

changes made in the opinions of an expert from whom a report is

required, whether the changes are in the written report or in

testimony given at a deposition.

For convenience, this rule and revised Rule 30 continue to use

the term "expert" to refer to those persons who will testify under

Rule 702 of the Federal Rules of Evidence with respect to

scientific, technical, and other specialized matters. The

requirement of a written report in paragraph (2)(B), however,

applies only to those experts who are retained or specially

employed to provide such testimony in the case or whose duties as

an employee of a party regularly involve the giving of such

testimony. A treating physician, for example, can be deposed or

called to testify at trial without any requirement for a written

report. By local rule, order, or written stipulation, the

requirement of a written report may be waived for particular

experts or imposed upon additional persons who will provide

opinions under Rule 702.

Paragraph (3). This paragraph imposes an additional duty to

disclose, without any request, information customarily needed in

final preparation for trial. These disclosures are to be made in

accordance with schedules adopted by the court under Rule 16(b) or

by special order. If no such schedule is directed by the court, the

disclosures are to be made at least 30 days before commencement of

the trial. By its terms, rule 26(a)(3) does not require disclosure

of evidence to be used solely for impeachment purposes; however,

disclosure of such evidence - as well as other items relating to

conduct of trial - may be required by local rule or a pretrial

order.

Subparagraph (A) requires the parties to designate the persons

whose testimony they may present as substantive evidence at trial,

whether in person or by deposition. Those who will probably be

called as witnesses should be listed separately from those who are

not likely to be called but who are being listed in order to

preserve the right to do so if needed because of developments

during trial. Revised Rule 37(c)(1) provides that only persons so

listed may be used at trial to present substantive evidence. This

restriction does not apply unless the omission was "without

substantial justification" and hence would not bar an unlisted

witness if the need for such testimony is based upon developments

during trial that could not reasonably have been anticipated -

e.g., a change of testimony.

Listing a witness does not obligate the party to secure the

attendance of the person at trial, but should preclude the party

from objecting if the person is called to testify by another party

who did not list the person as a witness.

Subparagraph (B) requires the party to indicate which of these

potential witnesses will be presented by deposition at trial. A

party expecting to use at trial a deposition not recorded by

stenographic means is required by revised Rule 32 to provide the

court with a transcript of the pertinent portions of such

depositions. This rule requires that copies of the transcript of a

nonstenographic deposition be provided to other parties in advance

of trial for verification, an obvious concern since counsel often

utilize their own personnel to prepare transcripts from audio or

video tapes. By order or local rule, the court may require that

parties designate the particular portions of stenographic

depositions to be used at trial.

Subparagraph (C) requires disclosure of exhibits, including

summaries (whether to be offered in lieu of other documentary

evidence or to be used as an aid in understanding such evidence),

that may be offered as substantive evidence. The rule requires a

separate listing of each such exhibit, though it should permit

voluminous items of a similar or standardized character to be

described by meaningful categories. For example, unless the court

has otherwise directed, a series of vouchers might be shown

collectively as a single exhibit with their starting and ending

dates. As with witnesses, the exhibits that will probably be

offered are to be listed separately from those which are unlikely

to be offered but which are listed in order to preserve the right

to do so if needed because of developments during trial. Under

revised Rule 37(c)(1) the court can permit use of unlisted

documents the need for which could not reasonably have been

anticipated in advance of trial.

Upon receipt of these final pretrial disclosures, other parties

have 14 days (unless a different time is specified by the court) to

disclose any objections they wish to preserve to the usability of

the deposition testimony or to the admissibility of the documentary

evidence (other than under Rules 402 and 403 of the Federal Rules

of Evidence). Similar provisions have become commonplace either in

pretrial orders or by local rules, and significantly expedite the

presentation of evidence at trial, as well as eliminate the need to

have available witnesses to provide "foundation" testimony for most

items of documentary evidence. The listing of a potential objection

does not constitute the making of that objection or require the

court to rule on the objection; rather, it preserves the right of

the party to make the objection when and as appropriate during

trial. The court may, however, elect to treat the listing as a

motion "in limine" and rule upon the objections in advance of trial

to the extent appropriate.

The time specified in the rule for the final pretrial disclosures

is relatively close to the trial date. The objective is to

eliminate the time and expense in making these disclosures of

evidence and objections in those cases that settle shortly before

trial, while affording a reasonable time for final preparation for

trial in those cases that do not settle. In many cases, it will be

desirable for the court in a scheduling or pretrial order to set an

earlier time for disclosures of evidence and provide more time for

disclosing potential objections.

Paragraph (4). This paragraph prescribes the form of disclosures.

A signed written statement is required, reminding the parties and

counsel of the solemnity of the obligations imposed; and the

signature on the initial or pretrial disclosure is a certification

under subdivision (g)(1) that it is complete and correct as of the

time when made. Consistent with Rule 5(d), these disclosures are to

be filed with the court unless otherwise directed. It is

anticipated that many courts will direct that expert reports

required under paragraph (2)(B) not be filed until needed in

connection with a motion or for trial.

Paragraph (5). This paragraph is revised to take note of the

availability of revised Rule 45 for inspection from non-parties of

documents and premises without the need for a deposition.

Subdivision (b). This subdivision is revised in several respects.

First, former paragraph (1) is subdivided into two paragraphs for

ease of reference and to avoid renumbering of paragraphs (3) and

(4). Textual changes are then made in new paragraph (2) to enable

the court to keep tighter rein on the extent of discovery. The

information explosion of recent decades has greatly increased both

the potential cost of wide-ranging discovery and the potential for

discovery to be used as an instrument for delay or oppression.

Amendments to Rules 30, 31, and 33 place presumptive limits on the

number of depositions and interrogatories, subject to leave of

court to pursue additional discovery. The revisions in Rule

26(b)(2) are intended to provide the court with broader discretion

to impose additional restrictions on the scope and extent of

discovery and to authorize courts that develop case tracking

systems based on the complexity of cases to increase or decrease by

local rule the presumptive number of depositions and

interrogatories allowed in particular types or classifications of

cases. The revision also dispels any doubt as to the power of the

court to impose limitations on the length of depositions under Rule

30 or on the number of requests for admission under Rule 36.

Second, former paragraph (2), relating to insurance, has been

relocated as part of the required initial disclosures under

subdivision (a)(1)(D), and revised to provide for disclosure of the

policy itself.

Third, paragraph (4)(A) is revised to provide that experts who

are expected to be witnesses will be subject to deposition prior to

trial, conforming the norm stated in the rule to the actual

practice followed in most courts, in which depositions of experts

have become standard. Concerns regarding the expense of such

depositions should be mitigated by the fact that the expert's fees

for the deposition will ordinarily be borne by the party taking the

deposition. The requirement under subdivision (a)(2)(B) of a

complete and detailed report of the expected testimony of certain

forensic experts may, moreover, eliminate the need for some such

depositions or at least reduce the length of the depositions.

Accordingly, the deposition of an expert required by subdivision

(a)(2)(B) to provide a written report may be taken only after the

report has been served.

Paragraph (4)(C), bearing on compensation of experts, is revised

to take account of the changes in paragraph (4)(A).

Paragraph (5) is a new provision. A party must notify other

parties if it is withholding materials otherwise subject to

disclosure under the rule or pursuant to a discovery request

because it is asserting a claim of privilege or work product

protection. To withhold materials without such notice is contrary

to the rule, subjects the party to sanctions under Rule 37(b)(2),

and may be viewed as a waiver of the privilege or protection.

The party must also provide sufficient information to enable

other parties to evaluate the applicability of the claimed

privilege or protection. Although the person from whom the

discovery is sought decides whether to claim a privilege or

protection, the court ultimately decides whether, if this claim is

challenged, the privilege or protection applies. Providing

information pertinent to the applicability of the privilege or

protection should reduce the need for in camera examination of the

documents.

The rule does not attempt to define for each case what

information must be provided when a party asserts a claim of

privilege or work product protection. Details concerning time,

persons, general subject matter, etc., may be appropriate if only a

few items are withheld, but may be unduly burdensome when

voluminous documents are claimed to be privileged or protected,

particularly if the items can be described by categories. A party

can seek relief through a protective order under subdivision (c) if

compliance with the requirement for providing this information

would be an unreasonable burden. In rare circumstances some of the

pertinent information affecting applicability of the claim, such as

the identity of the client, may itself be privileged; the rule

provides that such information need not be disclosed.

The obligation to provide pertinent information concerning

withheld privileged materials applies only to items "otherwise

discoverable." If a broad discovery request is made - for example,

for all documents of a particular type during a twenty year period

- and the responding party believes in good faith that production

of documents for more than the past three years would be unduly

burdensome, it should make its objection to the breadth of the

request and, with respect to the documents generated in that three

year period, produce the unprivileged documents and describe those

withheld under the claim of privilege. If the court later rules

that documents for a seven year period are properly discoverable,

the documents for the additional four years should then be either

produced (if not privileged) or described (if claimed to be

privileged).

Subdivision (c). The revision requires that before filing a

motion for a protective order the movant must confer - either in

person or by telephone - with the other affected parties in a good

faith effort to resolve the discovery dispute without the need for

court intervention. If the movant is unable to get opposing parties

even to discuss the matter, the efforts in attempting to arrange

such a conference should be indicated in the certificate.

Subdivision (d). This subdivision is revised to provide that

formal discovery - as distinguished from interviews of potential

witnesses and other informal discovery - not commence until the

parties have met and conferred as required by subdivision (f).

Discovery can begin earlier if authorized under Rule 30(a)(2)(C)

(deposition of person about to leave the country) or by local rule,

order, or stipulation. This will be appropriate in some cases, such

as those involving requests for a preliminary injunction or motions

challenging personal jurisdiction. If a local rule exempts any

types of cases in which discovery may be needed from the

requirement of a meeting under Rule 26(f), it should specify when

discovery may commence in those cases.

The meeting of counsel is to take place as soon as practicable

and in any event at least 14 days before the date of the scheduling

conference under Rule 16(b) or the date a scheduling order is due

under Rule 16(b). The court can assure that discovery is not unduly

delayed either by entering a special order or by setting the case

for a scheduling conference.

Subdivision (e). This subdivision is revised to provide that the

requirement for supplementation applies to all disclosures required

by subdivisions (a)(1)-(3). Like the former rule, the duty, while

imposed on a "party," applies whether the corrective information is

learned by the client or by the attorney. Supplementations need not

be made as each new item of information is learned but should be

made at appropriate intervals during the discovery period, and with

special promptness as the trial date approaches. It may be useful

for the scheduling order to specify the time or times when

supplementations should be made.

The revision also clarifies that the obligation to supplement

responses to formal discovery requests applies to interrogatories,

requests for production, and requests for admissions, but not

ordinarily to deposition testimony. However, with respect to

experts from whom a written report is required under subdivision

(a)(2)(B), changes in the opinions expressed by the expert whether

in the report or at a subsequent deposition are subject to a duty

of supplemental disclosure under subdivision (e)(1).

The obligation to supplement disclosures and discovery responses

applies whenever a party learns that its prior disclosures or

responses are in some material respect incomplete or incorrect.

There is, however, no obligation to provide supplemental or

corrective information that has been otherwise made known to the

parties in writing or during the discovery process, as when a

witness not previously disclosed is identified during the taking of

a deposition or when an expert during a deposition corrects

information contained in an earlier report.

Subdivision (f). This subdivision was added in 1980 to provide a

party threatened with abusive discovery with a special means for

obtaining judicial intervention other than through discrete motions

under Rules 26(c) and 37(a). The amendment envisioned a two-step

process: first, the parties would attempt to frame a mutually

agreeable plan; second, the court would hold a "discovery

conference" and then enter an order establishing a schedule and

limitations for the conduct of discovery. It was contemplated that

the procedure, an elective one triggered on request of a party,

would be used in special cases rather than as a routine matter. As

expected, the device has been used only sparingly in most courts,

and judicial controls over the discovery process have ordinarily

been imposed through scheduling orders under Rule 16(b) or through

rulings on discovery motions.

The provisions relating to a conference with the court are

removed from subdivision (f). This change does not signal any

lessening of the importance of judicial supervision. Indeed, there

is a greater need for early judicial involvement to consider the

scope and timing of the disclosure requirements of Rule 26(a) and

the presumptive limits on discovery imposed under these rules or by

local rules. Rather, the change is made because the provisions

addressing the use of conferences with the court to control

discovery are more properly included in Rule 16, which is being

revised to highlight the court's powers regarding the discovery

process.

The desirability of some judicial control of discovery can hardly

be doubted. Rule 16, as revised, requires that the court set a time

for completion of discovery and authorizes various other orders

affecting the scope, timing, and extent of discovery and

disclosures. Before entering such orders, the court should consider

the views of the parties, preferably by means of a conference, but

at the least through written submissions. Moreover, it is desirable

that the parties' proposals regarding discovery be developed

through a process where they meet in person, informally explore the

nature and basis of the issues, and discuss how discovery can be

conducted most efficiently and economically.

As noted above, former subdivision (f) envisioned the development

of proposed discovery plans as an optional procedure to be used in

relatively few cases. The revised rule directs that in all cases

not exempted by local rule or special order the litigants must meet

in person and plan for discovery. Following this meeting, the

parties submit to the court their proposals for a discovery plan

and can begin formal discovery. Their report will assist the court

in seeing that the timing and scope of disclosures under revised

Rule 26(a) and the limitations on the extent of discovery under

these rules and local rules are tailored to the circumstances of

the particular case.

To assure that the court has the litigants' proposals before

deciding on a scheduling order and that the commencement of

discovery is not delayed unduly, the rule provides that the meeting

of the parties take place as soon as practicable and in any event

at least 14 days before a scheduling conference is held or before a

scheduling order is due under Rule 16(b). (Rule 16(b) requires that

a scheduling order be entered within 90 days after the first

appearance of a defendant or, if earlier, within 120 days after the

complaint has been served on any defendant.) The obligation to

participate in the planning process is imposed on all parties that

have appeared in the case, including defendants who, because of a

pending Rule 12 motion, may not have yet filed an answer in the

case. Each such party should attend the meeting, either through one

of its attorneys or in person if unrepresented. If more parties are

joined or appear after the initial meeting, an additional meeting

may be desirable.

Subdivision (f) describes certain matters that should be

accomplished at the meeting and included in the proposed discovery

plan. This listing does not exclude consideration of other

subjects, such as the time when any dispositive motions should be

filed and when the case should be ready for trial.

The parties are directed under subdivision (a)(1) to make the

disclosures required by that subdivision at or within 10 days after

this meeting. In many cases the parties should use the meeting to

exchange, discuss, and clarify their respective disclosures. In

other cases, it may be more useful if the disclosures are delayed

until after the parties have discussed at the meeting the claims

and defenses in order to define the issues with respect to which

the initial disclosures should be made. As discussed in the Notes

to subdivision (a)(1), the parties may also need to consider

whether a stipulation extending this 10-day period would be

appropriate, as when a defendant would otherwise have less than 60

days after being served in which to make its initial disclosure.

The parties should also discuss at the meeting what additional

information, although not subject to the disclosure requirements,

can be made available informally without the necessity for formal

discovery requests.

The report is to be submitted to the court within 10 days after

the meeting and should not be difficult to prepare. In most cases

counsel should be able to agree that one of them will be

responsible for its preparation and submission to the court. Form

35 has been added in the Appendix to the Rules, both to illustrate

the type of report that is contemplated and to serve as a checklist

for the meeting.

The litigants are expected to attempt in good faith to agree on

the contents of the proposed discovery plan. If they cannot agree

on all aspects of the plan, their report to the court should

indicate the competing proposals of the parties on those items, as

well as the matters on which they agree. Unfortunately, there may

be cases in which, because of disagreements about time or place or

for other reasons, the meeting is not attended by all parties or,

indeed, no meeting takes place. In such situations, the report - or

reports - should describe the circumstances and the court may need

to consider sanctions under Rule 37(g).

By local rule or special order, the court can exempt particular

cases or types of cases from the meet-and-confer requirement of

subdivision (f). In general this should include any types of cases

which are exempted by local rule from the requirement for a

scheduling order under Rule 16(b), such as cases in which there

will be no discovery (e.g., bankruptcy appeals and reviews of

social security determinations). In addition, the court may want to

exempt cases in which discovery is rarely needed (e.g., government

collection cases and proceedings to enforce administrative

summonses) or in which a meeting of the parties might be

impracticable (e.g., actions by unrepresented prisoners). Note that

if a court exempts from the requirements for a meeting any types of

cases in which discovery may be needed, it should indicate when

discovery may commence in those cases.

Subdivision (g). Paragraph (1) is added to require signatures on

disclosures, a requirement that parallels the provisions of

paragraph (2) with respect to discovery requests, responses, and

objections. The provisions of paragraph (3) have been modified to

be consistent with Rules 37(a)(4) and 37(c)(1); in combination,

these rules establish sanctions for violation of the rules

regarding disclosures and discovery matters. Amended Rule 11 no

longer applies to such violations.

COMMITTEE NOTES ON RULES - 2000 AMENDMENT

Purposes of amendments. The Rule 26(a)(1) initial disclosure

provisions are amended to establish a nationally uniform practice.

The scope of the disclosure obligation is narrowed to cover only

information that the disclosing party may use to support its

position. In addition, the rule exempts specified categories of

proceedings from initial disclosure, and permits a party who

contends that disclosure is not appropriate in the circumstances of

the case to present its objections to the court, which must then

determine whether disclosure should be made. Related changes are

made in Rules 26(d) and (f).

The initial disclosure requirements added by the 1993 amendments

permitted local rules directing that disclosure would not be

required or altering its operation. The inclusion of the "opt out"

provision reflected the strong opposition to initial disclosure

felt in some districts, and permitted experimentation with

differing disclosure rules in those districts that were favorable

to disclosure. The local option also recognized that - partly in

response to the first publication in 1991 of a proposed disclosure

rule - many districts had adopted a variety of disclosure programs

under the aegis of the Civil Justice Reform Act. It was hoped that

developing experience under a variety of disclosure systems would

support eventual refinement of a uniform national disclosure

practice. In addition, there was hope that local experience could

identify categories of actions in which disclosure is not useful.

A striking array of local regimes in fact emerged for disclosure

and related features introduced in 1993. See D. Stienstra,

Implementation of Disclosure in United States District Courts, With

Specific Attention to Courts' Responses to Selected Amendments to

Federal Rule of Civil Procedure 26 (Federal Judicial Center, March

30, 1998) (describing and categorizing local regimes). In its final

report to Congress on the CJRA experience, the Judicial Conference

recommended reexamination of the need for national uniformity,

particularly in regard to initial disclosure. Judicial Conference,

Alternative Proposals for Reduction of Cost and Delay: Assessment

of Principles, Guidelines and Techniques, 175 F.R.D. 62, 98 (1997).

At the Committee's request, the Federal Judicial Center undertook

a survey in 1997 to develop information on current disclosure and

discovery practices. See T. Willging, J. Shapard, D. Stienstra & D.

Miletich, Discovery and Disclosure Practice, Problems, and

Proposals for Change (Federal Judicial Center, 1997). In addition,

the Committee convened two conferences on discovery involving

lawyers from around the country and received reports and

recommendations on possible discovery amendments from a number of

bar groups. Papers and other proceedings from the second conference

are published in 39 Boston Col. L. Rev. 517-840 (1998).

The Committee has discerned widespread support for national

uniformity. Many lawyers have experienced difficulty in coping with

divergent disclosure and other practices as they move from one

district to another. Lawyers surveyed by the Federal Judicial

Center ranked adoption of a uniform national disclosure rule second

among proposed rule changes (behind increased availability of

judges to resolve discovery disputes) as a means to reduce

litigation expenses without interfering with fair outcomes.

Discovery and Disclosure Practice, supra, at 44-45. National

uniformity is also a central purpose of the Rules Enabling Act of

1934, as amended, 28 U.S.C. Secs. 2072-2077.

These amendments restore national uniformity to disclosure

practice. Uniformity is also restored to other aspects of discovery

by deleting most of the provisions authorizing local rules that

vary the number of permitted discovery events or the length of

depositions. Local rule options are also deleted from Rules 26(d)

and (f).

Subdivision (a)(1). The amendments remove the authority to alter

or opt out of the national disclosure requirements by local rule,

invalidating not only formal local rules but also informal

"standing" orders of an individual judge or court that purport to

create exemptions from - or limit or expand - the disclosure

provided under the national rule. See Rule 83. Case-specific orders

remain proper, however, and are expressly required if a party

objects that initial disclosure is not appropriate in the

circumstances of the action. Specified categories of proceedings

are excluded from initial disclosure under subdivision (a)(1)(E).

In addition, the parties can stipulate to forgo disclosure, as was

true before. But even in a case excluded by subdivision (a)(1)(E)

or in which the parties stipulate to bypass disclosure, the court

can order exchange of similar information in managing the action

under Rule 16.

The initial disclosure obligation of subdivisions (a)(1)(A) and

(B) has been narrowed to identification of witnesses and documents

that the disclosing party may use to support its claims or

defenses. "Use" includes any use at a pretrial conference, to

support a motion, or at trial. The disclosure obligation is also

triggered by intended use in discovery, apart from use to respond

to a discovery request; use of a document to question a witness

during a deposition is a common example. The disclosure obligation

attaches both to witnesses and documents a party intends to use and

also to witnesses and to documents the party intends to use if - in

the language of Rule 26(a)(3) - "the need arises."

A party is no longer obligated to disclose witnesses or

documents, whether favorable or unfavorable, that it does not

intend to use. The obligation to disclose information the party may

use connects directly to the exclusion sanction of Rule 37(c)(1).

Because the disclosure obligation is limited to material that the

party may use, it is no longer tied to particularized allegations

in the pleadings. Subdivision (e)(1), which is unchanged, requires

supplementation if information later acquired would have been

subject to the disclosure requirement. As case preparation

continues, a party must supplement its disclosures when it

determines that it may use a witness or document that it did not

previously intend to use.

The disclosure obligation applies to "claims and defenses," and

therefore requires a party to disclose information it may use to

support its denial or rebuttal of the allegations, claim, or

defense of another party. It thereby bolsters the requirements of

Rule 11(b)(4), which authorizes denials "warranted on the

evidence," and disclosure should include the identity of any

witness or document that the disclosing party may use to support

such denials.

Subdivision (a)(3) presently excuses pretrial disclosure of

information solely for impeachment. Impeachment information is

similarly excluded from the initial disclosure requirement.

Subdivisions (a)(1)(C) and (D) are not changed. Should a case be

exempted from initial disclosure by Rule 26(a)(1)(E) or by

agreement or order, the insurance information described by

subparagraph (D) should be subject to discovery, as it would have

been under the principles of former Rule 26(b)(2), which was added

in 1970 and deleted in 1993 as redundant in light of the new

initial disclosure obligation.

New subdivision (a)(1)(E) excludes eight specified categories of

proceedings from initial disclosure. The objective of this listing

is to identify cases in which there is likely to be little or no

discovery, or in which initial disclosure appears unlikely to

contribute to the effective development of the case. The list was

developed after a review of the categories excluded by local rules

in various districts from the operation of Rule 16(b) and the

conference requirements of subdivision (f). Subdivision (a)(1)(E)

refers to categories of "proceedings" rather than categories of

"actions" because some might not properly be labeled "actions."

Case designations made by the parties or the clerk's office at the

time of filing do not control application of the exemptions. The

descriptions in the rule are generic and are intended to be

administered by the parties - and, when needed, the courts - with

the flexibility needed to adapt to gradual evolution in the types

of proceedings that fall within these general categories. The

exclusion of an action for review on an administrative record, for

example, is intended to reach a proceeding that is framed as an

"appeal" based solely on an administrative record. The exclusion

should not apply to a proceeding in a form that commonly permits

admission of new evidence to supplement the record. Item (vii),

excluding a proceeding ancillary to proceedings in other courts,

does not refer to bankruptcy proceedings; application of the Civil

Rules to bankruptcy proceedings is determined by the Bankruptcy

Rules.

Subdivision (a)(1)(E) is likely to exempt a substantial

proportion of the cases in most districts from the initial

disclosure requirement. Based on 1996 and 1997 case filing

statistics, Federal Judicial Center staff estimate that,

nationwide, these categories total approximately one-third of all

civil filings.

The categories of proceedings listed in subdivision (a)(1)(E) are

also exempted from the subdivision (f) conference requirement and

from the subdivision (d) moratorium on discovery. Although there is

no restriction on commencement of discovery in these cases, it is

not expected that this opportunity will often lead to abuse since

there is likely to be little or no discovery in most such cases.

Should a defendant need more time to respond to discovery requests

filed at the beginning of an exempted action, it can seek relief by

motion under Rule 26(c) if the plaintiff is unwilling to defer the

due date by agreement.

Subdivision (a)(1)(E)'s enumeration of exempt categories is

exclusive. Although a case-specific order can alter or excuse

initial disclosure, local rules or "standing" orders that purport

to create general exemptions are invalid. See Rule 83.

The time for initial disclosure is extended to 14 days after the

subdivision (f) conference unless the court orders otherwise. This

change is integrated with corresponding changes requiring that the

subdivision (f) conference be held 21 days before the Rule 16(b)

scheduling conference or scheduling order, and that the report on

the subdivision (f) conference be submitted to the court 14 days

after the meeting. These changes provide a more orderly opportunity

for the parties to review the disclosures, and for the court to

consider the report. In many instances, the subdivision (f)

conference and the effective preparation of the case would benefit

from disclosure before the conference, and earlier disclosure is

encouraged.

The presumptive disclosure date does not apply if a party objects

to initial disclosure during the subdivision (f) conference and

states its objection in the subdivision (f) discovery plan. The

right to object to initial disclosure is not intended to afford

parties an opportunity to "opt out" of disclosure unilaterally. It

does provide an opportunity for an objecting party to present to

the court its position that disclosure would be "inappropriate in

the circumstances of the action." Making the objection permits the

objecting party to present the question to the judge before any

party is required to make disclosure. The court must then rule on

the objection and determine what disclosures - if any - should be

made. Ordinarily, this determination would be included in the Rule

16(b) scheduling order, but the court could handle the matter in a

different fashion. Even when circumstances warrant suspending some

disclosure obligations, others - such as the damages and insurance

information called for by subdivisions (a)(1)(C) and (D) - may

continue to be appropriate.

The presumptive disclosure date is also inapplicable to a party

who is "first served or otherwise joined" after the subdivision (f)

conference. This phrase refers to the date of service of a claim on

a party in a defensive posture (such as a defendant or third-party

defendant), and the date of joinder of a party added as a claimant

or an intervenor. Absent court order or stipulation, a new party

has 30 days in which to make its initial disclosures. But it is

expected that later-added parties will ordinarily be treated the

same as the original parties when the original parties have

stipulated to forgo initial disclosure, or the court has ordered

disclosure in a modified form.

Subdivision (a)(3). The amendment to Rule 5(d) forbids filing

disclosures under subdivisions (a)(1) and (a)(2) until they are

used in the proceeding, and this change is reflected in an

amendment to subdivision (a)(4). Disclosures under subdivision

(a)(3), however, may be important to the court in connection with

the final pretrial conference or otherwise in preparing for trial.

The requirement that objections to certain matters be filed points

up the court's need to be provided with these materials.

Accordingly, the requirement that subdivision (a)(3) materials be

filed has been moved from subdivision (a)(4) to subdivision (a)(3),

and it has also been made clear that they - and any objections -

should be filed "promptly."

Subdivision (a)(4). The filing requirement has been removed from

this subdivision. Rule 5(d) has been amended to provide that

disclosures under subdivisions (a)(1) and (a)(2) must not be filed

until used in the proceeding. Subdivision (a)(3) has been amended

to require that the disclosures it directs, and objections to them,

be filed promptly. Subdivision (a)(4) continues to require that all

disclosures under subdivisions (a)(1), (a)(2), and (a)(3) be in

writing, signed, and served.

"Shall" is replaced by "must" under the program to conform

amended rules to current style conventions when there is no

ambiguity.

Subdivision (b)(1). In 1978, the Committee published for comment

a proposed amendment, suggested by the Section of Litigation of the

American Bar Association, to refine the scope of discovery by

deleting the "subject matter" language. This proposal was

withdrawn, and the Committee has since then made other changes in

the discovery rules to address concerns about overbroad discovery.

Concerns about costs and delay of discovery have persisted

nonetheless, and other bar groups have repeatedly renewed similar

proposals for amendment to this subdivision to delete the "subject

matter" language. Nearly one-third of the lawyers surveyed in 1997

by the Federal Judicial Center endorsed narrowing the scope of

discovery as a means of reducing litigation expense without

interfering with fair case resolutions. Discovery and Disclosure

Practice, supra, at 44-45 (1997). The Committee has heard that in

some instances, particularly cases involving large quantities of

discovery, parties seek to justify discovery requests that sweep

far beyond the claims and defenses of the parties on the ground

that they nevertheless have a bearing on the "subject matter"

involved in the action.

The amendments proposed for subdivision (b)(1) include one

element of these earlier proposals but also differ from these

proposals in significant ways. The similarity is that the

amendments describe the scope of party-controlled discovery in

terms of matter relevant to the claim or defense of any party. The

court, however, retains authority to order discovery of any matter

relevant to the subject matter involved in the action for good

cause. The amendment is designed to involve the court more actively

in regulating the breadth of sweeping or contentious discovery. The

Committee has been informed repeatedly by lawyers that involvement

of the court in managing discovery is an important method of

controlling problems of inappropriately broad discovery. Increasing

the availability of judicial officers to resolve discovery disputes

and increasing court management of discovery were both strongly

endorsed by the attorneys surveyed by the Federal Judicial Center.

See Discovery and Disclosure Practice, supra, at 44. Under the

amended provisions, if there is an objection that discovery goes

beyond material relevant to the parties' 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 warranting broader

discovery is meant to be flexible.

The Committee intends that the parties and the court focus on the

actual claims and defenses involved in the action. The dividing

line between information relevant to the claims and defenses and

that relevant only to the subject matter of the action cannot be

defined with precision. A variety of types of information not

directly pertinent to the incident in suit could be relevant to the

claims or defenses raised in a given action. For example, other

incidents of the same type, or involving the same product, could be

properly discoverable under the revised standard. Information about

organizational arrangements or filing systems of a party could be

discoverable if likely to yield or lead to the discovery of

admissible information. Similarly, information that could be used

to impeach a likely witness, although not otherwise relevant to the

claims or defenses, might be properly discoverable. In each

instance, the determination whether such information is

discoverable because it is relevant to the claims or defenses

depends on the circumstances of the pending action.

The rule change 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. In general, it is hoped that

reasonable lawyers can cooperate to manage discovery without the

need for judicial intervention. When judicial intervention is

invoked, the actual scope of discovery should be determined

according to the reasonable needs of the action. The court may

permit broader discovery in a particular case depending on the

circumstances of the case, the nature of the claims and defenses,

and the scope of the discovery requested.

The amendments also modify the provision regarding discovery of

information not admissible in evidence. As added in 1946, this

sentence was designed to make clear that otherwise relevant

material could not be withheld because it was hearsay or otherwise

inadmissible. The Committee was concerned that the "reasonably

calculated to lead to the discovery of admissible evidence"

standard set forth in this sentence might swallow any other

limitation on the scope of discovery. Accordingly, this sentence

has been amended to clarify that information must be relevant to be

discoverable, even though inadmissible, and that discovery of such

material is permitted if reasonably calculated to lead to the

discovery of admissible evidence. As used here, "relevant" means

within the scope of discovery as defined in this subdivision, and

it would include information relevant to the subject matter

involved in the action if the court has ordered discovery to that

limit based on a showing of good cause.

Finally, a sentence has been added calling attention to the

limitations of subdivision (b)(2)(i), (ii), and (iii). These

limitations apply to discovery that is otherwise within the scope

of subdivision (b)(1). The Committee has been told repeatedly that

courts have not implemented these limitations with the vigor that

was contemplated. See 8 Federal Practice & Procedure Sec. 2008.1 at

121. This otherwise redundant cross-reference has been added to

emphasize the need for active judicial use of subdivision (b)(2) to

control excessive discovery. Cf. Crawford-El v. Britton, 118 S. Ct.

1584, 1597 (1998) (quoting Rule 26(b)(2)(iii) and stating that

"Rule 26 vests the trial judge with broad discretion to tailor

discovery narrowly").

Subdivision (b)(2). Rules 30, 31, and 33 establish presumptive

national limits on the numbers of depositions and interrogatories.

New Rule 30(d)(2) establishes a presumptive limit on the length of

depositions. Subdivision (b)(2) is amended to remove the previous

permission for local rules that establish different presumptive

limits on these discovery activities. There is no reason to believe

that unique circumstances justify varying these

nationally-applicable presumptive limits in certain districts. The

limits can be modified by court order or agreement in an individual

action, but "standing" orders imposing different presumptive limits

are not authorized. Because there is no national rule limiting the

number of Rule 36 requests for admissions, the rule continues to

authorize local rules that impose numerical limits on them. This

change is not intended to interfere with differentiated case

management in districts that use this technique by case-specific

order as part of their Rule 16 process.

Subdivision (d). The amendments remove the prior authority to

exempt cases by local rule from the moratorium on discovery before

the subdivision (f) conference, but the categories of proceedings

exempted from initial disclosure under subdivision (a)(1)(E) are

excluded from subdivision (d). The parties may agree to disregard

the moratorium where it applies, and the court may so order in a

case, but "standing" orders altering the moratorium are not

authorized.

Subdivision (f). As in subdivision (d), the amendments remove the

prior authority to exempt cases by local rule from the conference

requirement. The Committee has been informed that the addition of

the conference was one of the most successful changes made in the

1993 amendments, and it therefore has determined to apply the

conference requirement nationwide. The categories of proceedings

exempted from initial disclosure under subdivision (a)(1)(E) are

exempted from the conference requirement for the reasons that

warrant exclusion from initial disclosure. The court may order that

the conference need not occur in a case where otherwise required,

or that it occur in a case otherwise exempted by subdivision

(a)(1)(E). "Standing" orders altering the conference requirement

for categories of cases are not authorized.

The rule is amended to require only a "conference" of the

parties, rather than a "meeting." There are important benefits to

face-to-face discussion of the topics to be covered in the

conference, and those benefits may be lost if other means of

conferring were routinely used when face-to-face meetings would not

impose burdens. Nevertheless, geographic conditions in some

districts may exact costs far out of proportion to these benefits.

The amendment allows the court by case-specific order to require a

face-to-face meeting, but "standing" orders so requiring are not

authorized.

As noted concerning the amendments to subdivision (a)(1), the

time for the conference has been changed to at least 21 days before

the Rule 16 scheduling conference, and the time for the report is

changed to no more than 14 days after the Rule 26(f) conference.

This should ensure that the court will have the report well in

advance of the scheduling conference or the entry of the scheduling

order.

Since Rule 16 was amended in 1983 to mandate some case management

activities in all courts, it has included deadlines for completing

these tasks to ensure that all courts do so within a reasonable

time. Rule 26(f) was fit into this scheme when it was adopted in

1993. It was never intended, however, that the national

requirements that certain activities be completed by a certain time

should delay case management in districts that move much faster

than the national rules direct, and the rule is therefore amended

to permit such a court to adopt a local rule that shortens the

period specified for the completion of these tasks.

"Shall" is replaced by "must," "does," or an active verb under

the program to conform amended rules to current style conventions

when there is no ambiguity.

GAP Report. The Advisory Committee recommends that the amendments

to Rules 26(a)(1)(A) and (B) be changed so that initial disclosure

applies to information the disclosing party "may use to support"

its claims or defenses. It also recommends changes in the Committee

Note to explain that disclosure requirement. In addition, it

recommends inclusion in the Note of further explanatory matter

regarding the exclusion from initial disclosure provided in new

Rule 26(a)(1)(E) for actions for review on an administrative record

and the impact of these exclusions on bankruptcy proceedings. Minor

wording improvements in the Note are also proposed.

The Advisory Committee recommends changing the rule to authorize

the court to expand discovery to any "matter" - not "information" -

relevant to the subject matter involved in the action. In addition,

it recommends additional clarifying material in the Committee Note

about the impact of the change on some commonly disputed discovery

topics, the relationship between cost-bearing under Rule 26(b)(2)

and expansion of the scope of discovery on a showing of good cause,

and the meaning of "relevant" in the revision to the last sentence

of current subdivision (b)(1). In addition, some minor

clarifications of language changes have been proposed for the

Committee Note.

The Advisory Committee recommends adding a sentence to the

published amendments to Rule 26(f) authorizing local rules

shortening the time between the attorney conference and the court's

action under Rule 16(b), and addition to the Committee Note of

explanatory material about this change to the rule. This addition

can be made without republication in response to public comments.

-End-

-CITE-

28 USC APPENDIX Rule 27 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 27. Depositions Before Action or Pending Appeal

-STATUTE-

(a) Before Action.

(1) Petition. A person who desires to perpetuate testimony

regarding any matter that may be cognizable in any court of the

United States may file a verified petition in the United States

district court in the district of the residence of any expected

adverse party. The petition shall be entitled in the name of the

petitioner and shall show: 1, that the petitioner expects to be a

party to an action cognizable in a court of the United States but

is presently unable to bring it or cause it to be brought, 2, the

subject matter of the expected action and the petitioner's

interest therein, 3, the facts which the petitioner desires to

establish by the proposed testimony and the reasons for desiring

to perpetuate it, 4, the names or a description of the persons

the petitioner expects will be adverse parties and their

addresses so far as known, and 5, the names and addresses of the

persons to be examined and the substance of the testimony which

the petitioner expects to elicit from each, and shall ask for an

order authorizing the petitioner to take the depositions of the

persons to be examined named in the petition, for the purpose of

perpetuating their testimony.

(2) Notice and Service. The petitioner shall thereafter serve a

notice upon each person named in the petition as an expected

adverse party, together with a copy of the petition, stating that

the petitioner will apply to the court, at a time and place named

therein, for the order described in the petition. At least 20

days before the date of hearing the notice shall be served either

within or without the district or state in the manner provided in

Rule 4(d) for service of summons; but if such service cannot with

due diligence be made upon any expected adverse party named in

the petition, the court may make such order as is just for

service by publication or otherwise, and shall appoint, for

persons not served in the manner provided in Rule 4(d), an

attorney who shall represent them, and, in case they are not

otherwise represented, shall cross-examine the deponent. If any

expected adverse party is a minor or incompetent the provisions

of Rule 17(c) apply.

(3) Order and Examination. If the court is satisfied that the

perpetuation of the testimony may prevent a failure or delay of

justice, it shall make an order designating or describing the

persons whose depositions may be taken and specifying the subject

matter of the examination and whether the depositions shall be

taken upon oral examination or written interrogatories. The

depositions may then be taken in accordance with these rules; and

the court may make orders of the character provided for by Rules

34 and 35. For the purpose of applying these rules to depositions

for perpetuating testimony, each reference therein to the court

in which the action is pending shall be deemed to refer to the

court in which the petition for such deposition was filed.

(4) Use of Deposition. If a deposition to perpetuate testimony

is taken under these rules or if, although not so taken, it would

be admissible in evidence in the courts of the state in which it

is taken, it may be used in any action involving the same subject

matter subsequently brought in a United States district court, in

accordance with the provisions of Rule 32(a).

(b) Pending Appeal. If an appeal has been taken from a judgment

of a district court or before the taking of an appeal if the time

therefor has not expired, the district court in which the judgment

was rendered may allow the taking of the depositions of witnesses

to perpetuate their testimony for use in the event of further

proceedings in the district court. In such case the party who

desires to perpetuate the testimony may make a motion in the

district court for leave to take the depositions, upon the same

notice and service thereof as if the action was pending in the

district court. The motion shall show (1) the names and addresses

of persons to be examined and the substance of the testimony which

the party expects to elicit from each; (2) the reasons for

perpetuating their testimony. If the court finds that the

perpetuation of the testimony is proper to avoid a failure or delay

of justice, it may make an order allowing the depositions to be

taken and may make orders of the character provided for by Rules 34

and 35, and thereupon the depositions may be taken and used in the

same manner and under the same conditions as are prescribed in

these rules for depositions taken in actions pending in the

district court.

(c) Perpetuation by Action. This rule does not limit the power of

a court to entertain an action to perpetuate testimony.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.

Oct. 20, 1949; Mar. 1, 1971, eff. July 1, 1971; Mar. 2, 1987, eff.

Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). This rule offers a simple method of

perpetuating testimony in cases where it is usually allowed under

equity practice or under modern statutes. See Arizona v.

California, 292 U.S. 341 (1934); Todd Engineering Dry Dock and

Repair Co. v. United States, 32 F.(2d) 734 (C.C.A.5th, 1929); Hall

v. Stout, 4 Del. ch. 269 (1871). For comparable state statutes see

Ark.Civ.Code (Crawford, 1934) Secs. 666-670; Calif.Code Civ.Proc.

(Deering, 1937) 2083-2089; Ill.Rev.Stat. (1937) ch. 51, Secs.

39-46; Iowa Code (1935) Secs. 11400-11407; 2 Mass.Gen.Laws

(Ter.Ed., 1932) ch. 233, Sec. 46-63; N.Y.C.P.A. (1937) Sec. 295;

Ohio Gen.Code Ann. ((Throckmorton, 1936) Sec. 12216-12222; Va.Code

Ann. (Michie, 1936) Sec. 6235; Wisc.Stat. (1935) Secs.

326.27-326.29. The appointment of an attorney to represent absent

parties or parties not personally notified, or a guardian ad litem

to represent minors and incompetents, is provided for in several of

the above statutes.

Note to Subdivision (b). This follows the practice approved in

Richter v. Union Trust Co., 115 U.S. 55 (1885), by extending the

right to perpetuate testimony to cases pending an appeal.

Note to Subdivision (c). This preserves the right to employ a

separate action to perpetuate testimony under U.S.C., Title 28,

[former] Sec. 644 (Depositions under dedimus potestatem and in

perpetuam) as an alternate method.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

Since the second sentence in subdivision (a)(3) refers only to

depositions, it is arguable that Rules 34 and 35 are inapplicable

in proceedings to perpetuate testimony. The new matter [in

subdivisions (a)(3) and (b)] clarifies. A conforming change is also

made in subdivision (b).

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

The only changes are in nomenclature to conform to the official

designation of a district court in Title 28, U.S.C., Sec. 132(a).

NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT

The reference intended in this subdivision is to the rule

governing the use of depositions in court proceedings. Formerly

Rule 26(d), that rule is now Rule 32(a). The subdivision is amended

accordingly.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 28 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 28. Persons Before Whom Depositions May Be Taken

-STATUTE-

(a) Within the United States. Within the United States or within

a territory or insular possession subject to the jurisdiction of

the United States, depositions shall be taken before an officer

authorized to administer oaths by the laws of the United States or

of the place where the examination is held, or before a person

appointed by the court in which the action is pending. A person so

appointed has power to administer oaths and take testimony. The

term officer as used in Rules 30, 31 and 32 includes a person

appointed by the court or designated by the parties under Rule 29.

(b) In Foreign Countries. Depositions may be taken in a foreign

country (1) pursuant to any applicable treaty or convention, or (2)

pursuant to a letter of request (whether or not captioned a letter

rogatory), or (3) on notice before a person authorized to

administer oaths in the place where the examination is held, either

by the law thereof or by the law of the United States, or (4)

before a person commissioned by the court, and a person so

commissioned shall have the power by virtue of the commission to

administer any necessary oath and take testimony. A commission or a

letter of request shall be issued on application and notice and on

terms that are just and appropriate. It is not requisite to the

issuance of a commission or a letter of request that the taking of

the deposition in any other manner is impracticable or

inconvenient; and both a commission and a letter of request may be

issued in proper cases. A notice or commission may designate the

person before whom the deposition is to be taken either by name or

descriptive title. A letter of request may be addressed "To the

Appropriate Authority in [here name the country]." When a letter of

request or any other device is used pursuant to any applicable

treaty or convention, it shall be captioned in the form prescribed

by that treaty or convention. Evidence obtained in response to a

letter of request need not be excluded merely because it is not a

verbatim transcript, because the testimony was not taken under

oath, or because of any similar departure from the requirements for

depositions taken within the United States under these rules.

(c) Disqualification for Interest. No deposition shall be taken

before a person who is a relative or employee or attorney or

counsel of any of the parties, or is a relative or employee of such

attorney or counsel, or is financially interested in the action.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.

July 1, 1963; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff.

Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

In effect this rule is substantially the same as U.S.C., Title

28, [former] Sec. 639 (Depositions de bene esse; when and where

taken; notice). U.S.C., Title 28, [former] Sec. 642 (Depositions,

acknowledgements, and affidavits taken by notaries public) does not

conflict with subdivision (a).

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

The added language [in subdivision (a)] provides for the

situation, occasionally arising, when depositions must be taken in

an isolated place where there is no one readily available who has

the power to administer oaths and take testimony according to the

terms of the rule as originally stated. In addition, the amendment

affords a more convenient method of securing depositions in the

case where state lines intervene between the location of various

witnesses otherwise rather closely grouped. The amendment insures

that the person appointed shall have adequate power to perform his

duties. It has been held that a person authorized to act in the

premises, as, for example, a master, may take testimony outside the

district of his appointment. Consolidated Fastener Co. v. Columbian

Button & Fastener Co. (C.C.N.D.N.Y. 1898) 85 Fed. 54; Mathieson

Alkali Works v. Arnold, Hoffman & Co. (C.C.A.1st, 1929) 31 F.(2d)

1.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

The amendment of clause (1) is designed to facilitate depositions

in foreign countries by enlarging the class of persons before whom

the depositions may be taken on notice. The class is no longer

confined, as at present, to a secretary of embassy or legation,

consul general, consul, vice consul, or consular agent of the

United States. In a country that regards the taking of testimony by

a foreign official in aid of litigation pending in a court of

another country as an infringement upon its sovereignty, it will be

expedient to notice depositions before officers of the country in

which the examination is taken. See generally Symposium, Letters

Rogatory (Grossman ed. 1956); Doyle, Taking Evidence by Deposition

and Letters Rogatory and Obtaining Documents in Foreign Territory,

Proc. A.B.A., Sec. Int'l & Comp. L. 37 (1959); Heilpern, Procuring

Evidence Abroad, 14 Tul.L.Rev. 29 (1939); Jones, International

Judicial Assistance: Procedural Chaos and a Program for Reform, 62

Yale L.J. 515, 526-29 (1953); Smit, International Aspects of

Federal Civil Procedure, 61 Colum.L.Rev. 1031, 1056-58 (1961).

Clause (2) of amended subdivision (b), like the corresponding

provision of subdivision (a) dealing with depositions taken in the

United States, makes it clear that the appointment of a person by

commission in itself confers power upon him to administer any

necessary oath.

It has been held that a letter rogatory will not be issued unless

the use of a notice or commission is shown to be impossible or

impractical. See, e.g., United States v. Matles, 154 F.Supp. 574

(E.D.N.Y. 1957); The Edmund Fanning, 89 F.Supp. 282 (E.D.N.Y.

1950); Branyan v. Koninklijke Luchtvaart Maatschappij, 13 F.R.D.

425 (S.D.N.Y. 1953). See also Ali Akber Kiachif v. Philco

International Corp., 10 F.R.D. 277 (S.D.N.Y. 1950). The intent of

the fourth sentence of the amended subdivision is to overcome this

judicial antipathy and to permit a sound choice between depositions

under a letter rogatory and on notice or by commission in the light

of all the circumstances. In a case in which the foreign country

will compel a witness to attend or testify in aid of a letter

rogatory but not in aid of a commission, a letter rogatory may be

preferred on the ground that it is less expensive to execute, even

if there is plainly no need for compulsive process. A letter

rogatory may also be preferred when it cannot be demonstrated that

a witness will be recalcitrant or when the witness states that he

is willing to testify voluntarily, but the contingency exists that

he will change his mind at the last moment. In the latter case, it

may be advisable to issue both a commission and a letter rogatory,

the latter to be executed if the former fails. The choice between a

letter rogatory and a commission may be conditioned by other

factors, including the nature and extent of the assistance that the

foreign country will give to the execution of either.

In executing a letter rogatory the courts of other countries may

be expected to follow their customary procedure for taking

testimony. See United States v. Paraffin Wax, 2255 Bags, 23 F.R.D.

289 (E.D.N.Y. 1959). In many non-common-law countries the judge

questions the witness, sometimes without first administering an

oath, the attorneys put any supplemental questions either to the

witness or through the judge, and the judge dictates a summary of

the testimony, which the witness acknowledges as correct. See

Jones, supra, at 530-32; Doyle, supra, at 39-41. The last sentence

of the amended subdivision provides, contrary to the implications

of some authority, that evidence recorded in such a fashion need

not be excluded on that account. See The Mandu, 11 F.Supp. 845

(E.D.N.Y. 1935). But cf. Nelson v. United States, 17 Fed.Cas. 1340

(No. 10,116) (C.C.D.Pa. 1816); Winthrop v. Union Ins. Co., 30

Fed.Cas. 376 (No. 17901) (C.C.D.Pa. 1807). The specific reference

to the lack of an oath or a verbatim transcript is intended to be

illustrative. Whether or to what degree the value or weight of the

evidence may be affected by the method of taking or recording the

testimony is left for determination according to the circumstances

of the particular case, cf. Uebersee Finanz-Korporation, A.G. v.

Brownell, 121 F.Supp. 420 (D.D.C. 1954); Danisch v. Guardian Life

Ins. Co., 19 F.R.D. 235 (S.D.N.Y. 1956); the testimony may indeed

be so devoid of substance or probative value as to warrant its

exclusion altogether.

Some foreign countries are hostile to allowing a deposition to be

taken in their country, especially by notice or commission, or to

lending assistance in the taking of a deposition. Thus compliance

with the terms of amended subdivision (b) may not in all cases

ensure completion of a deposition abroad. Examination of the law

and policy of the particular foreign country in advance of

attempting a deposition is therefore advisable. See 4 Moore's

Federal Practice ¶¶ 28.05-28.08 (2d ed. 1950).

NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT

The amendments are clarifying.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

This revision is intended to make effective use of the Hague

Convention on the Taking of Evidence Abroad in Civil or Commercial

Matters, and of any similar treaties that the United States may

enter into in the future which provide procedures for taking

depositions abroad. The party taking the deposition is ordinarily

obliged to conform to an applicable treaty or convention if an

effective deposition can be taken by such internationally approved

means, even though a verbatim transcript is not available or

testimony cannot be taken under oath. For a discussion of the

impact of such treaties upon the discovery process, and of the

application of principles of comity upon discovery in countries not

signatories to a convention, see Socie&233;te&233; Nationale

Industrielle Ae&233;rospatiale v. United States District Court, 482

U.S. 522 (1987).

The term "letter of request" has been substituted in the rule for

the term "letter rogatory" because it is the primary method

provided by the Hague Convention. A letter rogatory is essentially

a form of letter of request. There are several other minor changes

that are designed merely to carry out the intent of the other

alterations.

-End-

-CITE-

28 USC APPENDIX Rule 29 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 29. Stipulations Regarding Discovery Procedure

-STATUTE-

Unless otherwise directed by the court, the parties may by

written stipulation (1) provide that depositions may be taken

before any person, at any time or place, upon any notice, and in

any manner and when so taken may be used like other depositions,

and (2) modify other procedures governing or limitations placed

upon discovery, except that stipulations extending the time

provided in Rules 33, 34, and 36 for responses to discovery may, if

they would interfere with any time set for completion of discovery,

for hearing of a motion, or for trial, be made only with the

approval of the court.

-SOURCE-

(As amended Mar. 30, 1970, eff. July 1, 1970; Apr. 22, 1993, eff.

Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT

There is no provision for stipulations varying the procedures by

which methods of discovery other than depositions are governed. It

is common practice for parties to agree on such variations, and the

amendment recognizes such agreements and provides a formal

mechanism in the rules for giving them effect. Any stipulation

varying the procedures may be superseded by court order, and

stipulations extending the time for response to discovery under

Rules 33, 34, and 36 require court approval.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

This rule is revised to give greater opportunity for litigants to

agree upon modifications to the procedures governing discovery or

to limitations upon discovery. Counsel are encouraged to agree on

less expensive and time-consuming methods to obtain information, as

through voluntary exchange of documents, use of interviews in lieu

of depositions, etc. Likewise, when more depositions or

interrogatories are needed than allowed under these rules or when

more time is needed to complete a deposition than allowed under a

local rule, they can, by agreeing to the additional discovery,

eliminate the need for a special motion addressed to the court.

Under the revised rule, the litigants ordinarily are not required

to obtain the court's approval of these stipulations. By order or

local rule, the court can, however, direct that its approval be

obtained for particular types of stipulations; and, in any event,

approval must be obtained if a stipulation to extend the 30-day

period for responding to interrogatories, requests for production,

or requests for admissions would interfere with dates set by the

court for completing discovery, for hearing of a motion, or for

trial.

-End-

-CITE-

28 USC APPENDIX Rule 30 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 30. Depositions Upon Oral Examination

-STATUTE-

(a) When Depositions May Be Taken; When Leave Required.

(1) A party may take the testimony of any person, including a

party, by deposition upon oral examination without leave of court

except as provided in paragraph (2). The attendance of witnesses

may be compelled by subpoena as provided in Rule 45.

(2) A party must obtain leave of court, which shall be granted

to the extent consistent with the principles stated in Rule

26(b)(2), if the person to be examined is confined in prison or

if, without the written stipulation of the parties,

(A) a proposed deposition would result in more than ten

depositions being taken under this rule or Rule 31 by the

plaintiffs, or by the defendants, or by third-party defendants;

(B) the person to be examined already has been deposed in the

case; or

(C) a party seeks to take a deposition before the time

specified in Rule 26(d) unless the notice contains a

certification, with supporting facts, that the person to be

examined is expected to leave the United States and be

unavailable for examination in this country unless deposed

before that time.

(b) Notice of Examination: General Requirements; Method of

Recording; Production of Documents and Things; Deposition of

Organization; Deposition by Telephone.

(1) A party desiring to take the deposition of any person upon

oral examination shall give reasonable notice in writing to every

other party to the action. The notice shall state the time and

place for taking the deposition and the name and address of each

person to be examined, if known, and, if the name is not known, a

general description sufficient to identify the person or the

particular class or group to which the person belongs. If a

subpoena duces tecum is to be served on the person to be

examined, the designation of the materials to be produced as set

forth in the subpoena shall be attached to, or included in, the

notice.

(2) The party taking the deposition shall state in the notice

the method by which the testimony shall be recorded. Unless the

court orders otherwise, it may be recorded by sound,

sound-and-visual, or stenographic means, and the party taking the

deposition shall bear the cost of the recording. Any party may

arrange for a transcription to be made from the recording of a

deposition taken by nonstenographic means.

(3) With prior notice to the deponent and other parties, any

party may designate another method to record the deponent's

testimony in addition to the method specified by the person

taking the deposition. The additional record or transcript shall

be made at that party's expense unless the court otherwise

orders.

(4) Unless otherwise agreed by the parties, a deposition shall

be conducted before an officer appointed or designated under Rule

28 and shall begin with a statement on the record by the officer

that includes (A) the officer's name and business address; (B)

the date, time, and place of the deposition; (C) the name of the

deponent; (D) the administration of the oath or affirmation to

the deponent; and (E) an identification of all persons present.

If the deposition is recorded other than stenographically, the

officer shall repeat items (A) through (C) at the beginning of

each unit of recorded tape or other recording medium. The

appearance or demeanor of deponents or attorneys shall not be

distorted through camera or sound-recording techniques. At the

end of the deposition, the officer shall state on the record that

the deposition is complete and shall set forth any stipulations

made by counsel concerning the custody of the transcript or

recording and the exhibits, or concerning other pertinent

matters.

(5) The notice to a party deponent may be accompanied by a

request made in compliance with Rule 34 for the production of

documents and tangible things at the taking of the deposition.

The procedure of Rule 34 shall apply to the request.

(6) A party may in the party's notice and in a subpoena name as

the deponent a public or private corporation or a partnership or

association or governmental agency and describe with reasonable

particularity the matters on which examination is requested. In

that event, the organization so named shall designate one or more

officers, directors, or managing agents, or other persons who

consent to testify on its behalf, and may set forth, for each

person designated, the matters on which the person will testify.

A subpoena shall advise a non-party organization of its duty to

make such a designation. The persons so designated shall testify

as to matters known or reasonably available to the organization.

This subdivision (b)(6) does not preclude taking a deposition by

any other procedure authorized in these rules.

(7) The parties may stipulate in writing or the court may upon

motion order that a deposition be taken by telephone or other

remote electronic means. For the purposes of this rule and Rules

28(a), 37(a)(1), and 37(b)(1), a deposition taken by such means

is taken in the district and at the place where the deponent is

to answer questions.

(c) Examination and Cross-Examination; Record of Examination;

Oath; Objections. Examination and cross-examination of witnesses

may proceed as permitted at the trial under the provisions of the

Federal Rules of Evidence except Rules 103 and 615. The officer

before whom the deposition is to be taken shall put the witness on

oath or affirmation and shall personally, or by someone acting

under the officer's direction and in the officer's presence, record

the testimony of the witness. The testimony shall be taken

stenographically or recorded by any other method authorized by

subdivision (b)(2) of this rule. All objections made at the time of

the examination to the qualifications of the officer taking the

deposition, to the manner of taking it, to the evidence presented,

to the conduct of any party, or to any other aspect of the

proceedings shall be noted by the officer upon the record of the

deposition; but the examination shall proceed, with the testimony

being taken subject to the objections. In lieu of participating in

the oral examination, parties may serve written questions in a

sealed envelope on the party taking the deposition and the party

taking the deposition shall transmit them to the officer, who shall

propound them to the witness and record the answers verbatim.

(d) Schedule and Duration; Motion to Terminate or Limit

Examination.

(1) Any objection during a deposition must be stated concisely

and in a non-argumentative and non-suggestive manner. A person

may instruct a deponent not to answer only when necessary to

preserve a privilege, to enforce a limitation directed by the

court, or to present a motion under Rule 30(d)(4).

(2) Unless otherwise authorized by the court or stipulated by

the parties, a deposition is limited to one day of seven hours.

The court must allow additional time consistent with Rule

26(b)(2) if needed for a fair examination of the deponent or if

the deponent or another person, or other circumstance, impedes or

delays the examination.

(3) If the court finds that any impediment, delay, or other

conduct has frustrated the fair examination of the deponent, it

may impose upon the persons responsible an appropriate sanction,

including the reasonable costs and attorney's fees incurred by

any parties as a result thereof.

(4) At any time during a deposition, on motion of a party or of

the deponent and upon a showing that the examination is being

conducted in bad faith or in such manner as unreasonably to

annoy, embarrass, or oppress the deponent or party, the court in

which the action is pending or the court in the district where

the deposition is being taken may order the officer conducting

the examination to cease forthwith from taking the deposition, or

may limit the scope and manner of the taking of the deposition as

provided in Rule 26(c). If the order made terminates the

examination, it may be resumed thereafter only upon the order of

the court in which the action is pending. Upon demand of the

objecting party or deponent, the taking of the deposition must be

suspended for the time necessary to make a motion for an order.

The provisions of Rule 37(a)(4) apply to the award of expenses

incurred in relation to the motion.

(e) Review by Witness; Changes; Signing. If requested by the

deponent or a party before completion of the deposition, the

deponent shall have 30 days after being notified by the officer

that the transcript or recording is available in which to review

the transcript or recording and, if there are changes in form or

substance, to sign a statement reciting such changes and the

reasons given by the deponent for making them. The officer shall

indicate in the certificate prescribed by subdivision (f)(1)

whether any review was requested and, if so, shall append any

changes made by the deponent during the period allowed.

(f) Certification and Delivery by Officer; Exhibits; Copies.

(1) The officer must certify that the witness was duly sworn by

the officer and that the deposition is a true record of the

testimony given by the witness. This certificate must be in

writing and accompany the record of the deposition. Unless

otherwise ordered by the court, the officer must securely seal

the deposition in an envelope or package indorsed with the title

of the action and marked "Deposition of [here insert name of

witness]" and must promptly send it to the attorney who arranged

for the transcript or recording, who must store it under

conditions that will protect it against loss, destruction,

tampering, or deterioration. Documents and things produced for

inspection during the examination of the witness must, upon the

request of a party, be marked for identification and annexed to

the deposition and may be inspected and copied by any party,

except that if the person producing the materials desires to

retain them the person may (A) offer copies to be marked for

identification and annexed to the deposition and to serve

thereafter as originals if the person affords to all parties fair

opportunity to verify the copies by comparison with the

originals, or (B) offer the originals to be marked for

identification, after giving to each party an opportunity to

inspect and copy them, in which event the materials may then be

used in the same manner as if annexed to the deposition. Any

party may move for an order that the original be annexed to and

returned with the deposition to the court, pending final

disposition of the case.

(2) Unless otherwise ordered by the court or agreed by the

parties, the officer shall retain stenographic notes of any

deposition taken stenographically or a copy of the recording of

any deposition taken by another method. Upon payment of

reasonable charges therefor, the officer shall furnish a copy of

the transcript or other recording of the deposition to any party

or to the deponent.

(3) The party taking the deposition shall give prompt notice of

its filing to all other parties.

(g) Failure To Attend or To Serve Subpoena; Expenses.

(1) If the party giving the notice of the taking of a

deposition fails to attend and proceed therewith and another

party attends in person or by attorney pursuant to the notice,

the court may order the party giving the notice to pay to such

other party the reasonable expenses incurred by that party and

that party's attorney in attending, including reasonable

attorney's fees.

(2) If the party giving the notice of the taking of a

deposition of a witness fails to serve a subpoena upon the

witness and the witness because of such failure does not attend,

and if another party attends in person or by attorney because

that party expects the deposition of that witness to be taken,

the court may order the party giving the notice to pay to such

other party the reasonable expenses incurred by that party and

that party's attorney in attending, including reasonable

attorney's fees.

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff.

July 1, 1970; Mar. 1, 1971, eff. July 1, 1971; Nov. 20, 1972, eff.

July 1, 1975; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff.

Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff.

Dec. 1, 2000.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). This is in accordance with common

practice. See U.S.C., Title 28, [former] Sec. 639 (Depositions de

bene esse; when and where taken; notice), the relevant provisions

of which are incorporated in this rule; Calif.Code Civ.Proc.

(Deering, 1937) Sec. 2031; and statutes cited in respect to notice

in the Note to Rule 26(a). The provision for enlarging or

shortening the time of notice has been added to give flexibility to

the rule.

Note to Subdivisions (b) and (d). These are introduced as a

safeguard for the protection of parties and deponents on account of

the unlimited right of discovery given by Rule 26.

Note to Subdivisions (c) and (e). These follow the general plan

of [former] Equity Rule 51 (Evidence Taken Before Examiners, Etc.)

and U. S. C., Title 28, [former] Secs. 640 (Depositions de bene

esse; mode of taking), and [former] 641 (Same; transmission to

court), but are more specific. They also permit the deponent to

require the officer to make changes in the deposition if the

deponent is not satisfied with it. See also [former] Equity Rule 50

(Stenographer-Appointment-Fees).

Note to Subdivision (f). Compare [former] Equity Rule 55

(Depositions Deemed Published When Filed).

Note to Subdivision (g). This is similar to 2 Minn. Stat. (Mason,

1927) Sec. 9833, but is more extensive.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This amendment corresponds to the change in Rule 4(d)(4). See the

Advisory Committee's Note to that amendment.

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT

Subdivision (a). This subdivision contains the provisions of

existing Rule 26(a), transferred here as part of the rearrangement

relating to Rule 26. Existing Rule 30(a) is transferred to 30(b).

Changes in language have been made to conform to the new

arrangement.

This subdivision is further revised in regard to the requirement

of leave of court for taking a deposition. The present procedure,

requiring a plaintiff to obtain leave of court if he serves notice

of taking a deposition within 20 days after commencement of the

action, is changed in several respects. First, leave is required by

reference to the time the deposition is to be taken rather than the

date of serving notice of taking. Second, the 20-day period is

extended to 30 days and runs from the service of summons and

complaint on any defendant, rather than the commencement of the

action. Cf. Ill. S.Ct.R. 19-1, S-H Ill.Ann.Stat. Sec. 101.19-1.

Third, leave is not required beyond the time that defendant

initiates discovery, thus showing that he has retained counsel. As

under the present practice, a party not afforded a reasonable

opportunity to appear at a deposition, because he has not yet been

served with process, is protected against use of the deposition at

trial against him. See Rule 32(a), transferred from 26(d).

Moreover, he can later redepose the witness if he so desires.

The purpose of requiring the plaintiff to obtain leave of court

is, as stated by the Advisory Committee that proposed the present

language of Rule 26(a), to protect "a defendant who has not had an

opportunity to retain counsel and inform himself as to the nature

of the suit." Note to 1948 amendment of Rule 26(a), quoted in 3A

Barron & Holtzoff, Federal Practice and Procedure 455-456 (Wright

ed. 1958). In order to assure defendant of this opportunity, the

period is lengthened to 30 days. This protection, however, is

relevant to the time of taking the deposition, not to the time that

notice is served. Similarly, the protective period should run from

the service of process rather than the filing of the complaint with

the court. As stated in the note to Rule 26(d), the courts have

used the service of notice as a convenient reference point for

assigning priority in taking depositions, but with the elimination

of priority in new Rule 26(d) the reference point is no longer

needed. The new procedure is consistent in principle with the

provisions of Rules 33, 34, and 36 as revised.

Plaintiff is excused from obtaining leave even during the initial

30-day period if he gives the special notice provided in

subdivision (b)(2). The required notice must state that the person

to be examined is about to go out of the district where the action

is pending and more than 100 miles from the place of trial, or out

of the United States, or on a voyage to sea, and will be

unavailable for examination unless deposed within the 30-day

period. These events occur most often in maritime litigation, when

seamen are transferred from one port to another or are about to go

to sea. Yet, there are analogous situations in nonmaritime

litigation, and although the maritime problems are more common, a

rule limited to claims in the admiralty and maritime jurisdiction

is not justified.

In the recent unification of the civil and admiralty rules, this

problem was temporarily met through addition in Rule 26(a) of a

provision that depositions de bene esse may continue to be taken as

to admiralty and maritime claims within the meaning of Rule 9(h).

It was recognized at the time that "a uniform rule applicable alike

to what are now civil actions and suits in admiralty" was clearly

preferable, but the de bene esse procedure was adopted "for the

time being at least." See Advisory Committee's note in Report of

the Judicial Conference: Proposed Amendments to Rules of Civil

Procedure 43-44 (1966).

The changes in Rule 30(a) and the new Rule 30(b)(2) provide a

formula applicable to ordinary civil as well as maritime claims.

They replace the provision for depositions de bene esse. They

authorize an early deposition without leave of court where the

witness is about to depart and, unless his deposition is promptly

taken, (1) it will be impossible or very difficult to depose him

before trial or (2) his deposition can later be taken but only with

substantially increased effort and expense. Cf. S.S. Hai Chang,

1966 A.M.C. 2239 (S.D.N.Y. 1966), in which the deposing party is

required to prepay expenses and counsel fees of the other party's

lawyer when the action is pending in New York and depositions are

to be taken on the West Coast. Defendant is protected by a

provision that the deposition cannot be used against him if he was

unable through exercise of diligence to obtain counsel to represent

him.

The distance of 100 miles from place of trial is derived from the

de bene esse provision and also conforms to the reach of a subpoena

of the trial court, as provided in Rule 45(e). See also S.D.N.Y.

Civ.R. 5(a). Some parts of the de bene esse provision are omitted

from Rule 30(b)(2). Modern deposition practice adequately covers

the witness who lives more than 100 miles away from place of trial.

If a witness is aged or infirm, leave of court can be obtained.

Subdivision (b). Existing Rule 30(b) on protective orders has

been transferred to Rule 26(c), and existing Rule 30(a) relating to

the notice of taking deposition has been transferred to this

subdivision. Because new material has been added, subsection

numbers have been inserted.

Subdivision (b)(1). If a subpoena duces tecum is to be served, a

copy thereof or a designation of the materials to be produced must

accompany the notice. Each party is thereby enabled to prepare for

the deposition more effectively.

Subdivision (b)(2). This subdivision is discussed in the note to

subdivision (a), to which it relates.

Subdivision (b)(3). This provision is derived from existing Rule

30(a), with a minor change of language.

Subdivision (b)(4). In order to facilitate less expensive

procedures, provision is made for the recording of testimony by

other than stenographic means - e.g., by mechanical, electronic, or

photographic means. Because these methods give rise to problems of

accuracy and trustworthiness, the party taking the deposition is

required to apply for a court order. The order is to specify how

the testimony is to be recorded, preserved, and filed, and it may

contain whatever additional safeguards the court deems necessary.

Subdivision (b)(5). A provision is added to enable a party,

through service of notice, to require another party to produce

documents or things at the taking of his deposition. This may now

be done as to a nonparty deponent through use of a subpoena duces

tecum as authorized by Rule 45, but some courts have held that

documents may be secured from a party only under Rule 34. See 2A

Barron & Holtzoff, Federal Practice and Procedure Sec. 644.1 n.

83.2, Sec. 792 n. 16 (Wright ed. 1961). With the elimination of

"good cause" from Rule 34, the reason for this restrictive doctrine

has disappeared. Cf. N.Y.C.P.L.R. Sec. 3111.

Whether production of documents or things should be obtained

directly under Rule 34 or at the deposition under this rule will

depend on the nature and volume of the documents or things. Both

methods are made available. When the documents are few and simple,

and closely related to the oral examination, ability to proceed via

this rule will facilitate discovery. If the discovering party

insists on examining many and complex documents at the taking of

the deposition, thereby causing undue burdens on others, the latter

may, under Rules 26(c) or 30(d), apply for a court order that the

examining party proceed via Rule 34 alone.

Subdivision (b)(6). A new provision is added, whereby a party may

name a corporation, partnership, association, or governmental

agency as the deponent and designate the matters on which he

requests examination, and the organization shall then name one or

more of its officers, directors, or managing agents, or other

persons consenting to appear and testify on its behalf with respect

to matters known or reasonably available to the organization. Cf.

Alberta Sup.Ct.R. 255. The organization may designate persons other

than officers, directors, and managing agents, but only with their

consent. Thus, an employee or agent who has an independent or

conflicting interest in the litigation - for example, in a personal

injury case - can refuse to testify on behalf of the organization.

This procedure supplements the existing practice whereby the

examining party designates the corporate official to be deposed.

Thus, if the examining party believes that certain officials who

have not testified pursuant to this subdivision have added

information, he may depose them. On the other hand, a court's

decision whether to issue a protective order may take account of

the availability and use made of the procedures provided in this

subdivision.

The new procedure should be viewed as an added facility for

discovery, one which may be advantageous to both sides as well as

an improvement in the deposition process. It will reduce the

difficulties now encountered in determining, prior to the taking of

a deposition, whether a particular employee or agent is a "managing

agent." See Note, Discovery Against Corporations Under the Federal

Rules, 47 Iowa L.Rev. 1006-1016 (1962). 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. Cf. Haney

v. Woodward & Lothrop, Inc., 330 F.2d 940, 944 (4th Cir. 1964). The

provisions should also assist organizations which find that an

unnecessarily large number of their officers and agents are being

deposed by a party uncertain of who in the organization has

knowledge. Some courts have held that under the existing rules a

corporation should not be burdened with choosing which person is to

appear for it. E.g., United States v. Gahagan Dredging Corp., 24

F.R.D. 328, 329 (S.D.N.Y. 1958). This burden is not essentially

different from that of answering interrogatories under Rule 33, and

is in any case lighter than that of an examining party ignorant of

who in the corporation has knowledge.

Subdivision (c). A new sentence is inserted at the beginning,

representing the transfer of existing Rule 26(c) to this

subdivision. Another addition conforms to the new provision in

subdivision (b)(4).

The present rule provides that transcription shall be carried out

unless all parties waive it. In view of the many depositions taken

from which nothing useful is discovered, the revised language

provides that transcription is to be performed if any party

requests it. The fact of the request is relevant to the exercise of

the court's discretion in determining who shall pay for

transcription.

Parties choosing to serve written questions rather than

participate personally in an oral deposition are directed to serve

their questions on the party taking the deposition, since the

officer is often not identified in advance. Confidentiality is

preserved, since the questions may be served in a sealed envelope.

Subdivision (d). The assessment of expenses incurred in relation

to motions made under this subdivision (d) is made subject to the

provisions of Rule 37(a). The standards for assessment of expenses

are more fully set out in Rule 37(a), and these standards should

apply to the essentially similar motions of this subdivision.

Subdivision (e). The provision relating to the refusal of a

witness to sign his deposition is tightened through insertion of a

30-day time period.

Subdivision (f)(1). A provision is added which codifies in a

flexible way the procedure for handling exhibits related to the

deposition and at the same time assures each party that he may

inspect and copy documents and things produced by a nonparty

witness in response to subpoena duces tecum. As a general rule and

in the absence of agreement to the contrary or order of the court,

exhibits produced without objection are to be annexed to and

returned with the deposition, but a witness may substitute copies

for purposes of marking and he may obtain return of the exhibits.

The right of the parties to inspect exhibits for identification and

to make copies is assured. Cf. N.Y.C.P.L.R. Sec. 3116(c).

NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT

The subdivision permits a party to name a corporation or other

form of organization as a deponent in the notice of examination and

to describe in the notice the matters about which discovery is

desired. The organization is then obliged to designate natural

persons to testify on its behalf. The amendment clarifies the

procedure to be followed if a party desires to examine a non-party

organization through persons designated by the organization. Under

the rules, a subpoena rather than a notice of examination is served

on a non-party to compel attendance at the taking of a deposition.

The amendment provides that a subpoena may name a non-party

organization as the deponent and may indicate the matters about

which discovery is desired. In that event, the non-party

organization must respond by designating natural persons, who are

then obliged to testify as to matters known or reasonably available

to the organization. To insure that a non-party organization that

is not represented by counsel has knowledge of its duty to

designate, the amendment directs the party seeking discovery to

advise of the duty in the body of the subpoena.

NOTES OF ADVISORY COMMITTEE ON RULES - 1972 AMENDMENT

Subdivision (c). Existing. Rule 43(b), which is to be abrogated,

deals with the use of leading questions, the calling,

interrogation, impeachment, and scope of cross-examination of

adverse parties, officers, etc. These topics are dealt with in many

places in the Rules of Evidence. Moreover, many pertinent topics

included in the Rules of Evidence are not mentioned in Rule 43(b),

e.g. privilege. A reference to the Rules of Evidence generally is

therefore made in subdivision (c) of Rule 30.

NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT

Subdivision (b)(4). It has been proposed that electronic

recording of depositions be authorized as a matter of course,

subject to the right of a party to seek an order that a deposition

be recorded by stenographic means. The Committee is not satisfied

that a case has been made for a reversal of present practice. The

amendment is made to encourage parties to agree to the use of

electronic recording of depositions so that conflicting claims with

respect to the potential of electronic recording for reducing costs

of depositions can be appraised in the light of greater experience.

The provision that the parties may stipulate that depositions may

be recorded by other than stenographic means seems implicit in Rule

29. The amendment makes it explicit. The provision that the

stipulation or order shall designate the person before whom the

deposition is to be taken is added to encourage the naming of the

recording technician as that person, eliminating the necessity of

the presence of one whose only function is to administer the oath.

See Rules 28(a) and 29.

Subdivision (b)(7). Depositions by telephone are now authorized

by Rule 29 upon stipulation of the parties. The amendment

authorizes that method by order of the court. The final sentence is

added to make it clear that when a deposition is taken by telephone

it is taken in the district and at the place where the witness is

to answer the questions rather than that where the questions are

propounded.

Subdivision (f)(1). For the reasons set out in the Note following

the amendment of Rule 5(d), the court may wish to permit the

parties to retain depositions unless they are to be used in the

action. The amendment of the first paragraph permits the court to

so order.

The amendment of the second paragraph is clarifying. The purpose

of the paragraph is to permit a person who produces materials at a

deposition to offer copies for marking and annexation to the

deposition. Such copies are a "substitute" for the originals, which

are not to be marked and which can thereafter be used or even

disposed of by the person who produces them. In the light of that

purpose, the former language of the paragraph had been justly

termed "opaque." Wright & Miller, Federal Practice and Procedure:

Civil Sec. 2114.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

EFFECTIVE DATE OF AMENDMENT PROPOSED NOVEMBER 20, 1972

Amendment of this rule embraced by the order entered by the

Supreme Court of the United States on November 20, 1972, effective

on the 180th day beginning after January 2, 1975, see section 3 of

Pub. L. 93-595, Jan. 2, 1975, 88 Stat. 1959, set out as a note

under section 2074 of this title.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Subdivision (a). Paragraph (1) retains the first and third

sentences from the former subdivision (a) without significant

modification. The second and fourth sentences are relocated.

Paragraph (2) collects all provisions bearing on requirements of

leave of court to take a deposition.

Paragraph (2)(A) is new. It provides a limit on the number of

depositions the parties may take, absent leave of court or

stipulation with the other parties. One aim of this revision is to

assure judicial review under the standards stated in Rule 26(b)(2)

before any side will be allowed to take more than ten depositions

in a case without agreement of the other parties. A second

objective is to emphasize that counsel have a professional

obligation to develop a mutual cost-effective plan for discovery in

the case. Leave to take additional depositions should be granted

when consistent with the principles of Rule 26(b)(2), and in some

cases the ten-per-side limit should be reduced in accordance with

those same principles. Consideration should ordinarily be given at

the planning meeting of the parties under Rule 26(f) and at the

time of a scheduling conference under Rule 16(b) as to enlargements

or reductions in the number of depositions, eliminating the need

for special motions.

A deposition under Rule 30(b)(6) should, for purposes of this

limit, be treated as a single deposition even though more than one

person may be designated to testify.

In multi-party cases, the parties on any side are expected to

confer and agree as to which depositions are most needed, given the

presumptive limit on the number of depositions they can take

without leave of court. If these disputes cannot be amicably

resolved, the court can be requested to resolve the dispute or

permit additional depositions.

Paragraph (2)(B) is new. It requires leave of court if any

witness is to be deposed in the action more than once. This

requirement does not apply when a deposition is temporarily

recessed for convenience of counsel or the deponent or to enable

additional materials to be gathered before resuming the deposition.

If significant travel costs would be incurred to resume the

deposition, the parties should consider the feasibility of

conducting the balance of the examination by telephonic means.

Paragraph (2)(C) revises the second sentence of the former

subdivision (a) as to when depositions may be taken. Consistent

with the changes made in Rule 26(d), providing that formal

discovery ordinarily not commence until after the litigants have

met and conferred as directed in revised Rule 26(f), the rule

requires leave of court or agreement of the parties if a deposition

is to be taken before that time (except when a witness is about to

leave the country).

Subdivision (b). The primary change in subdivision (b) is that

parties will be authorized to record deposition testimony by

nonstenographic means without first having to obtain permission of

the court or agreement from other counsel.

Former subdivision (b)(2) is partly relocated in subdivision

(a)(2)(C) of this rule. The latter two sentences of the first

paragraph are deleted, in part because they are redundant to Rule

26(g) and in part because Rule 11 no longer applies to discovery

requests. The second paragraph of the former subdivision (b)(2),

relating to use of depositions at trial where a party was unable to

obtain counsel in time for an accelerated deposition, is relocated

in Rule 32.

New paragraph (2) confers on the party taking the deposition the

choice of the method of recording, without the need to obtain prior

court approval for one taken other than stenographically. A party

choosing to record a deposition only by videotape or audiotape

should understand that a transcript will be required by Rule

26(a)(3)(B) and Rule 32(c) if the deposition is later to be offered

as evidence at trial or on a dispositive motion under Rule 56.

Objections to the nonstenographic recording of a deposition, when

warranted by the circumstances, can be presented to the court under

Rule 26(c).

Paragraph (3) provides that other parties may arrange, at their

own expense, for the recording of a deposition by a means

(stenographic, visual, or sound) in addition to the method

designated by the person noticing the deposition. The former

provisions of this paragraph, relating to the court's power to

change the date of a deposition, have been eliminated as redundant

in view of Rule 26(c)(2).

Revised paragraph (4) requires that all depositions be recorded

by an officer designated or appointed under Rule 28 and contains

special provisions designed to provide basic safeguards to assure

the utility and integrity of recordings taken other than

stenographically.

Paragraph (7) is revised to authorize the taking of a deposition

not only by telephone but also by other remote electronic means,

such as satellite television, when agreed to by the parties or

authorized by the court.

Subdivision (c). Minor changes are made in this subdivision to

reflect those made in subdivision (b) and to complement the new

provisions of subdivision (d)(1), aimed at reducing the number of

interruptions during depositions.

In addition, the revision addresses a recurring problem as to

whether other potential deponents can attend a deposition. Courts

have disagreed, some holding that witnesses should be excluded

through invocation of Rule 615 of the evidence rules, and others

holding that witnesses may attend unless excluded by an order under

Rule 26(c)(5). The revision provides that other witnesses are not

automatically excluded from a deposition simply by the request of a

party. Exclusion, however, can be ordered under Rule 26(c)(5) when

appropriate; and, if exclusion is ordered, consideration should be

given as to whether the excluded witnesses likewise should be

precluded from reading, or being otherwise informed about, the

testimony given in the earlier depositions. The revision addresses

only the matter of attendance by potential deponents, and does not

attempt to resolve issues concerning attendance by others, such as

members of the public or press.

Subdivision (d). The first sentence of new paragraph (1) provides

that any objections during a deposition must be made concisely and

in a non-argumentative and non-suggestive manner. Depositions

frequently have been unduly prolonged, if not unfairly frustrated,

by lengthy objections and colloquy, often suggesting how the

deponent should respond. While objections may, under the revised

rule, be made during a deposition, they ordinarily should be

limited to those that under Rule 32(d)(3) might be waived if not

made at that time, i.e., objections on grounds that might be

immediately obviated, removed, or cured, such as to the form of a

question or the responsiveness of an answer. Under Rule 32(b),

other objections can, even without the so-called "usual

stipulation" preserving objections, be raised for the first time at

trial and therefore should be kept to a minimum during a

deposition.

Directions to a deponent not to answer a question can be even

more disruptive than objections. The second sentence of new

paragraph (1) prohibits such directions except in the three

circumstances indicated: to claim a privilege or protection against

disclosure (e.g., as work product), to enforce a court directive

limiting the scope or length of permissible discovery, or to

suspend a deposition to enable presentation of a motion under

paragraph (3).

Paragraph (2) is added to this subdivision to dispel any doubts

regarding the power of the court by order or local rule to

establish limits on the length of depositions. The rule also

explicitly authorizes the court to impose the cost resulting from

obstructive tactics that unreasonably prolong a deposition on the

person engaged in such obstruction. This sanction may be imposed on

a non-party witness as well as a party or attorney, but is

otherwise congruent with Rule 26(g).

It is anticipated that limits on the length of depositions

prescribed by local rules would be presumptive only, subject to

modification by the court or by agreement of the parties. Such

modifications typically should be discussed by the parties in their

meeting under Rule 26(f) and included in the scheduling order

required by Rule 16(b). Additional time, moreover, should be

allowed under the revised rule when justified under the principles

stated in Rule 26(b)(2). To reduce the number of special motions,

local rules should ordinarily permit - and indeed encourage - the

parties to agree to additional time, as when, during the taking of

a deposition, it becomes clear that some additional examination is

needed.

Paragraph (3) authorizes appropriate sanctions not only when a

deposition is unreasonably prolonged, but also when an attorney

engages in other practices that improperly frustrate the fair

examination of the deponent, such as making improper objections or

giving directions not to answer prohibited by paragraph (1). In

general, counsel should not engage in any conduct during a

deposition that would not be allowed in the presence of a judicial

officer. The making of an excessive number of unnecessary

objections may itself constitute sanctionable conduct, as may the

refusal of an attorney to agree with other counsel on a fair

apportionment of the time allowed for examination of a deponent or

a refusal to agree to a reasonable request for some additional time

to complete a deposition, when that is permitted by the local rule

or order.

Subdivision (e). Various changes are made in this subdivision to

reduce problems sometimes encountered when depositions are taken

stenographically. Reporters frequently have difficulties obtaining

signatures - and the return of depositions - from deponents. Under

the revision pre-filing review by the deponent is required only if

requested before the deposition is completed. If review is

requested, the deponent will be allowed 30 days to review the

transcript or recording and to indicate any changes in form or

substance. Signature of the deponent will be required only if

review is requested and changes are made.

Subdivision (f). Minor changes are made in this subdivision to

reflect those made in subdivision (b). In courts which direct that

depositions not be automatically filed, the reporter can transmit

the transcript or recording to the attorney taking the deposition

(or ordering the transcript or record), who then becomes custodian

for the court of the original record of the deposition. Pursuant to

subdivision (f)(2), as under the prior rule, any other party is

entitled to secure a copy of the deposition from the officer

designated to take the deposition; accordingly, unless ordered or

agreed, the officer must retain a copy of the recording or the

stenographic notes.

COMMITTEE NOTES ON RULES - 2000 AMENDMENT

Subdivision (d). Paragraph (1) has been amended to clarify the

terms regarding behavior during depositions. The references to

objections "to evidence" and limitations "on evidence" have been

removed to avoid disputes about what is "evidence" and whether an

objection is to, or a limitation is on, discovery instead. It is

intended that the rule apply to any objection to a question or

other issue arising during a deposition, and to any limitation

imposed by the court in connection with a deposition, which might

relate to duration or other matters.

The current rule places limitations on instructions that a

witness not answer only when the instruction is made by a "party."

Similar limitations should apply with regard to anyone who might

purport to instruct a witness not to answer a question.

Accordingly, the rule is amended to apply the limitation to

instructions by any person. The amendment is not intended to confer

new authority on nonparties to instruct witnesses to refuse to

answer deposition questions. The amendment makes it clear that,

whatever the legitimacy of giving such instructions, the nonparty

is subject to the same limitations as parties.

Paragraph (2) imposes a presumptive durational limitation of one

day of seven hours for any deposition. The Committee has been

informed that overlong depositions can result in undue costs and

delays in some circumstances. 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. For purposes of this durational limit,

the deposition of each person designated under Rule 30(b)(6) should

be considered a separate deposition. The presumptive duration may

be extended, or otherwise altered, by agreement. Absent agreement,

a court order is needed. The party seeking a court order to extend

the examination, or otherwise alter the limitations, is expected to

show good cause to justify such an order.

Parties considering extending the time for a deposition - and

courts asked to order an extension - might consider a variety of

factors. For example, if the witness needs an interpreter, that may

prolong the examination. If the examination will cover events

occurring over a long period of time, that may justify allowing

additional time. In cases in which the witness will be questioned

about numerous or lengthy documents, it is often desirable for the

interrogating party to send copies of the documents to the witness

sufficiently in advance of the deposition so that the witness can

become familiar with them. Should the witness nevertheless not read

the documents in advance, thereby prolonging the deposition, a

court could consider that a reason for extending the time limit. If

the examination reveals that documents have been requested but not

produced, that may justify further examination once production has

occurred. In multi-party cases, the need for each party to examine

the witness may warrant additional time, although duplicative

questioning should be avoided and parties with similar interests

should strive to designate one lawyer to question about areas of

common interest. Similarly, should the lawyer for the witness want

to examine the witness, that may require additional time. Finally,

with regard to expert witnesses, there may more often be a need for

additional time - even after the submission of the report required

by Rule 26(a)(2) - for full exploration of the theories upon which

the witness relies.

It is expected that in most instances the parties and the witness

will make reasonable accommodations to avoid the need for resort to

the court. The limitation is phrased in terms of a single day on

the assumption that ordinarily a single day would be preferable to

a deposition extending over multiple days; if alternative

arrangements would better suit the parties, they may agree to them.

It is also assumed that there will be reasonable breaks during the

day. Preoccupation with timing is to be avoided.

The rule directs the court to allow additional time where

consistent with Rule 26(b)(2) if needed for a fair examination of

the deponent. In addition, if the deponent or another person

impedes or delays the examination, the court must authorize extra

time. The amendment makes clear that additional time should also be

allowed where the examination is impeded by an "other

circumstance," which might include a power outage, a health

emergency, or other event.

In keeping with the amendment to Rule 26(b)(2), the provision

added in 1993 granting authority to adopt a local rule limiting the

time permitted for depositions has been removed. The court may

enter a case-specific order directing shorter depositions for all

depositions in a case or with regard to a specific witness. The

court may also order that a deposition be taken for limited periods

on several days.

Paragraph (3) includes sanctions provisions formerly included in

paragraph (2). It authorizes the court to impose an appropriate

sanction on any person responsible for an impediment that

frustrated the fair examination of the deponent. This could include

the deponent, any party, or any other person involved in the

deposition. If the impediment or delay results from an "other

circumstance" under paragraph (2), ordinarily no sanction would be

appropriate.

Former paragraph (3) has been renumbered (4) but is otherwise

unchanged.

Subdivision (f)(1). This subdivision is amended because Rule 5(d)

has been amended to direct that discovery materials, including

depositions, ordinarily should not be filed. The rule already has

provisions directing that the lawyer who arranged for the

transcript or recording preserve the deposition. Rule 5(d) provides

that, once the deposition is used in the proceeding, the attorney

must file it with the court.

"Shall" is replaced by "must" or "may" under the program to

conform amended rules to current style conventions when there is no

ambiguity.

GAP Report. The Advisory Committee recommends deleting the

requirement in the published proposed amendments that the deponent

consent to extending a deposition beyond one day, and adding an

amendment to Rule 30(f)(1) to conform to the published amendment to

Rule 5(d) regarding filing of depositions. It also recommends

conforming the Committee Note with regard to the deponent veto, and

adding material to the Note to provide direction on computation of

the durational limitation on depositions, to provide examples of

situations in which the parties might agree - or the court order -

that a deposition be extended, and to make clear that no new

authority to instruct a witness is conferred by the amendment. One

minor wording improvement in the Note is also suggested.

-End-

-CITE-

28 USC APPENDIX Rule 31 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 31. Depositions Upon Written Questions

-STATUTE-

(a) Serving Questions; Notice.

(1) A party may take the testimony of any person, including a

party, by deposition upon written questions without leave of

court except as provided in paragraph (2). The attendance of

witnesses may be compelled by the use of subpoena as provided in

Rule 45.

(2) A party must obtain leave of court, which shall be granted

to the extent consistent with the principles stated in Rule

26(b)(2), if the person to be examined is confined in prison or

if, without the written stipulation of the parties,

(A) a proposed deposition would result in more than ten

depositions being taken under this rule or Rule 30 by the

plaintiffs, or by the defendants, or by third-party defendants;

(B) the person to be examined has already been deposed in the

case; or

(C) a party seeks to take a deposition before the time

specified in Rule 26(d).

(3) A party desiring to take a deposition upon written

questions shall serve them upon every other party with a notice

stating (1) the name and address of the person who is to answer

them, if known, and if the name is not known, a general

description sufficient to identify the person or the particular

class or group to which the person belongs, and (2) the name or

descriptive title and address of the officer before whom the

deposition is to be taken. A deposition upon written questions

may be taken of a public or private corporation or a partnership

or association or governmental agency in accordance with the

provisions of Rule 30(b)(6).

(4) Within 14 days after the notice and written questions are

served, a party may serve cross questions upon all other parties.

Within 7 days after being served with cross questions, a party

may serve redirect questions upon all other parties. Within 7

days after being served with redirect questions, a party may

serve recross questions upon all other parties. The court may for

cause shown enlarge or shorten the time.

(b) Officer To Take Responses and Prepare Record. A copy of the

notice and copies of all questions served shall be delivered by the

party taking the deposition to the officer designated in the

notice, who shall proceed promptly, in the manner provided by Rule

30(c), (e), and (f), to take the testimony of the witness in

response to the questions and to prepare, certify, and file or mail

the deposition, attaching thereto the copy of the notice and the

questions received by the officer.

(c) Notice of Filing. When the deposition is filed the party

taking it shall promptly give notice thereof to all other parties.

-SOURCE-

(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff.

Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

This rule is in accordance with common practice. In most of the

states listed in the Note to Rule 26(a), provisions similar to this

rule will be found in the statutes which in their respective

statutory compilations follow those cited in the Note to Rule

26(a).

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT

Confusion is created by the use of the same terminology to

describe both the taking of a deposition upon "written

interrogatories" pursuant to this rule and the serving of "written

interrogatories" upon parties pursuant to Rule 33. The distinction

between these two modes of discovery will be more readily and

clearly grasped through substitution of the word "questions" for

"interrogatories" throughout this rule.

Subdivision (a). A new paragraph is inserted at the beginning of

this subdivision to conform to the rearrangement of provisions in

Rules 26(a), 30(a), and 30(b).

The revised subdivision permits designation of the deponent by

general description or by class or group. This conforms to the

practice for depositions on oral examination.

The new procedure provided in Rule 30(b)(6) for taking the

deposition of a corporation or other organization through persons

designated by the organization is incorporated by reference.

The service of all questions, including cross, redirect, and

recross, is to be made on all parties. This will inform the parties

and enable them to participate fully in the procedure.

The time allowed for service of cross, redirect, and recross

questions has been extended. Experience with the existing time

limits shows them to be unrealistically short. No special

restriction is placed on the time for serving the notice of taking

the deposition and the first set of questions. Since no party is

required to serve cross questions less than 30 days after the

notice and questions are served, the defendant has sufficient time

to obtain counsel. The court may for cause shown enlarge or shorten

the time.

Subdivision (d). Since new Rule 26(c) provides for protective

orders with respect to all discovery, and expressly provides that

the court may order that one discovery device be used in place of

another, subdivision (d) is eliminated as unnecessary.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Subdivision (a). The first paragraph of subdivision (a) is

divided into two subparagraphs, with provisions comparable to those

made in the revision of Rule 30. Changes are made in the former

third paragraph, numbered in the revision as paragraph (4), to

reduce the total time for developing cross-examination, redirect,

and recross questions from 50 days to 28 days.

-End-

-CITE-

28 USC APPENDIX Rule 32 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 32. Use of Depositions in Court Proceedings

-STATUTE-

(a) Use of Depositions. At the trial or upon the hearing of a

motion or an interlocutory proceeding, any part or all of a

deposition, so far as admissible under the rules of evidence

applied as though the witness were then present and testifying, may

be used against any party who was present or represented at the

taking of the deposition or who had reasonable notice thereof, in

accordance with any of the following provisions:

(1) Any deposition may be used by any party for the purpose of

contradicting or impeaching the testimony of deponent as a

witness, or for any other purpose permitted by the Federal Rules

of Evidence.

(2) The deposition of a party or of anyone who at the time of

taking the deposition was an officer, director, or managing

agent, or a person designated under Rule 30(b)(6) or 31(a) to

testify on behalf of a public or private corporation, partnership

or association or governmental agency which is a party may be

used by an adverse party for any purpose.

(3) The deposition of a witness, whether or not a party, may be

used by any party for any purpose if the court finds:

(A) that the witness is dead; or

(B) that the witness is at a greater distance than 100 miles

from the place of trial or hearing, or is out of the United

States, unless it appears that the absence of the witness was

procured by the party offering the deposition; or

(C) that the witness is unable to attend or testify because

of age, illness, infirmity, or imprisonment; or

(D) that the party offering the deposition has been unable to

procure the attendance of the witness by subpoena; or

(E) upon application and notice, that such exceptional

circumstances exist as to make it desirable, in the interest of

justice and with due regard to the importance of presenting the

testimony of witnesses orally in open court, to allow the

deposition to be used.

A deposition taken without leave of court pursuant to a notice

under Rule 30(a)(2)(C) shall not be used against a party who

demonstrates that, when served with the notice, it was unable

through the exercise of diligence to obtain counsel to represent

it at the taking of the deposition; nor shall a deposition be

used against a party who, having received less than 11 days

notice of a deposition, has promptly upon receiving such notice

filed a motion for a protective order under Rule 26(c)(2)

requesting that the deposition not be held or be held at a

different time or place and such motion is pending at the time

the deposition is held.

(4) If only part of a deposition is offered in evidence by a

party, an adverse party may require the offeror to introduce any

other part which ought in fairness to be considered with the part

introduced, and any party may introduce any other parts.

Substitution of parties pursuant to Rule 25 does not affect the

right to use depositions previously taken; and, when an action

has been brought in any court of the United States or of any

State and another action involving the same subject matter is

afterward brought between the same parties or their

representatives or successors in interest, all depositions

lawfully taken and duly filed in the former action may be used in

the latter as if originally taken therefor. A deposition

previously taken may also be used as permitted by the Federal

Rules of Evidence.

(b) Objections to Admissibility. Subject to the provisions of

Rule 28(b) and subdivision (d)(3) of this rule, objection may be

made at the trial or hearing to receiving in evidence any

deposition or part thereof for any reason which would require the

exclusion of the evidence if the witness were then present and

testifying.

(c) Form of Presentation. Except as otherwise directed by the

court, a party offering deposition testimony pursuant to this rule

may offer it in stenographic or nonstenographic form, but, if in

nonstenographic form, the party shall also provide the court with a

transcript of the portions so offered. On request of any party in a

case tried before a jury, deposition testimony offered other than

for impeachment purposes shall be presented in nonstenographic

form, if available, unless the court for good cause orders

otherwise.

(d) Effect of Errors and Irregularities in Depositions.

(1) As to Notice. All errors and irregularities in the notice

for taking a deposition are waived unless written objection is

promptly served upon the party giving the notice.

(2) As to Disqualification of Officer. Objection to taking a

deposition because of disqualification of the officer before whom

it is to be taken is waived unless made before the taking of the

deposition begins or as soon thereafter as the disqualification

becomes known or could be discovered with reasonable diligence.

(3) As to Taking of Deposition.

(A) Objections to the competency of a witness or to the

competency, relevancy, or materiality of testimony are not

waived by failure to make them before or during the taking of

the deposition, unless the ground of the objection is one which

might have been obviated or removed if presented at that time.

(B) Errors and irregularities occurring at the oral

examination in the manner of taking the deposition, in the form

of the questions or answers, in the oath or affirmation, or in

the conduct of parties, and errors of any kind which might be

obviated, removed, or cured if promptly presented, are waived

unless seasonable objection thereto is made at the taking of

the deposition.

(C) Objections to the form of written questions submitted

under Rule 31 are waived unless served in writing upon the

party propounding them within the time allowed for serving the

succeeding cross or other questions and within 5 days after

service of the last questions authorized.

(4) As to Completion and Return of Deposition. Errors and

irregularities in the manner in which the testimony is

transcribed or the deposition is prepared, signed, certified,

sealed, indorsed, transmitted, filed, or otherwise dealt with by

the officer under Rules 30 and 31 are waived unless a motion to

suppress the deposition or some part thereof is made with

reasonable promptness after such defect is, or with due diligence

might have been, ascertained.

-SOURCE-

(As amended Mar. 30, 1970, eff. July 1, 1970; Nov. 20, 1972, eff.

July 1, 1975; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff.

Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

This rule is in accordance with common practice. In most of the

states listed in the Note to Rule 26, provisions similar to this

rule will be found in the statutes which in their respective

statutory compilations follow those cited in the Note to Rule 26.

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT

As part of the rearrangement of the discovery rules, existing

subdivisions (d), (e), and (f) of Rule 26 are transferred to Rule

32 as new subdivisions (a), (b), and (c). The provisions of Rule 32

are retained as subdivision (d) of Rule 32 with appropriate changes

in the lettering and numbering of subheadings. The new rule is

given a suitable new title. A beneficial byproduct of the

rearrangement is that provisions which are naturally related to one

another are placed in one rule.

A change is made in new Rule 32(a), whereby it is made clear that

the rules of evidence are to be applied to depositions offered at

trial as though the deponent were then present and testifying at

trial. This eliminates the possibility of certain technical hearsay

objections which are based, not on the contents of deponent's

testimony, but on his absence from court. The language of present

Rule 26(d) does not appear to authorize these technical objections,

but it is not entirely clear. Note present Rule 26(e), transferred

to Rule 32(b); see 2A Barron & Holtzoff, Federal Practice and

Procedure 164-166 (Wright ed. 1961).

An addition in Rule 32(a)(2) provides for use of a deposition of

a person designated by a corporation or other organization, which

is a party, to testify on its behalf. This complements the new

procedure for taking the deposition of a corporation or other

organization provided in Rules 30(b)(6) and 31(a). The addition is

appropriate, since the deposition is in substance and effect that

of the corporation or other organization which is a party.

A change is made in the standard under which a party offering

part of a deposition in evidence may be required to introduce

additional parts of the deposition. The new standard is contained

in a proposal made by the Advisory Committee on Rules of Evidence.

See Rule 1-07 and accompanying Note, Preliminary Draft of Proposed

Rules of Evidence for the United States District Courts and

Magistrates 21-22 (March, 1969).

References to other rules are changed to conform to the

rearrangement, and minor verbal changes have been made for

clarification. The time for objecting to written questions served

under Rule 31 is slightly extended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1972 AMENDMENT

Subdivision (e). The concept of "making a person one's own

witness" appears to have had significance principally in two

respects: impeachment and waiver of incompetency. Neither retains

any vitality under the Rules of Evidence. The old prohibition

against impeaching one's own witness is eliminated by Evidence Rule

607. The lack of recognition in the Rules of Evidence of state

rules of incompetency in the Dead Man's area renders it unnecessary

to consider aspects of waiver arising from calling the incompetent

party witness. Subdivision (c) is deleted because it appears to be

no longer necessary in the light of the Rules of Evidence.

NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT

Subdivision (a)(1). Rule 801(d) of the Federal Rules of Evidence

permits a prior inconsistent statement of a witness in a deposition

to be used as substantive evidence. And Rule 801(d)(2) makes the

statement of an agent or servant admissible against the principal

under the circumstances described in the Rule. The language of the

present subdivision is, therefore, too narrow.

Subdivision (a)(4). The requirement that a prior action must have

been dismissed before depositions taken for use in it can be used

in a subsequent action was doubtless an oversight, and the courts

have ignored it. See Wright & Miller, Federal Practice and

Procedure: Civil Sec. 2150. The final sentence is added to reflect

the fact that the Federal Rules of Evidence permit a broader use of

depositions previously taken under certain circumstances. For

example, Rule 804(b)(1) of the Federal Rules of Evidence provides

that if a witness is unavailable, as that term is defined by the

rule, his deposition in any earlier proceeding can be used against

a party to the prior proceeding who had an opportunity and similar

motive to develop the testimony of the witness.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Subdivision (a). The last sentence of revised subdivision (a) not

only includes the substance of the provisions formerly contained in

the second paragraph of Rule 30(b)(2), but adds a provision to deal

with the situation when a party, receiving minimal notice of a

proposed deposition, is unable to obtain a court ruling on its

motion for a protective order seeking to delay or change the place

of the deposition. Ordinarily a party does not obtain protection

merely by the filing of a motion for a protective order under Rule

26(c); any protection is dependent upon the court's ruling. Under

the revision, a party receiving less than 11 days notice of a

deposition can, provided its motion for a protective order is filed

promptly, be spared the risks resulting from nonattendance at the

deposition held before its motion is ruled upon. Although the

revision of Rule 32(a) covers only the risk that the deposition

could be used against the non-appearing movant, it should also

follow that, when the proposed deponent is the movant, the deponent

would have "just cause" for failing to appear for purposes of Rule

37(d)(1). Inclusion of this provision is not intended to signify

that 11 days' notice is the minimum advance notice for all

depositions or that greater than 10 days should necessarily be

deemed sufficient in all situations.

Subdivision (c). This new subdivision, inserted at the location

of a subdivision previously abrogated, is included in view of the

increased opportunities for video-recording and audio-recording of

depositions under revised Rule 30(b). Under this rule a party may

offer deposition testimony in any of the forms authorized under

Rule 30(b) but, if offering it in a nonstenographic form, must

provide the court with a transcript of the portions so offered. On

request of any party in a jury trial, deposition testimony offered

other than for impeachment purposes is to be presented in a

nonstenographic form if available, unless the court directs

otherwise. Note that under Rule 26(a)(3)(B) a party expecting to

use nonstenographic deposition testimony as substantive evidence is

required to provide other parties with a transcript in advance of

trial.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Evidence, referred to in subd. (a)(1), (4),

are set out in this Appendix.

-MISC2-

EFFECTIVE DATE OF AMENDMENT PROPOSED NOVEMBER 20, 1972

Amendment of this rule embraced by the order entered by the

Supreme Court of the United States on November 20, 1972, effective

on the 180th day beginning after January 2, 1975, see section 3 of

Pub. L. 93-595, Jan. 2, 1975, 88 Stat. 1959, set out as a note

under section 2074 of this title.

-End-

-CITE-

28 USC APPENDIX Rule 33 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 33. Interrogatories to Parties

-STATUTE-

(a) Availability. Without leave of court or written stipulation,

any party may serve upon any other party written interrogatories,

not exceeding 25 in number including all discrete subparts, to be

answered by the party served or, if the party served is a public or

private corporation or a partnership or association or governmental

agency, by any officer or agent, who shall furnish such information

as is available to the party. Leave to serve additional

interrogatories shall be granted to the extent consistent with the

principles of Rule 26(b)(2). Without leave of court or written

stipulation, interrogatories may not be served before the time

specified in Rule 26(d).

(b) Answers and Objections.

(1) Each interrogatory shall be answered separately and fully

in writing under oath, unless it is objected to, in which event

the objecting party shall state the reasons for objection and

shall answer to the extent the interrogatory is not

objectionable.

(2) The answers are to be signed by the person making them, and

the objections signed by the attorney making them.

(3) The party upon whom the interrogatories have been served

shall serve a copy of the answers, and objections if any, within

30 days after the service of the interrogatories. A shorter or

longer time may be directed by the court or, in the absence of

such an order, agreed to in writing by the parties subject to

Rule 29.

(4) All grounds for an objection to an interrogatory shall be

stated with specificity. Any ground not stated in a timely

objection is waived unless the party's failure to object is

excused by the court for good cause shown.

(5) The party submitting the interrogatories may move for an

order under Rule 37(a) with respect to any objection to or other

failure to answer an interrogatory.

(c) Scope; Use at Trial. Interrogatories may relate to any

matters which can be inquired into under Rule 26(b)(1), and the

answers may be used to the extent permitted by the rules of

evidence.

An interrogatory otherwise proper is not necessarily

objectionable merely because an answer to the interrogatory

involves an opinion or contention that relates to fact or the

application of law to fact, but the court may order that such an

interrogatory need not be answered until after designated discovery

has been completed or until a pre-trial conference or other later

time.

(d) Option to Produce Business Records. Where the answer to an

interrogatory may be derived or ascertained from the business

records of the party upon whom the interrogatory has been served or

from an examination, audit or inspection of such business records,

including a compilation, abstract or summary thereof, and the

burden of deriving or ascertaining the answer is substantially the

same for the party serving the interrogatory as for the party

served, it is a sufficient answer to such interrogatory to specify

the records from which the answer may be derived or ascertained and

to afford to the party serving the interrogatory reasonable

opportunity to examine, audit or inspect such records and to make

copies, compilations, abstracts or summaries. A specification shall

be in sufficient detail to permit the interrogating party to locate

and to identify, as readily as can the party served, the records

from which the answer may be ascertained.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff.

July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 22, 1993, eff.

Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

This rule restates the substance of [former] Equity Rule 58

(Discovery - Interrogatories - Inspection and Production of

Documents - Admission of Execution or Genuineness), with

modifications to conform to these rules.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

The added second sentence in the first paragraph of Rule 33

conforms with a similar change in Rule 26(a) and will avoid

litigation as to when the interrogatories may be served. Original

Rule 33 does not state the times at which parties may serve written

interrogatories upon each other. It has been the accepted view,

however, that the times were the same in Rule 33 as those stated in

Rule 26(a). United States v. American Solvents & Chemical Corp. of

California (D.Del. 1939) 30 F.Supp. 107; Sheldon v. Great Lakes

Transit Corp. (W.D.N.Y. 1942) 5 Fed.Rules Serv. 33.11, Case 3;

Musher Foundation, Inc. v. Alba Trading Co. (S.D.N.Y. 1941) 42

F.Supp. 281; 2 Moore's Federal Practice, (1938) 2621. The time

within which leave of court must be secured by a plaintiff has been

fixed at 10 days, in view of the fact that a defendant has 10 days

within which to make objections in any case, which should give him

ample time to engage counsel and prepare.

Further in the first paragraph of Rule 33, the word "service" is

substituted for "delivery" in conformance with the use of the word

"serve" elsewhere in the rule and generally throughout the rules.

See also Note to Rule 13(a) herein. The portion of the rule dealing

with practice on objections has been revised so as to afford a

clearer statement of the procedure. The addition of the words "to

interrogatories to which objection is made" insures that only the

answers to the objectionable interrogatories may be deferred, and

that the answers to interrogatories not objectionable shall be

forthcoming within the time prescribed in the rule. Under the

original wording, answers to all interrogatories may be withheld

until objections, sometimes to but a few interrogatories, are

determined. The amendment expedites the procedure of the rule and

serves to eliminate the strike value of objections to minor

interrogatories. The elimination of the last sentence of the

original rule is in line with the policy stated subsequently in

this note.

The added second paragraph in Rule 33 contributes clarity and

specificity as to the use and scope of interrogatories to the

parties. The field of inquiry will be as broad as the scope of

examination under Rule 26(b). There is no reason why

interrogatories should be more limited than depositions,

particularly when the former represent an inexpensive means of

securing useful information. See Hoffman v. Wilson Line, Inc.

(E.D.Pa. 1946) 9 Fed.Rules Serv. 33.514, Case 2; Brewster v.

Technicolor, Inc. (S.D.N.Y. 1941) 5 Fed.Rules Serv. 33.319, Case 3;

Kingsway Press, Inc. v. Farrell Publishing Corp. (S.D.N.Y. 1939) 30

F.Supp. 775. Under present Rule 33 some courts have unnecessarily

restricted the breadth of inquiry on various grounds. See Auer v.

Hershey Creamery Co. (D.N.J. 1939) 2 Fed.Rules Serv. 33.31, Case 2,

1 F.R.D. 14; Tudor v. Leslie (D.Mass. 1940) 4 Fed.Rules Serv.

33.324, Case 1. Other courts have read into the rule the

requirement that interrogation should be directed only towards

"important facts", and have tended to fix a more or less arbitrary

limit as to the number of interrogatories which could be asked in

any case. See Knox v. Alter (W.D.Pa. 1942) 6 Fed.Rules Serv.

33.352, Case 1; Byers Theaters, Inc. v. Murphy (W.D.Va. 1940) 3

Fed.Rules Serv. 33.31, Case 3, 1 F.R.D. 286; Coca-Cola Co. v.

Dixi-Cola Laboratories, Inc. (D.Md. 1939) 30 F.Supp. 275. See also

comment on these restrictions in Holtzoff, Instruments of Discovery

Under Federal Rules of Civil Procedure (1942) 41 Mich.L.Rev. 205,

216-217. Under amended Rule 33, the party interrogated is given the

right to invoke such protective orders under Rule 30(b) as are

appropriate to the situation. At the same time, it is provided that

the number of or number of sets of interrogatories to be served may

not be limited arbitrarily or as a general policy to any particular

number, but that a limit may be fixed only as justice requires to

avoid annoyance, expense, embarrassment or oppression in individual

cases. The party interrogated, therefore, must show the necessity

for limitation on that basis. It will be noted that in accord with

this change the last sentence of the present rule, restricting the

sets of interrogatories to be served, has been stricken. In J.

Schoeneman, Inc. v. Brauer (W.D.Mo. 1940) 3 Fed.Rules Serv. 33.31,

Case 2, the court said: "Rule 33 . . . has been interpreted . . .

as being just as broad in its implications as in the case of

depositions . . . It makes no difference therefore, how many

interrogatories are propounded. If the inquiries are pertinent the

opposing party cannot complain." To the same effect, see Canuso v.

City of Niagara Falls (W.D.N.Y. 1945) 8 Fed.Rules Serv. 33.352,

Case 1; Hoffman v. Wilson Line, Inc., supra.

By virtue of express language in the added second paragraph of

Rule 33, as amended, any uncertainty as to the use of the answers

to interrogatories is removed. The omission of a provision on this

score in the original rule has caused some difficulty. See, e.g.,

Bailey v. New England Mutual Life Ins. Co. (S.D.Cal. 1940) 4

Fed.Rules Serv. 33.46, Case 1.

The second sentence of the second paragraph in Rule 33, as

amended, concerns the situation where a party wishes to serve

interrogatories on a party after having taken his deposition, or

vice versa. It has been held that an oral examination of a party,

after the submission to him and answer of interrogatories, would be

permitted. Howard v. State Marine Corp. (S.D.N.Y. 1940) 4 Fed.Rules

Serv. 33.62, Case 1, 1 F.R.D. 499; Stevens v. Minder Construction

Co. (S.D.N.Y. 1943) 7 Fed.Rules Serv. 30b.31, Case 2. But

objections have been sustained to interrogatories served after the

oral deposition of a party had been taken. McNally v. Simons

(S.D.N.Y. 1940) 3 Fed.Rules Serv. 33.61, Case 1, 1 F.R.D. 254;

Currier v. Currier (S.D.N.Y. 1942) 6 Fed.Rules Serv. 33.61, Case 1.

Rule 33, as amended, permits either interrogatories after a

deposition or a deposition after interrogatories. It may be quite

desirable or necessary to elicit additional information by the

inexpensive method of interrogatories where a deposition has

already been taken. The party to be interrogated, however, may seek

a protective order from the court under Rule 30(b) where the

additional deposition or interrogation works a hardship or

injustice on the party from whom it is sought.

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT

Subdivision (a). The mechanics of the operation of Rule 33 are

substantially revised by the proposed amendment, with a view to

reducing court intervention. There is general agreement that

interrogatories spawn a greater percentage of objections and

motions than any other discovery device. The Columbia Survey shows

that, although half of the litigants resorted to depositions and

about one-third used interrogatories, about 65 percent of the

objections were made with respect to interrogatories and 26 percent

related to depositions. See also Speck, The Use of Discovery in

United States District Courts, 60 Yale L.J. 1132, 1144, 1151

(1951); Note, 36 Minn.L.Rev. 364, 379 (1952).

The procedures now provided in Rule 33 seem calculated to

encourage objections and court motions. The time periods now

allowed for responding to interrogatories - 15 days for answers and

10 days for objections - are too short. The Columbia Survey shows

that tardy response to interrogatories is common, virtually

expected. The same was reported in Speck, supra, 60 Yale L.J. 1132,

1144. The time pressures tend to encourage objections as a means of

gaining time to answer.

The time for objections is even shorter than for answers, and the

party runs the risk that if he fails to object in time he may have

waived his objections. E.g., Cleminshaw v. Beech Aircraft Corp., 21

F.R.D. 300 (D.Del. 1957); see 4 Moore's Federal Practice, ¶

33.27 (2d ed. 1966); 2A Barron & Holtzoff, Federal Practice and

Procedure 372-373 (Wright ed. 1961). It often seems easier to

object than to seek an extension of time. Unlike Rules 30(d) and

37(a), Rule 33 imposes no sanction of expenses on a party whose

objections are clearly unjustified.

Rule 33 assures that the objections will lead directly to court,

through its requirement that they be served with a notice of

hearing. Although this procedure does preclude an out-of-court

resolution of the dispute, the procedure tends to discourage

informal negotiations. If answers are served and they are thought

inadequate, the interrogating party may move under Rule 37(a) for

an order compelling adequate answers. There is no assurance that

the hearing on objections and that on inadequate answers will be

heard together.

The amendment improves the procedure of Rule 33 in the following

respects:

(1) The time allowed for response is increased to 30 days and

this time period applies to both answers and objections, but a

defendant need not respond in less than 45 days after service of

the summons and complaint upon him. As is true under existing law,

the responding party who believes that some parts or all of the

interrogatories are objectionable may choose to seek a protective

order under new Rule 26(c) or may serve objections under this rule.

Unless he applies for a protective order, he is required to serve

answers or objections in response to the interrogatories, subject

to the sanctions provided in Rule 37(d). Answers and objections are

served together, so that a response to each interrogatory is

encouraged, and any failure to respond is easily noted.

(2) In view of the enlarged time permitted for response, it is no

longer necessary to require leave of court for service of

interrogatories. The purpose of this requirement - that defendant

have time to obtain counsel before a response must be made - is

adequately fulfilled by the requirement that interrogatories be

served upon a party with or after service of the summons and

complaint upon him.

Some would urge that the plaintiff nevertheless not be permitted

to serve interrogatories with the complaint. They fear that a

routine practice might be invited, whereby form interrogatories

would accompany most complaints. More fundamentally, they feel

that, since very general complaints are permitted in present-day

pleading, it is fair that the defendant have a right to take the

lead in serving interrogatories. (These views apply also to Rule

36.) The amendment of Rule 33 rejects these views, in favor of

allowing both parties to go forward with discovery, each free to

obtain the information he needs respecting the case.

(3) If objections are made, the burden is on the interrogating

party to move under Rule 37(a) for a court order compelling

answers, in the course of which the court will pass on the

objections. The change in the burden of going forward does not

alter the existing obligation of an objecting party to justify his

objections. E.g., Pressley v. Boehlke, 33 F.R.D. 316 (W.D.N.C.

1963). If the discovering party asserts than an answer is

incomplete or evasive, again he may look to Rule 37(a) for relief,

and he should add this assertion to his motion to overrule

objections. There is no requirement that the parties consult

informally concerning their differences, but the new procedure

should encourage consultation, and the court may by local rule

require it.

The proposed changes are similar in approach to those adopted by

California in 1961. See Calif.Code Civ.Proc. Sec. 2030(a). The

experience of the Los Angeles Superior Court is informally reported

as showing that the California amendment resulted in a significant

reduction in court motions concerning interrogatories. Rhode Island

takes a similar approach. See R. 33, R.I.R.Civ.Proc. Official

Draft, p. 74 (Boston Law Book Co.).

A change is made in subdivision (a) which is not related to the

sequence of procedures. The restriction to "adverse" parties is

eliminated. The courts have generally construed this restriction as

precluding interrogatories unless an issue between the parties is

disclosed by the pleadings - even though the parties may have

conflicting interests. E.g., Mozeika v. Kaufman Construction Co.,

25 F.R.D. 233 (E.D.Pa. 1960) (plaintiff and third-party defendant);

Biddle v. Hutchinson, 24 F.R.D. 256 (M.D.Pa. 1959) (codefendants).

The resulting distinctions have often been highly technical. In

Schlagenhauf v. Holder, 379 U.S. 104 (1964), the Supreme Court

rejected a contention that examination under Rule 35 could be had

only against an "opposing" party, as not in keeping "with the aims

of a liberal, nontechnical application of the Federal Rules." 379

U.S. at 116. Eliminating the requirement of "adverse" parties from

Rule 33 brings it into line with all other discovery rules.

A second change in subdivision (a) is the addition of the term

"governmental agency" to the listing of organizations whose answers

are to be made by any officer or agent of the organization. This

does not involve any change in existing law. Compare the similar

listing in Rule 30(b)(6).

The duty of a party to supplement his answers to interrogatories

is governed by a new provision in Rule 26(e).

Subdivision (b). There are numerous and conflicting decisions on

the question whether and to what extent interrogatories are limited

to matters "of fact," or may elicit opinions, contentions, and

legal conclusions. Compare, e.g., Payer, Hewitt & Co. v. Bellanca

Corp., 26 F.R.D. 219 (D.Del. 1960) (opinions bad); Zinsky v. New

York Central R.R., 36 F.R.D. 680 (N.D.Ohio 1964) (factual opinion

or contention good, but legal theory bad); United States v. Carter

Products, Inc., 28 F.R.D. 373 (S.D.N.Y.1961) (factual contentions

and legal theories bad) with Taylor v. Sound Steamship Lines, Inc.,

100 F.Supp. 388 (D.Conn. 1951) (opinions good), Bynum v. United

States, 36 F.R.D. 14 (E.D.La. 1964) (contentions as to facts

constituting negligence good). For lists of the many conflicting

authorities, see 4 Moore's Federal Practice ¶ 33.17 (2d ed.

1966); 2A Barron & Holtzoff, Federal Practice and Procedure Sec.

768 (Wright ed. 1961).

Rule 33 is amended to provide that an interrogatory is not

objectionable merely because it calls for an opinion or contention

that relates to fact or the application of law to fact. Efforts to

draw sharp lines between facts and opinions have invariably been

unsuccessful, and the clear trend of the cases is to permit

"factual" opinions. As to requests for opinions or contentions that

call for the application of law to fact, they can be most useful in

narrowing and sharpening the issues, which is a major purpose of

discovery. See Diversified Products Corp. v. Sports Center Co., 42

F.R.D. 3 (D.Md. 1967); Moore, supra; Field & McKusick, Maine Civil

Practice Sec. 26.18 (1959). On the other hand, under the new

language interrogatories may not extend to issues of "pure law,"

i.e., legal issues unrelated to the facts of the case. Cf. United

States v. Maryland & Va. Milk Producers Assn., Inc., 22 F.R.D. 300

(D.D.C. 1958).

Since interrogatories involving mixed questions of law and fact

may create disputes between the parties which are best resolved

after much or all of the other discovery has been completed, the

court is expressly authorized to defer an answer. Likewise, the

court may delay determination until pretrial conference, if it

believes that the dispute is best resolved in the presence of the

judge.

The principal question raised with respect to the cases

permitting such interrogatories is whether they reintroduce

undesirable aspects of the prior pleading practice, whereby parties

were chained to misconceived contentions or theories, and ultimate

determination on the merits was frustrated. See James, The Revival

of Bills of Particulars under the Federal Rules, 71 Harv.L.Rev.

1473 (1958). But there are few if any instances in the recorded

cases demonstrating that such frustration has occurred. The general

rule governing the use of answers to interrogatories is that under

ordinary circumstances they do not limit proof. See e.g., McElroy

v. United Air Lines, Inc., 21 F.R.D. 100 (W.D.Mo. 1967); Pressley

v. Boehlke, 33 F.R.D. 316, 317 (W.D.N.C. 1963). Although in

exceptional circumstances reliance on an answer may cause such

prejudice that the court will hold the answering party bound to his

answer, e.g., Zielinski v. Philadelphia Piers, Inc., 139 F.Supp.

408 (E.D.Pa. 1956), the interrogating party will ordinarily not be

entitled to rely on the unchanging character of the answers he

receives and cannot base prejudice on such reliance. The rule does

not affect the power of a court to permit withdrawal or amendment

of answers to interrogatories.

The use of answers to interrogatories at trial is made subject to

the rules of evidence. The provisions governing use of depositions,

to which Rule 33 presently refers, are not entirely apposite to

answers to interrogatories, since deposition practice contemplates

that all parties will ordinarily participate through

cross-examination. See 4 Moore's Federal Practice ¶ 33.29[1]

(2 ed. 1966).

Certain provisions are deleted from subdivision (b) because they

are fully covered by new Rule 26(c) providing for protective orders

and Rules 26(a) and 26(d). The language of the subdivision is thus

simplified without any change of substance.

Subdivision (c). This is a new subdivision, adopted from

Calif.Code Civ.Proc. Sec. 2030(c), relating especially to

interrogatories which require a party to engage in burdensome or

expensive research into his own business records in order to give

an answer. The subdivision gives the party an option to make the

records available and place the burden of research on the party who

seeks the information. "This provision, without undermining the

liberal scope of interrogatory discovery, places the burden of

discovery upon its potential benefitee," Louisell, Modern

California Discovery, 124-125 (1963), and alleviates a problem

which in the past has troubled Federal courts. See Speck, The Use

of Discovery in United States District Courts, 60 Yale L.J. 1132,

1142-1144 (1951). The interrogating party is protected against

abusive use of this provision through the requirement that the

burden of ascertaining the answer be substantially the same for

both sides. A respondent may not impose on an interrogating party a

mass of records as to which research is feasible only for one

familiar with the records. At the same time, the respondent unable

to invoke this subdivision does not on that account lose the

protection available to him under new Rule 26(c) against oppressive

or unduly burdensome or expensive interrogatories. And even when

the respondent successfully invokes the subdivision, the court is

not deprived of its usual power, in appropriate cases, to require

that the interrogating party reimburse the respondent for the

expense of assembling his records and making them intelligible.

NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT

Subdivision (c). The Committee is advised that parties upon whom

interrogatories are served have occasionally responded by directing

the interrogating party to a mass of business records or by

offering to make all of their records available, justifying the

response by the option provided by this subdivision. Such practices

are an abuse of the option. A party who is permitted by the terms

of this subdivision to offer records for inspection in lieu of

answering an interrogatory should offer them in a manner that

permits the same direct and economical access that is available to

the party. If the information sought exists in the form of

compilations, abstracts or summaries then available to the

responding party, those should be made available to the

interrogating party. The final sentence is added to make it clear

that a responding party has the duty to specify, by category and

location, the records from which answers to interrogatories can be

derived.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Purpose of Revision. The purpose of this revision is to reduce

the frequency and increase the efficiency of interrogatory

practice. The revision is based on experience with local rules. For

ease of reference, subdivision (a) is divided into two subdivisions

and the remaining subdivisions renumbered.

Subdivision (a). Revision of this subdivision limits

interrogatory practice. Because Rule 26(a)(1)-(3) requires

disclosure of much of the information previously obtained by this

form of discovery, there should be less occasion to use it.

Experience in over half of the district courts has confirmed that

limitations on the number of interrogatories are useful and

manageable. Moreover, because the device can be costly and may be

used as a means of harassment, it is desirable to subject its use

to the control of the court consistent with the principles stated

in Rule 26(b)(2), particularly in multi-party cases where it has

not been unusual for the same interrogatory to be propounded to a

party by more than one of its adversaries.

Each party is allowed to serve 25 interrogatories upon any other

party, but must secure leave of court (or a stipulation from the

opposing party) to serve a larger number. Parties cannot evade this

presumptive limitation through the device of joining as "subparts"

questions that seek information about discrete separate subjects.

However, 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.

As with the number of depositions authorized by Rule 30, leave to

serve additional interrogatories is to be allowed when consistent

with Rule 26(b)(2). The aim is not to prevent needed discovery, but

to provide judicial scrutiny before parties make potentially

excessive use of this discovery device. In many cases it will be

appropriate for the court to permit a larger number of

interrogatories in the scheduling order entered under Rule 16(b).

Unless leave of court is obtained, interrogatories may not be

served prior to the meeting of the parties under Rule 26(f).

When a case with outstanding interrogatories exceeding the number

permitted by this rule is removed to federal court, the

interrogating party must seek leave allowing the additional

interrogatories, specify which twenty-five are to be answered, or

resubmit interrogatories that comply with the rule. Moreover, under

Rule 26(d), the time for response would be measured from the date

of the parties' meeting under Rule 26(f). See Rule 81(c), providing

that these rules govern procedures after removal.

Subdivision (b). A separate subdivision is made of the former

second paragraph of subdivision (a). Language is added to paragraph

(1) of this subdivision to emphasize the duty of the responding

party to provide full answers to the extent not objectionable. If,

for example, an interrogatory seeking information about numerous

facilities or products is deemed objectionable, but an

interrogatory seeking information about a lesser number of

facilities or products would not have been objectionable, the

interrogatory should be answered with respect to the latter even

though an objection is raised as to the balance of the facilities

or products. Similarly, the fact that additional time may be needed

to respond to some questions (or to some aspects of questions)

should not justify a delay in responding to those questions (or

other aspects of questions) that can be answered within the

prescribed time.

Paragraph (4) is added to make clear that objections must be

specifically justified, and that unstated or untimely grounds for

objection ordinarily are waived. Note also the provisions of

revised Rule 26(b)(5), which require a responding party to indicate

when it is withholding information under a claim of privilege or as

trial preparation materials.

These provisions should be read in light of Rule 26(g),

authorizing the court to impose sanctions on a party and attorney

making an unfounded objection to an interrogatory.

Subdivisions (c) and (d). The provisions of former subdivisions

(b) and (c) are renumbered.

-End-

-CITE-

28 USC APPENDIX Rule 34 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 34. Production of Documents and Things and Entry Upon Land for

Inspection and Other Purposes

-STATUTE-

(a) Scope. Any party may serve on any other party a request (1)

to produce and permit the party making the request, or someone

acting on the requestor's behalf, to inspect and copy, any

designated documents (including writings, drawings, graphs, charts,

photographs, phonorecords, and other data compilations from which

information can be obtained, translated, if necessary, by the

respondent through detection devices into reasonably usable form),

or to inspect and copy, test, or sample any tangible things which

constitute or contain matters within the scope of Rule 26(b) and

which are in the possession, custody or control of the party upon

whom the request is served; or (2) to permit entry upon designated

land or other property in the possession or control of the party

upon whom the request is served for the purpose of inspection and

measuring, surveying, photographing, testing, or sampling the

property or any designated object or operation thereon, within the

scope of Rule 26(b).

(b) Procedure. The request shall set forth, either by individual

item or by category, the items to be inspected, and describe each

with reasonable particularity. The request shall specify a

reasonable time, place, and manner of making the inspection and

performing the related acts. Without leave of court or written

stipulation, a request may not be served before the time specified

in Rule 26(d).

The party upon whom the request is served shall serve a written

response within 30 days after the service of the request. A shorter

or longer time may be directed by the court or, in the absence of

such an order, agreed to in writing by the parties, subject to Rule

29. The response shall state, with respect to each item or

category, that inspection and related activities will be permitted

as requested, unless the request is objected to, in which event the

reasons for the objection shall be stated. If objection is made to

part of an item or category, the part shall be specified and

inspection permitted of the remaining parts. The party submitting

the request may move for an order under Rule 37(a) with respect to

any objection to or other failure to respond to the request or any

part thereof, or any failure to permit inspection as requested.

A party who produces documents for inspection shall produce them

as they are kept in the usual course of business or shall organize

and label them to correspond with the categories in the request.

(c) Persons Not Parties. A person not a party to the action may

be compelled to produce documents and things or to submit to an

inspection as provided in Rule 45.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff.

July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff.

Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff.

Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

In England orders are made for the inspection of documents,

English Rules Under the Judicature Act (The Annual Practice, 1937)

O. 31, r.r. 14, et seq., or for the inspection of tangible property

or for entry upon land, O. 50, r.3. Michigan provides for

inspection of damaged property when such damage is the ground of

the action. Mich.Court Rules Ann. (Searl, 1933) Rule 41, Sec. 2.

Practically all states have statutes authorizing the court to

order parties in possession or control of documents to permit other

parties to inspect and copy them before trial. See Ragland,

Discovery Before Trial (1932), Appendix, p. 267, setting out the

statutes.

Compare [former] Equity Rule 58 (Discovery - Interrogatories -

Inspection and Production of Documents - Admission of Execution or

Genuineness) (fifth paragraph).

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

The changes in clauses (1) and (2) correlate the scope of inquiry

permitted under Rule 34 with that provided in Rule 26(b), and thus

remove any ambiguity created by the former differences in language.

As stated in Olson Transportation Co. v. Socony-Vacuum Oil Co.

(E.D.Wis. 1944) 8 Fed.Rules Serv. 34.41, Case 2, ". . . Rule 34 is

a direct and simple method of discovery." At the same time the

addition of the words following the term "parties" makes certain

that the person in whose custody, possession, or control the

evidence reposes may have the benefit of the applicable protective

orders stated in Rule 30(b). This change should be considered in

the light of the proposed expansion of Rule 30(b).

An objection has been made that the word "designated" in Rule 34

has been construed with undue strictness in some district court

cases so as to require great and impracticable specificity in the

description of documents, papers, books, etc., sought to be

inspected. The Committee, however, believes that no amendment is

needed, and that the proper meaning of "designated" as requiring

specificity has already been delineated by the Supreme Court. See

Brown v. United States (1928) 276 U.S. 134, 143 ("The subpoena . .

. specifies . . . with reasonable particularity the subjects to

which the documents called for related."); Consolidated Rendering

Co. v. Vermont (1908) 207 U.S. 541, 543-544 ("We see no reason why

all such books, papers and correspondence which related to the

subject of inquiry, and were described with reasonable detail,

should not be called for and the company directed to produce them.

Otherwise, the State would be compelled to designate each

particular paper which it desired, which presupposes an accurate

knowledge of such papers, which the tribunal desiring the papers

would probably rarely, if ever, have.").

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT

Rule 34 is revised to accomplish the following major changes in

the existing rule: (1) to eliminate the requirement of good cause;

(2) to have the rule operate extrajudicially; (3) to include

testing and sampling as well as inspecting or photographing

tangible things; and (4) to make clear that the rule does not

preclude an independent action for analogous discovery against

persons not parties.

Subdivision (a). Good cause is eliminated because it has

furnished an uncertain and erratic protection to the parties from

whom production is sought and is now rendered unnecessary by virtue

of the more specific provisions added to Rule 26(b) relating to

materials assembled in preparation for trial and to experts

retained or consulted by parties.

The good cause requirement was originally inserted in Rule 34 as

a general protective provision in the absence of experience with

the specific problems that would arise thereunder. As the note to

Rule 26(b)(3) on trial preparation materials makes clear, good

cause has been applied differently to varying classes of documents,

though not without confusion. It has often been said in court

opinions that good cause requires a consideration of need for the

materials and of alternative means of obtaining them, i.e.,

something more than relevance and lack of privilege. But the

overwhelming proportion of the cases in which the formula of good

cause has been applied to require a special showing are those

involving trial preparation. In practice, the courts have not

treated documents as having a special immunity to discovery simply

because of their being documents. Protection may be afforded to

claims of privacy or secrecy or of undue burden or expense under

what is now Rule 26(c) (previously Rule 30(b)). To be sure, an

appraisal of "undue" burden inevitably entails consideration of the

needs of the party seeking discovery. With special provisions added

to govern trial preparation materials and experts, there is no

longer any occasion to retain the requirement of good cause.

The revision of Rule 34 to have it operate extrajudicially,

rather than by court order, is to a large extent a reflection of

existing law office practice. The Columbia Survey shows that of the

litigants seeking inspection of documents or things, only about 25

percent filed motions for court orders. This minor fraction

nevertheless accounted for a significant number of motions. About

half of these motions were uncontested and in almost all instances

the party seeking production ultimately prevailed. Although an

extrajudicial procedure will not drastically alter existing

practice under Rule 34 - it will conform to it in most cases - it

has the potential of saving court time in a substantial though

proportionately small number of cases tried annually.

The inclusion of testing and sampling of tangible things and

objects or operations on land reflects a need frequently

encountered by parties in preparation for trial. If the operation

of a particular machine is the basis of a claim for negligent

injury, it will often be necessary to test its operating parts or

to sample and test the products it is producing. Cf. Mich.Gen.Ct.R.

310.1(1) (1963) (testing authorized).

The inclusive description of "documents" is revised to accord

with changing technology. It makes clear that Rule 34 applies to

electronic data compilations from which information can be obtained

only with the use of detection devices, and that when the data can

as a practical matter be made usable by the discovering party only

through respondent's devices, respondent may be required to use his

devices to translate the data into usable form. In many instances,

this means that respondent will have to supply a print-out of

computer data. The burden thus placed on respondent will vary from

case to case, and the courts have ample power under Rule 26(c) to

protect respondent against undue burden of expense, either by

restricting discovery or requiring that the discovering party pay

costs. Similarly, if the discovering party needs to check the

electronic source itself, the court may protect respondent with

respect to preservation of his records, confidentially of

nondiscoverable matters, and costs.

Subdivision (b). The procedure provided in Rule 34 is essentially

the same as that in Rule 33, as amended, and the discussion in the

note appended to that rule is relevant to Rule 34 as well. Problems

peculiar to Rule 34 relate to the specific arrangements that must

be worked out for inspection and related acts of copying,

photographing, testing, or sampling. The rule provides that a

request for inspection shall set forth the items to be inspected

either by item or category, describing each with reasonable

particularity, and shall specify a reasonable time, place, and

manner of making the inspection.

Subdivision (c). Rule 34 as revised continues to apply only to

parties. Comments from the bar make clear that in the preparation

of cases for trial it is occasionally necessary to enter land or

inspect large tangible things in the possession of a person not a

party, and that some courts have dismissed independent actions in

the nature of bills in equity for such discovery on the ground that

Rule 34 is preemptive. While an ideal solution to this problem is

to provide for discovery against persons not parties in Rule 34,

both the jurisdictional and procedural problems are very complex.

For the present, this subdivision makes clear that Rule 34 does not

preclude independent actions for discovery against persons not

parties.

NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT

Subdivision (b). The Committee is advised that, "It is apparently

not rare for parties deliberately to mix critical documents with

others in the hope of obscuring significance." Report of the

Special Committee for the Study of Discovery Abuse, Section of

Litigation of the American Bar Association (1977) 22. The sentence

added by this subdivision follows the recommendation of the Report.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

This amendment reflects the change effected by revision of Rule

45 to provide for subpoenas to compel non-parties to produce

documents and things and to submit to inspections of premises. The

deletion of the text of the former paragraph is not intended to

preclude an independent action for production of documents or

things or for permission to enter upon land, but such actions may

no longer be necessary in light of this revision.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

The rule is revised to reflect the change made by Rule 26(d),

preventing a party from seeking formal discovery prior to the

meeting of the parties required by Rule 26(f). Also, like a change

made in Rule 33, the rule is modified to make clear that, if a

request for production is objectionable only in part, production

should be afforded with respect to the unobjectionable portions.

When a case with outstanding requests for production is removed

to federal court, the time for response would be measured from the

date of the parties' meeting. See Rule 81(c), providing that these

rules govern procedures after removal.

-End-

-CITE-

28 USC APPENDIX Rule 35 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 35. Physical and Mental Examinations of Persons

-STATUTE-

(a) Order for Examination. When the mental or physical condition

(including the blood group) of a party or of a person in the

custody or under the legal control of a party, is in controversy,

the court in which the action is pending may order the party to

submit to a physical or mental examination by a suitably licensed

or certified examiner or to produce for examination the person in

the party's custody or legal control. The order may be made only on

motion for good cause shown and upon notice to the person to be

examined and to all parties and shall specify the time, place,

manner, conditions, and scope of the examination and the person or

persons by whom it is to be made.

(b) Report of Examiner.

(1) If requested by the party against whom an order is made

under Rule 35(a) or the person examined, the party causing the

examination to be made shall deliver to the requesting party a

copy of the detailed written report of the examiner setting out

the examiner's findings, including results of all tests made,

diagnoses and conclusions, together with like reports of all

earlier examinations of the same condition. After delivery the

party causing the examination shall be entitled upon request to

receive from the party against whom the order is made a like

report of any examination, previously or thereafter made, of the

same condition, unless, in the case of a report of examination of

a person not a party, the party shows that the party is unable to

obtain it. The court on motion may make an order against a party

requiring delivery of a report on such terms as are just, and if

an examiner fails or refuses to make a report the court may

exclude the examiner's testimony if offered at trial.

(2) By requesting and obtaining a report of the examination so

ordered or by taking the deposition of the examiner, the party

examined waives any privilege the party may have in that action

or any other involving the same controversy, regarding the

testimony of every other person who has examined or may

thereafter examine the party in respect of the same mental or

physical condition.

(3) This subdivision applies to examinations made by agreement

of the parties, unless the agreement expressly provides

otherwise. This subdivision does not preclude discovery of a

report of an examiner or the taking of a deposition of the

examiner in accordance with the provisions of any other rule.

-SOURCE-

(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff.

Aug. 1, 1987; Pub. L. 100-690, title VII, Sec. 7047(b), Nov. 18,

1988, 102 Stat. 4401; Apr. 30, 1991, eff. Dec. 1, 1991.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Physical examination of parties before trial is authorized by

statute or rule in a number of states. See Ariz.Rev.Code Ann.

(Struckmeyer, 1928) Sec. 4468; Mich.Court Rules Ann. (Searl, 1933)

Rule 41, Sec. 2; 2 N.J.Comp.Stat. (1910), N.Y.C.P.A. (1937) Sec.

306; 1 S.D.Comp.Laws (1929) Sec. 2716A; 3 Wash.Rev.Stat.Ann.

(Remington, 1932) Sec. 1230-1.

Mental examination of parties is authorized in Iowa. Iowa Code

(1935) ch. 491-F1. See McCash, The Evolution of the Doctrine of

Discovery and Its Present Status in Iowa, 20 Ia.L.Rev. 68 (1934).

The constitutionality of legislation providing for physical

examination of parties was sustained in Lyon v. Manhattan Railway

Co., 142 N.Y. 298, 37 N.E. 113 (1894), and McGovern v. Hope, 63

N.J.L. 76, 42 Atl. 830 (1899). In Union Pacific Ry. Co. v.

Botsford, 141 U.S. 250 (1891), it was held that the court could not

order the physical examination of a party in the absence of

statutory authority. But in Camden and Suburban Ry. Co. v. Stetson,

177 U.S. 172 (1900) where there was statutory authority for such

examination, derived from a state statute made operative by the

conformity act, the practice was sustained. Such authority is now

found in the present rule made operative by the Act of June 19,

1934, ch. 651, U.S.C., Title 28, Secs. 723b [see 2072] (Rules in

actions at law; Supreme Court authorized to make) and 723c [see

2072] (Union of equity and action at law rules; power of Supreme

Court).

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT

Subdivision (a). Rule 35(a) has hitherto provided only for an

order requiring a party to submit to an examination. It is

desirable to extend the rule to provide for an order against the

party for examination of a person in his custody or under his legal

control. As appears from the provisions of amended Rule 37(b)(2)

and the comment under that rule, an order to "produce" the third

person imposes only an obligation to use good faith efforts to

produce the person.

The amendment will settle beyond doubt that a parent or guardian

suing to recover for injuries to a minor may be ordered to produce

the minor for examination. Further, the amendment expressly

includes blood examination within the kinds of examinations that

can be ordered under the rule. See Beach v. Beach, 114 F.2d 479

(D.C. Cir. 1940). Provisions similar to the amendment have been

adopted in at least 10 States: Calif.Code Civ.Proc. Sec. 2032;

Ida.R.Civ.P. 35; Ill.S-H Ann. c. 110A, Sec. 215; Md.R.P. 420;

Mich.Gen. Ct.R. 311; Minn.R.Civ.P. 35; Mo.Vern.Ann.R.Civ.P. 60.01;

N.Dak.R.Civ.P. 35; N.Y.C.P.L. Sec. 3121; Wyo.R.Civ.P. 35.

The amendment makes no change in the requirements of Rule 35

that, before a court order may issue, the relevant physical or

mental condition must be shown to be "in controversy" and "good

cause" must be shown for the examination. Thus, the amendment has

no effect on the recent decision of the Supreme Court in

Schlagenhauf v. Holder, 379 U.S. 104 (1964), stressing the

importance of these requirements and applying them to the facts of

the case. The amendment makes no reference to employees of a party.

Provisions relating to employees in the State statutes and rules

cited above appear to have been virtually unused.

Subdivision (b)(1). This subdivision is amended to correct an

imbalance in Rule 35(b)(1) as heretofore written. Under that text,

a party causing a Rule 35(a) examination to be made is required to

furnish to the party examined, on request, a copy of the examining

physician's report. If he delivers this copy, he is in turn

entitled to receive from the party examined reports of all

examinations of the same condition previously or later made. But

the rule has not in terms entitled the examined party to receive

from the party causing the Rule 35(a) examination any reports of

earlier examinations of the same condition to which the latter may

have access. The amendment cures this defect. See La.Stat.Ann.,

Civ.Proc. art. 1495 (1960); Utah R.Civ.P.35(c).

The amendment specifies that the written report of the examining

physician includes results of all tests made, such as results of

X-rays and cardiograms. It also embodies changes required by the

broadening of Rule 35(a) to take in persons who are not parties.

Subdivision (b)(3). This new subdivision removes any possible

doubt that reports of examination may be obtained although no order

for examination has been made under Rule 35(a). Examinations are

very frequently made by agreement, and sometimes before the party

examined has an attorney. The courts have uniformly ordered that

reports be supplied, see 4 Moore's Federal Practice ¶ 35.06,

n.1 (2d ed. 1966); 2A Barron & Holtzoff, Federal Practice and

Procedure Sec. 823, n. 22 (Wright ed. 1961), and it appears best to

fill the technical gap in the present rule.

The subdivision also makes clear that reports of examining

physicians are discoverable not only under Rule 35(b) but under

other rules as well. To be sure, if the report is privileged, then

discovery is not permissible under any rule other than Rule 35(b)

and it is permissible under Rule 35(b) only if the party requests a

copy of the report of examination made by the other party's doctor.

Sher v. De Haven, 199 F.2d 777 (D.C. Cir. 1952), cert. denied 345

U.S. 936 (1953). But if the report is unprivileged and is subject

to discovery under the provisions of rules other than Rule 35(b) -

such as Rules 34 or 26(b)(3) or (4) - discovery should not depend

upon whether the person examined demands a copy of the report.

Although a few cases have suggested the contrary, e.g., Galloway v.

National Dairy Products Corp., 24 F.R.D. 362 (E.D.Pa. 1959), the

better considered district court decisions hold that Rule 35(b) is

not preemptive. E.g., Leszynski v. Russ, 29 F.R.D. 10, 12 (D.Md.

1961) and cases cited. The question was recently given full

consideration in Buffington v. Wood, 351 F.2d 292 (3d Cir. 1965),

holding that Rule 35(b) is not preemptive.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

The revision authorizes the court to require physical or mental

examinations conducted by any person who is suitably licensed or

certified.

The rule was revised in 1988 by Congressional enactment to

authorize mental examinations by licensed clinical psychologists.

This revision extends that amendment to include other certified or

licensed professionals, such as dentists or occupational

therapists, who are not physicians or clinical psychologists, but

who may be well-qualified to give valuable testimony about the

physical or mental condition that is the subject of dispute.

The requirement that the examiner be suitably licensed or

certified is a new requirement. The court is thus expressly

authorized to assess the credentials of the examiner to assure that

no person is subjected to a court-ordered examination by an

examiner whose testimony would be of such limited value that it

would be unjust to require the person to undergo the invasion of

privacy associated with the examination. This authority is not

wholly new, for under the former rule, the court retained

discretion to refuse to order an examination, or to restrict an

examination. 8 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE Sec.

2234 (1986 Supp.). The revision is intended to encourage the

exercise of this discretion, especially with respect to

examinations by persons having narrow qualifications.

The court's responsibility to determine the suitability of the

examiner's qualifications applies even to a proposed examination by

a physician. If the proposed examination and testimony calls for an

expertise that the proposed examiner does not have, it should not

be ordered, even if the proposed examiner is a physician. The rule

does not, however, require that the license or certificate be

conferred by the jurisdiction in which the examination is

conducted.

AMENDMENT BY PUBLIC LAW

1988 - Subd. (a). Pub. L. 100-690, Sec. 7047(b)(1), substituted

"physical examination by a physician, or mental examination by a

physician or psychologist" for "physical or mental examination by a

physician".

Subd. (b). Pub. L. 100-690, Sec. 7047(b)(2), inserted "or

psychologist" in heading, in two places in par. (1), and in two

places in par. (3).

Subd. (c). Pub. L. 100-690, Sec. 7047(b)(3), added subd. (c).

-End-

-CITE-

28 USC APPENDIX Rule 36 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 36. Requests for Admission

-STATUTE-

(a) Request for Admission. A party may serve upon any other party

a written request for the admission, for purposes of the pending

action only, of the truth of any matters within the scope of Rule

26(b)(1) set forth in the request that relate to statements or

opinions of fact or of the application of law to fact, including

the genuineness of any documents described in the request. Copies

of documents shall be served with the request unless they have been

or are otherwise furnished or made available for inspection and

copying. Without leave of court or written stipulation, requests

for admission may not be served before the time specified in Rule

26(d).

Each matter of which an admission is requested shall be

separately set forth. The matter is admitted unless, within 30 days

after service of the request, or within such shorter or longer time

as the court may allow or as the parties may agree to in writing,

subject to Rule 29, the party to whom the request is directed

serves upon the party requesting the admission a written answer or

objection addressed to the matter, signed by the party or by the

party's attorney. If objection is made, the reasons therefor shall

be stated. The answer shall specifically deny the matter or set

forth in detail the reasons why the answering party cannot

truthfully admit or deny the matter. A denial shall fairly meet the

substance of the requested admission, and when good faith requires

that a party qualify an answer or deny only a part of the matter of

which an admission is requested, the party shall specify so much of

it as is true and qualify or deny the remainder. An answering party

may not give lack of information or knowledge as a reason for

failure to admit or deny unless the party states that the party has

made reasonable inquiry and that the information known or readily

obtainable by the party is insufficient to enable the party to

admit or deny. A party who considers that a matter of which an

admission has been requested presents a genuine issue for trial may

not, on that ground alone, object to the request; the party may,

subject to the provisions of Rule 37(c), deny the matter or set

forth reasons why the party cannot admit or deny it.

The party who has requested the admissions may move to determine

the sufficiency of the answers or objections. Unless the court

determines that an objection is justified, it shall order that an

answer be served. If the court determines that an answer does not

comply with the requirements of this rule, it may order either that

the matter is admitted or that an amended answer be served. The

court may, in lieu of these orders, determine that final

disposition of the request be made at a pre-trial conference or at

a designated time prior to trial. The provisions of Rule 37(a)(4)

apply to the award of expenses incurred in relation to the motion.

(b) Effect of Admission. Any matter admitted under this rule is

conclusively established unless the court on motion permits

withdrawal or amendment of the admission. Subject to the provision

of Rule 16 governing amendment of a pre-trial order, the court may

permit withdrawal or amendment when the presentation of the merits

of the action will be subserved thereby and the party who obtained

the admission fails to satisfy the court that withdrawal or

amendment will prejudice that party in maintaining the action or

defense on the merits. Any admission made by a party under this

rule is for the purpose of the pending action only and is not an

admission for any other purpose nor may it be used against the

party in any other proceeding.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff.

July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff.

Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Compare similar rules: [Former] Equity Rule 58 (last paragraph,

which provides for the admission of the execution and genuineness

of documents); English Rules Under the Judicature Act (The Annual

Practice, 1937) O. 32; Ill.Rev.Stat. (1937) ch. 110, Sec. 182 and

Rule 18 (Ill.Rev.Stat. (1937) ch. 110, Sec. 259.18); 2

Mass.Gen.Laws (Ter.Ed., 1932) ch. 231, Sec. 69; Mich.Court Rules

Ann. (Searl, 1933) Rule 42; N.J.Comp.Stat. (2 Cum.Supp. 1911-1924)

N.Y.C.P.A. (1937) Secs. 322, 323; Wis.Stat. (1935) Sec. 327.22.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

The first change in the first sentence of Rule 36(a) and the

addition of the new second sentence, specifying when requests for

admissions may be served, bring Rule 36 in line with amended Rules

26(a) and 33. There is no reason why these rules should not be

treated alike. Other provisions of Rule 36(a) give the party whose

admissions are requested adequate protection.

The second change in the first sentence of the rule [subdivision

(a)] removes any uncertainty as to whether a party can be called

upon to admit matters of fact other than those set forth in

relevant documents described in and exhibited with the request. In

Smyth v. Kaufman (C.C.A.2d, 1940) 114 F.(2d) 40, it was held that

the word "therein", now stricken from the rule [said subdivision]

referred to the request and that a matter of fact not related to

any document could be presented to the other party for admission or

denial. The rule of this case is now clearly stated.

The substitution of the word "served" for "delivered" in the

third sentence of the amended rule [said subdivision] is in

conformance with the use of the word "serve" elsewhere in the rule

and generally throughout the rules. See also Notes to Rules 13(a)

and 33 herein. The substitution [in said subdivision] of "shorter

or longer" for "further" will enable a court to designate a lesser

period than 10 days for answer. This conforms with a similar

provision already contained in Rule 33.

The addition of clause (2) [in said subdivision] specifies the

method by which a party may challenge the propriety of a request to

admit. There has been considerable difference of judicial opinion

as to the correct method, if any, available to secure relief from

an allegedly improper request. See Commentary, Methods of Objecting

to Notice to Admit (1942) 5 Fed.Rules Serv. 835; International

Carbonic Engineering Co. v. Natural Carbonic Products, Inc.

(S.D.Cal. 1944) 57 F.Supp. 248. The changes in clause (1) are

merely of a clarifying and conforming nature.

The first of the added last two sentences [in said subdivision]

prevents an objection to a part of a request from holding up the

answer, if any, to the remainder. See similar proposed change in

Rule 33. The last sentence strengthens the rule by making the

denial accurately reflect the party's position. It is taken, with

necessary changes, from Rule 8(b).

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT

Rule 36 serves two vital purposes, both of which are designed to

reduce trial time. Admissions are sought, 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.

The changes made in the rule are designed to serve these purposes

more effectively. Certain disagreements in the courts about the

proper scope of the rule are resolved. In addition, the procedural

operation of the rule is brought into line with other discovery

procedures, and the binding effect of an admission is clarified.

See generally Finman, The Request for Admissions in Federal Civil

Procedure, 71 Yale L.J. 371 (1962).

Subdivision (a). As revised, the subdivision provides that a

request may be made to admit any matter within the scope of Rule

26(b) that relate to statements or opinions of fact or of the

application of law to fact. It thereby eliminates the requirement

that the matters be "of fact." This change resolves conflicts in

the court decisions as to whether a request to admit matters of

"opinion" and matters involving "mixed law and fact" is proper

under the rule. As to "opinion," compare, e.g., Jackson Bluff Corp.

v. Marcelle, 20 F.R.D. 139 (E.D.N.Y. 1957); California v. The S.S.

Jules Fribourg, 19 F.R.D. 432 (N.D.Calif. 1955), with e.g., Photon,

Inc. v. Harris Intertype, Inc., 28 F.R.D. 327 (D.Mass. 1961); Hise

v. Lockwood Grader Corp., 153 F.Supp 276 (D.Nebr. 1957). As to

"mixed law and fact" the majority of courts sustain objections,

e.g., Minnesota Mining and Mfg. Co. v. Norton Co., 36 F.R.D. 1

(N.D.Ohio 1964), but McSparran v. Hanigan, 225 F.Supp. 628 (E.D.Pa.

1963) is to the contrary.

Not only is it difficult as a practical matter to separate "fact"

from "opinion," see 4 Moore's Federal Practice ¶ 36.04 (2d ed.

1966); cf. 2A Barron & Holtzoff, Federal Practice and Procedure 317

(Wright ed. 1961), but an admission on a matter of opinion may

facilitate proof or narrow the issues or both. An admission of a

matter involving the application of law to fact may, in a given

case, even more clearly narrow the issues. For example, an

admission that an employee acted in the scope of his employment may

remove a major issue from the trial. In McSparran v. Hanigan,

supra, plaintiff admitted that "the premises on which said accident

occurred, were occupied or under the control" of one of the

defendants, 225 F.Supp. at 636. This admission, involving law as

well as fact, removed one of the issues from the lawsuit and

thereby reduced the proof required at trial. The amended provision

does not authorize requests for admissions of law unrelated to the

facts of the case.

Requests for admission involving the application of law to fact

may create disputes between the parties which are best resolved in

the presence of the judge after much or all of the other discovery

has been completed. Power is therefore expressly conferred upon the

court to defer decision until a pretrial conference is held or

until a designated time prior to trial. On the other hand, the

court should not automatically defer decision; in many instances,

the importance of the admission lies in enabling the requesting

party to avoid the burdensome accumulation of proof prior to the

pretrial conference.

Courts have also divided on whether an answering party may

properly object to request for admission as to matters which that

party regards as "in dispute." Compare, e.g., Syracuse Broadcasting

Corp. v. Newhouse, 271 F.2d 910, 917 (2d Cir. 1959); Driver v.

Gindy Mfg. Corp., 24 F.R.D. 473 (E.D.Pa. 1959); with e.g.,

McGonigle v. Baxter, 27 F.R.D. 504 (E.D.Pa. 1961); United States v.

Ehbauer, 13 F.R.D. 462 (W.D.Mo. 1952). The proper response in such

cases is an answer. The very purpose of the request is to ascertain

whether the answering party is prepared to admit or regards the

matter as presenting a genuine issue for trial. In his answer, the

party may deny, or he may give his reason for inability to admit or

deny the existence of a genuine issue. The party runs no risk of

sanctions if the matter is genuinely in issue, since Rule 37(c)

provides a sanction of costs only when there are no good reasons

for a failure to admit.

On the other hand, requests to admit may be so voluminous and so

framed that the answering party finds the task of identifying what

is in dispute and what is not unduly burdensome. If so, the

responding party may obtain a protective order under Rule 26(c).

Some of the decisions sustaining objections on "disputability"

grounds could have been justified by the burdensome character of

the requests. See, e.g., Syracuse Broadcasting Corp. v. Newhouse,

supra.

Another sharp split of authority exists on the question whether a

party may base his answer on lack of information or knowledge

without seeking out additional information. One line of cases has

held that a party may answer on the basis of such knowledge as he

has at the time he answers. E.g., Jackson Buff Corp. v. Marcelle,

20 F.R.D. 139 (E.D.N.Y. 1957); Sladek v. General Motors Corp., 16

F.R.D. 104 (S.D.Iowa 1954). A larger group of cases, supported by

commentators, has taken the view that if the responding party lacks

knowledge, he must inform himself in reasonable fashion. E.g., Hise

v. Lockwood Grader Corp., 153 F.Supp. 276 (D.Nebr. 1957); E. H.

Tate Co. v. Jiffy Enterprises, Inc., 16 F.R.D. 571 (E.D.Pa. 1954);

Finman, supra, 71 Yale L.J. 371, 404-409; 4 Moore's Federal

Practice ¶ 36.04 (2d ed. 1966); 2A Barron & Holtzoff, Federal

Practice and Procedure 509 (Wright ed. 1961).

The rule as revised adopts the majority view, as in keeping with

a basic principle of the discovery rules that a reasonable burden

may be imposed on the parties when its discharge will facilitate

preparation for trial and ease the trial process. It has been

argued against this view that one side should not have the burden

of "proving" the other side's case. The revised rule requires only

that the answering party make reasonable inquiry and secure such

knowledge and information as are readily obtainable by him. In most

instances, the investigation will be necessary either to his own

case or to preparation for rebuttal. Even when it is not, the

information may be close enough at hand to be "readily obtainable."

Rule 36 requires only that the party state that he has taken these

steps. The sanction for failure of a party to inform himself before

he answers lies in the award of costs after trial, as provided in

Rule 37(c).

The requirement that the answer to a request for admission be

sworn is deleted, in favor of a provision that the answer be signed

by the party or by his attorney. The provisions of Rule 36 make it

clear that admissions function very much as pleadings do. Thus,

when a party admits in part and denies in part, his admission is

for purposes of the pending action only and may not be used against

him in any other proceeding. The broadening of the rule to

encompass mixed questions of law and fact reinforces this feature.

Rule 36 does not lack a sanction for false answers; Rule 37(c)

furnishes an appropriate deterrent.

The existing language describing the available grounds for

objection to a request for admission is eliminated as neither

necessary nor helpful. The statement that objection may be made to

any request, which is "improper" adds nothing to the provisions

that the party serve an answer or objection addressed to each

matter and that he state his reasons for any objection. None of the

other discovery rules set forth grounds for objection, except so

far as all are subject to the general provisions of Rule 26.

Changes are made in the sequence of procedures in Rule 36 so that

they conform to the new procedures in Rules 33 and 34. The major

changes are as follows:

(1) The normal time for response to a request for admissions is

lengthened from 10 to 30 days, conforming more closely to

prevailing practice. A defendant need not respond, however, in less

than 45 days after service of the summons and complaint upon him.

The court may lengthen or shorten the time when special situations

require it.

(2) The present requirement that the plaintiff wait 10 days to

serve requests without leave of court is eliminated. The revised

provision accords with those in Rules 33 and 34.

(3) The requirement that the objecting party move automatically

for a hearing on his objection is eliminated, and the burden is on

the requesting party to move for an order. The change in the burden

of going forward does not modify present law on burden of

persuasion. The award of expenses incurred in relation to the

motion is made subject to the comprehensive provisions of Rule

37(a)(4).

(4) A problem peculiar to Rule 36 arises if the responding party

serves answers that are not in conformity with the requirements of

the rule - for example, a denial is not "specific," or the

explanation of inability to admit or deny is not "in detail." Rule

36 now makes no provision for court scrutiny of such answers before

trial, and it seems to contemplate that defective answers bring

about admissions just as effectively as if no answer had been

served. Some cases have so held. E.g., Southern Ry. Co. v. Crosby,

201 F.2d 878 (4th Cir. 1953); United States v. Laney, 96 F.Supp.

482 (E.D.S.C. 1951).

Giving a defective answer the automatic effect of an admission

may cause unfair surprise. A responding party who purported to deny

or to be unable to admit or deny will for the first time at trial

confront the contention that he has made a binding admission. Since

it is not always easy to know whether a denial is "specific" or an

explanation is "in detail," neither party can know how the court

will rule at trial and whether proof must be prepared. Some courts,

therefore, have entertained motions to rule on defective answers.

They have at times ordered that amended answers be served, when the

defects were technical, and at other times have declared that the

matter was admitted. E.g., Woods v. Stewart, 171 F.2d 544 (5th Cir.

1948); SEC v. Kaye, Real & Co., 122 F.Supp. 639 (S.D.N.Y. 1954);

Seib's Hatcheries, Inc. v. Lindley, 13 F.R.D. 113 (W.D.Ark. 1952).

The rule as revised conforms to the latter practice.

Subdivision (b). The rule does not now indicate the extent to

which a party is bound by his admission. Some courts view

admissions as the equivalent of sworn testimony E.g., Ark.-Tenn

Distributing Corp. v. Breidt, 209 F.2d 359 (3d Cir. 1954); United

States v. Lemons, 125 F.Supp. 686 (W.D.Ark. 1954); 4 Moore's

Federal Practice ¶ 36.08 (2d ed. 1966 Supp.). At least in some

jurisdictions a party may rebut his own testimony, e.g., Alamo v.

Del Rosario, 98 F.2d 328 (D.C.Cir. 1938), and by analogy an

admission made pursuant to Rule 36 may likewise be thought

rebuttable. The courts in Ark-Tenn and Lemons, supra, reasoned in

this way, although the results reached may be supported on

different grounds. In McSparran v. Hanigan, 225 F.Supp. 628,

636-637 (E.D.Pa. 1963), the court held that an admission is

conclusively binding, though noting the confusion created by prior

decisions.

The new provisions give an admission a conclusively binding

effect, for purposes only of the pending action, unless the

admission is withdrawn or amended. In form and substance a Rule 36

admission is comparable to an admission in pleadings or a

stipulation drafted by counsel for use at trial, rather than to an

evidentiary admission of a party. Louisell, Modern California

Discovery Sec. 8.07 (1963); 2A Barron & Holtzoff, Federal Practice

and Procedure Sec. 838 (Wright ed. 1961). Unless the party securing

an admission can depend on its binding effect, he cannot safely

avoid the expense of preparing to prove the very matters on which

he has secured the admission, and the purpose of the rule is

defeated. Field & McKusick, Maine Civil Practice Sec. 36.4 (1959);

Finman, supra, 71 Yale L.J. 371, 418-426; Comment, 56 Nw.U.L.Rev.

679, 682-683 (1961).

Provision is made for withdrawal or amendment of an admission.

This provision emphasizes the importance of having the action

resolved on the merits, while at the same time assuring each party

that justified reliance on an admission in preparation for trial

will not operate to his prejudice. Cf. Moosman v. Joseph P. Blitz,

Inc., 358 F.2d 686 (2d Cir. 1966).

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

The rule is revised to reflect the change made by Rule 26(d),

preventing a party from seeking formal discovery until after the

meeting of the parties required by Rule 26(f).

-End-

-CITE-

28 USC APPENDIX Rule 37 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 37. Failure to Make Disclosure or Cooperate in Discovery;

Sanctions

-STATUTE-

(a) Motion For Order Compelling Disclosure or Discovery. A party,

upon reasonable notice to other parties and all persons affected

thereby, may apply for an order compelling disclosure or discovery

as follows:

(1) Appropriate Court. An application for an order to a party

shall be made to the court in which the action is pending. An

application for an order to a person who is not a party shall be

made to the court in the district where the discovery is being,

or is to be, taken.

(2) Motion.

(A) If a party fails to make a disclosure required by Rule

26(a), any other party may move to compel disclosure and for

appropriate sanctions. The motion must include a certification

that the movant has in good faith conferred or attempted to

confer with the party not making the disclosure in an effort to

secure the disclosure without court action.

(B) If a deponent fails to answer a question propounded or

submitted under Rules 30 or 31, or a corporation or other

entity fails to make a designation under Rule 30(b)(6) or

31(a), or a party fails to answer an interrogatory submitted

under Rule 33, or if a party, in response to a request for

inspection submitted under Rule 34, fails to respond that

inspection will be permitted as requested or fails to permit

inspection as requested, the discovering party may move for an

order compelling an answer, or a designation, or an order

compelling inspection in accordance with the request. The

motion must include a certification that the movant has in good

faith conferred or attempted to confer with the person or party

failing to make the discovery in an effort to secure the

information or material without court action. When taking a

deposition on oral examination, the proponent of the question

may complete or adjourn the examination before applying for an

order.

(3) Evasive or Incomplete Disclosure, Answer, or Response. For

purposes of this subdivision an evasive or incomplete disclosure,

answer, or response is to be treated as a failure to disclose,

answer, or respond.

(4) Expenses and Sanctions.

(A) If the motion is granted or if the disclosure or

requested discovery is provided after the motion was filed, the

court shall, after affording an opportunity to be heard,

require the party or deponent whose conduct necessitated the

motion or the party or attorney advising such conduct or both

of them to pay to the moving party the reasonable expenses

incurred in making the motion, including attorney's fees,

unless the court finds that the motion was filed without the

movant's first making a good faith effort to obtain the

disclosure or discovery without court action, or that the

opposing party's nondisclosure, response, or objection was

substantially justified, or that other circumstances make an

award of expenses unjust.

(B) If the motion is denied, the court may enter any

protective order authorized under Rule 26(c) and shall, after

affording an opportunity to be heard, require the moving party

or the attorney filing the motion or both of them to pay to the

party or deponent who opposed the motion the reasonable

expenses incurred in opposing the motion, including attorney's

fees, unless the court finds that the making of the motion was

substantially justified or that other circumstances make an

award of expenses unjust.

(C) If the motion is granted in part and denied in part, the

court may enter any protective order authorized under Rule

26(c) and may, after affording an opportunity to be heard,

apportion the reasonable expenses incurred in relation to the

motion among the parties and persons in a just manner.

(b) Failure To Comply With Order.

(1) Sanctions by Court in District Where Deposition Is Taken.

If a deponent fails to be sworn or to answer a question after

being directed to do so by the court in the district in which the

deposition is being taken, the failure may be considered a

contempt of that court.

(2) Sanctions by Court in Which Action Is Pending. If a party

or an officer, director, or managing agent of a party or a person

designated under Rule 30(b)(6) or 31(a) to testify on behalf of a

party fails to obey an order to provide or permit discovery,

including an order made under subdivision (a) of this rule or

Rule 35, or if a party fails to obey an order entered under Rule

26(f), the court in which the action is pending may make such

orders in regard to the failure as are just, and among others the

following:

(A) An order that the matters regarding which the order was

made or any other designated facts shall be taken to be

established for the purposes of the action in accordance with

the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to

support or oppose designated claims or defenses, or prohibiting

that party from introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or

staying further proceedings until the order is obeyed, or

dismissing the action or proceeding or any part thereof, or

rendering a judgment by default against the disobedient party;

(D) In lieu of any of the foregoing orders or in addition

thereto, an order treating as a contempt of court the failure

to obey any orders except an order to submit to a physical or

mental examination;

(E) Where a party has failed to comply with an order under

Rule 35(a) requiring that party to produce another for

examination, such orders as are listed in paragraphs (A), (B),

and (C) of this subdivision, unless the party failing to comply

shows that that party is unable to produce such person for

examination.

In lieu of any of the foregoing orders or in addition

thereto, the court shall require the party failing to obey the

order or the attorney advising that party or both to pay the

reasonable expenses, including attorney's fees, caused by the

failure, unless the court finds that the failure was

substantially justified or that other circumstances make an

award of expenses unjust.

(c) Failure to Disclose; False or Misleading Disclosure; Refusal

to Admit.

(1) A party that without substantial justification fails to

disclose information required by Rule 26(a) or 26(e)(1), or to

amend a prior response to discovery as required by Rule 26(e)(2),

is not, unless such failure is harmless, permitted to use as

evidence at a trial, at a hearing, or on a motion any witness or

information not so disclosed. In addition to or in lieu of this

sanction, the court, on motion and after affording an opportunity

to be heard, may impose other appropriate sanctions. In addition

to requiring payment of reasonable expenses, including attorney's

fees, caused by the failure, these sanctions may include any of

the actions authorized under Rule 37(b)(2)(A), (B), and (C) and

may include informing the jury of the failure to make the

disclosure.

(2) If a party fails to admit the genuineness of any document

or the truth of any matter as requested under Rule 36, and if the

party requesting the admissions thereafter proves the genuineness

of the document or the truth of the matter, the requesting party

may apply to the court for an order requiring the other party to

pay the reasonable expenses incurred in making that proof,

including reasonable attorney's fees. The court shall make the

order unless it finds that (A) the request was held objectionable

pursuant to Rule 36(a), or (B) the admission sought was of no

substantial importance, or (C) the party failing to admit had

reasonable ground to believe that the party might prevail on the

matter, or (D) there was other good reason for the failure to

admit.

(d) Failure of Party to Attend at Own Deposition or Serve Answers

to Interrogatories or Respond to Request for Inspection. If a party

or an officer, director, or managing agent of a party or a person

designated under Rule 30(b)(6) or 31(a) to testify on behalf of a

party fails (1) to appear before the officer who is to take the

deposition, after being served with a proper notice, or (2) to

serve answers or objections to interrogatories submitted under Rule

33, after proper service of the interrogatories, or (3) to serve a

written response to a request for inspection submitted under Rule

34, after proper service of the request, the court in which the

action is pending on motion may make such orders in regard to the

failure as are just, and among others it may take any action

authorized under subparagraphs (A), (B), and (C) of subdivision

(b)(2) of this rule. Any motion specifying a failure under clause

(2) or (3) of this subdivision shall include a certification that

the movant has in good faith conferred or attempted to confer with

the party failing to answer or respond in an effort to obtain such

answer or response without court action. In lieu of any order or in

addition thereto, the court shall require the party failing to act

or the attorney advising that party or both to pay the reasonable

expenses, including attorney's fees, caused by the failure unless

the court finds that the failure was substantially justified or

that other circumstances make an award of expenses unjust.

The failure to act described in this subdivision may not be

excused on the ground that the discovery sought is objectionable

unless the party failing to act has a pending motion for a

protective order as provided by Rule 26(c).

[(e) Subpoena of Person in Foreign Country.] (Abrogated Apr. 29,

1980, eff. Aug. 1, 1980)

[(f) Expenses Against United States.] (Repealed Oct. 21, 1980,

eff. Oct. 1, 1981)

(g) Failure to Participate in the Framing of a Discovery Plan. If

a party or a party's attorney fails to participate in good faith in

the development and submission of a proposed discovery plan as

required by Rule 26(f), the court may, after opportunity for

hearing, require such party or attorney to pay to any other party

the reasonable expenses, including attorney's fees, caused by the

failure.

-SOURCE-

(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff.

July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Pub. L. 96-481,

title II, Sec. 205(a), Oct. 21, 1980, 94 Stat. 2330; Mar. 2, 1987,

eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000,

eff. Dec. 1, 2000.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

The provisions of this rule authorizing orders establishing facts

or excluding evidence or striking pleadings, or authorizing

judgments of dismissal or default, for refusal to answer questions

or permit inspection or otherwise make discovery, are in accord

with Hammond Packing Co. v. Arkansas, 212 U.S. 322 (1909), which

distinguishes between the justifiable use of such measures as a

means of compelling the production of evidence, and their

unjustifiable use, as in Hovey v. Elliott, 167 U.S. 409 (1897), for

the mere purpose of punishing for contempt.

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

The amendment substitutes the present statutory reference.

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT

Rule 37 provides generally for sanctions against parties or

persons unjustifiably resisting discovery. Experience has brought

to light a number of defects in the language of the rule as well as

instances in which it is not serving the purposes for which it was

designed. See Rosenberg, Sanctions to Effectuate Pretrial

Discovery, 58 Col.L.Rev. 480 (1958). In addition, changes being

made in other discovery rules requiring conforming amendments to

Rule 37.

Rule 37 sometimes refers to a "failure" to afford discovery and

at other times to a "refusal" to do so. Taking note of this dual

terminology, courts have imported into "refusal" a requirement of

"wilfullness." See Roth v. Paramount Pictures Corp., 8 F.R.D. 31

(W.D.Pa. 1948); Campbell v. Johnson, 101 F.Supp. 705, 707 (S.D.N.Y.

1951). In Societe Internationale v. Rogers, 357 U.S. 197 (1958),

the Supreme Court concluded that the rather random use of these two

terms in Rule 37 showed no design to use them with consistently

distinctive meanings, that "refused" in Rule 37(b)(2) meant simply

a failure to comply, and that wilfullness was relevant only to the

selection of sanctions, if any, to be imposed. Nevertheless, after

the decision in Societe, the court in Hinson v. Michigan Mutual

Liability Co., 275 F.2d 537 (5th Cir. 1960) once again ruled that

"refusal" required wilfullness. Substitution of "failure" for

"refusal" throughout Rule 37 should eliminate this confusion and

bring the rule into harmony with the Societe Internationale

decision. See Rosenberg, supra, 58 Col.L.Rev. 480, 489-490 (1958).

Subdivision (a). Rule 37(a) provides relief to a party seeking

discovery against one who, with or without stated objections, fails

to afford the discovery sought. It has always fully served this

function in relation to depositions, but the amendments being made

to Rules 33 and 34 give Rule 37(a) added scope and importance.

Under existing Rule 33, a party objecting to interrogatories must

make a motion for court hearing on his objections. The changes now

made in Rules 33 and 37(a) make it clear that the interrogating

party must move to compel answers, and the motion is provided for

in Rule 37(a). Existing Rule 34, since it requires a court order

prior to production of documents or things or permission to enter

on land, has no relation to Rule 37(a). Amendments of Rules 34 and

37(a) create a procedure similar to that provided for Rule 33.

Subdivision (a)(1). This is a new provision making clear to which

court a party may apply for an order compelling discovery. Existing

Rule 37(a) refers only to the court in which the deposition is

being taken; nevertheless, it has been held that the court where

the action is pending has "inherent power" to compel a party

deponent to answer. Lincoln Laboratories, Inc. v. Savage

Laboratories, Inc., 27 F.R.D. 476 (D.Del. 1961). In relation to

Rule 33 interrogatories and Rule 34 requests for inspection, the

court where the action is pending is the appropriate enforcing

tribunal. The new provision eliminates the need to resort to

inherent power by spelling out the respective roles of the court

where the action is pending and the court where the deposition is

taken. In some instances, two courts are available to a party

seeking to compel answers from a party deponent. The party seeking

discovery may choose the court to which he will apply, but the

court has power to remit the party to the other court as a more

appropriate forum.

Subdivision (a)(2). This subdivision contains the substance of

existing provisions of Rule 37(a) authorizing motions to compel

answers to questions put at depositions and to interrogatories. New

provisions authorize motions for orders compelling designation

under Rules 30(b)(6) and 31(a) and compelling inspection in

accordance with a request made under Rule 34. If the court denies a

motion, in whole or part, it may accompany the denial with issuance

of a protective order. Compare the converse provision in Rule

26(c).

Subdivision (a)(3). This new provision makes clear that an

evasive or incomplete answer is to be considered, for purposes of

subdivision (a), a failure to answer. The courts have consistently

held that they have the power to compel adequate answers. E.g.,

Cone Mills Corp. v. Joseph Bancroft & Sons Co., 33 F.R.D. 318

(D.Del. 1963). This power is recognized and incorporated into the

rule.

Subdivision (a)(4). This subdivision amends the provisions for

award of expenses, including reasonable attorney's fees, to the

prevailing party or person when a motion is made for an order

compelling discovery. At present, an award of expenses is made only

if the losing party or person is found to have acted without

substantial justification. The change requires that expenses be

awarded unless the conduct of the losing party or person is found

to have been substantially justified. The test of "substantial

justification" remains, but the change in language is intended to

encourage judges to be more alert to abuses occurring in the

discovery process.

On many occasions, to be sure, the dispute over discovery between

the parties is genuine, though ultimately resolved one way or the

other by the court. In such cases, the losing party is

substantially justified in carrying the matter to court. But the

rules should deter the abuse implicit in carrying or forcing a

discovery dispute to court when no genuine dispute exists. And the

potential or actual imposition of expenses is virtually the sole

formal sanction in the rules to deter a party from pressing to a

court hearing frivolous requests for or objections to discovery.

The present provision of Rule 37(a) that the court shall require

payment if it finds that the defeated party acted without

"substantial justification" may appear adequate, but in fact it has

been little used. Only a handful of reported cases include an award

of expenses, and the Columbia Survey found that in only one

instance out of about 50 motions decided under Rule 37(a) did the

court award expenses. It appears that the courts do not utilize the

most important available sanction to deter abusive resort to the

judiciary.

The proposed change provides in effect that expenses should

ordinarily be awarded unless a court finds that the losing party

acted justifiably in carrying his point to court. At the same time,

a necessary flexibility is maintained, since the court retains the

power to find that other circumstances make an award of expenses

unjust - as where the prevailing party also acted unjustifiably.

The amendment does not significantly narrow the discretion of the

court, but rather presses the court to address itself to abusive

practices. The present provision that expenses may be imposed upon

either the party or his attorney or both is unchanged. But it is

not contemplated that expenses will be imposed upon the attorney

merely because the party is indigent.

Subdivision (b). This subdivision deals with sanctions for

failure to comply with a court order. The present captions for

subsections (1) and (2) entitled, "Contempt" and "Other

Consequences," respectively, are confusing. One of the consequences

listed in (2) is the arrest of the party, representing the exercise

of the contempt power. The contents of the subsections show that

the first authorizes the sanction of contempt (and no other) by the

court in which the deposition is taken, whereas the second

subsection authorizes a variety of sanctions, including contempt,

which may be imposed by the court in which the action is pending.

The captions of the subsections are changed to deflect their

contents.

The scope of Rule 37(b)(2) is broadened by extending it to

include any order "to provide or permit discovery," including

orders issued under Rules 37(a) and 35. Various rules authorize

orders for discovery - e.g., Rule 35 (b)(1), Rule 26(c) as revised.

Rule 37(d). See Rosenberg, supra, 58 Col.L.Rev. 480, 484-486. Rule

37(b)(2) should provide comprehensively for enforcement of all

these orders. Cf. Societe Internationale v. Rogers, 357 U.S. 197,

207 (1958). On the other hand, the reference to Rule 34 is deleted

to conform to the changed procedure in that rule.

A new subsection (E) provides that sanctions which have been

available against a party for failure to comply with an order under

Rule 35(a) to submit to examination will now be available against

him for his failure to comply with a Rule 35(a) order to produce a

third person for examination, unless he shows that he is unable to

produce the person. In this context, "unable" means in effect

"unable in good faith." See Societe Internationale v. Rogers, 357

U.S. 197 (1958).

Subdivision (b)(2) is amplified to provide for payment of

reasonable expenses caused by the failure to obey the order.

Although Rules 37(b)(2) and 37(d) have been silent as to award of

expenses, courts have nevertheless ordered them on occasion. E.g.,

United Sheeplined Clothing Co. v. Arctic Fur Cap Corp., 165 F.Supp.

193 (S.D.N.Y.1958); Austin Theatre, Inc. v. Warner Bros. Picture,

Inc., 22 F.R.D. 302 (S.D.N.Y. 1958). The provision places the

burden on the disobedient party to avoid expenses by showing that

his failure is justified or that special circumstances make an

award of expenses unjust. Allocating the burden in this way

conforms to the changed provisions as to expenses in Rule 37(a),

and is particularly appropriate when a court order is disobeyed.

An added reference to directors of a party is similar to a change

made in subdivision (d) and is explained in the note to that

subdivision. The added reference to persons designated by a party

under Rules 30(b)(6) or 31(a) to testify on behalf of the party

carries out the new procedure in those rules for taking a

deposition of a corporation or other organization.

Subdivision (c). Rule 37(c) provides a sanction for the

enforcement of Rule 36 dealing with requests for admission. Rule 36

provides the mechanism whereby a party may obtain from another

party in appropriate instances either (1) and admission, or (2) a

sworn and specific denial, or (3) a sworn statement "setting forth

in detail the reasons why he cannot truthfully admit or deny." If

the party obtains the second or third of these responses, in proper

form, Rule 36 does not provide for a pretrial hearing on whether

the response is warranted by the evidence thus far accumulated.

Instead, Rule 37(c) is intended to provide posttrial relief in the

form of a requirement that the party improperly refusing the

admission pay the expenses of the other side in making the

necessary proof at trial.

Rule 37(c), as now written, addresses itself in terms only to the

sworn denial and is silent with respect to the statement of reasons

for an inability to admit or deny. There is no apparent basis for

this distinction, since the sanction provided in Rule 37(c) should

deter all unjustified failures to admit. This omission in the rule

has caused confused and diverse treatment in the courts. One court

has held that if a party gives inadequate reasons, he should be

treated before trial as having denied the request, so that Rule

37(c) may apply. Bertha Bldg. Corp. v. National Theatres Corp., 15

F.R.D. 339 (E.D.N.Y. 1954). Another has held that the party should

be treated as having admitted the request. Heng Hsin Co. v. Stern,

Morgenthau & Co., 20 Fed.Rules Serv. 36a.52, Case 1 (S.D.N.Y. Dec.

10, 1954). Still another has ordered a new response, without

indicating what the outcome should be if the new response were

inadequate. United States Plywood Corp. v. Hudson Lumber Co., 127

F.Supp. 489, 497-498 (S.D.N.Y. 1954). See generally Finman, The

Request for Admissions in Federal Civil Procedure, 71 Yale L.J.

371, 426-430 (1962). The amendment eliminates this defect in Rule

37(c) by bringing within its scope all failures to admit.

Additional provisions in Rule 37(c) protect a party from having

to pay expenses if the request for admission was held objectionable

under Rule 36(a) or if the party failing to admit had reasonable

ground to believe that he might prevail on the matter. The latter

provision emphasizes that the true test under Rule 37(c) is not

whether a party prevailed at trial but whether he acted reasonably

in believing that he might prevail.

Subdivision (d). The scope of subdivision (d) is broadened to

include responses to requests for inspection under Rule 34, thereby

conforming to the new procedures of Rule 34.

Two related changes are made in subdivision (d): the permissible

sanctions are broadened to include such orders "as are just"; and

the requirement that the failure to appear or respond be "wilful"

is eliminated. Although Rule 37(d) in terms provides for only three

sanctions, all rather severe, the courts have interpreted it as

permitting softer sanctions than those which it sets forth. E.g.,

Gill v. Stolow, 240 F.2d 669 (2d Cir. 1957); Saltzman v. Birrell,

156 F.Supp. 538 (S.D.N.Y. 1957); 2A Barron & Holtzoff, Federal

Practice and Procedure 554-557 (Wright ed. 1961). The rule is

changed to provide the greater flexibility as to sanctions which

the cases show is needed.

The resulting flexibility as to sanctions eliminates any need to

retain the requirement that the failure to appear or respond be

"wilful." The concept of "wilful failure" is at best subtle and

difficult, and the cases do not supply a bright line. Many courts

have imposed sanctions without referring to wilfullness. E.g.,

Milewski v. Schneider Transportation Co., 238 F.2d 397 (6th Cir.

1956); Dictograph Products, Inc. v. Kentworth Corp., 7 F.R.D. 543

(W.D.Ky. 1947). In addition, in view of the possibility of light

sanctions, even a negligent failure should come within Rule 37(d).

If default is caused by counsel's ignorance of Federal practice,

cf. Dunn. v. Pa. R.R., 96 F. Supp. 597 (N.D.Ohio 1951), or by his

preoccupation with another aspect of the case, cf. Maurer-Neuer,

Inc. v. United Packinghouse Workers, 26 F.R.D. 139 (D.Kans. 1960),

dismissal of the action and default judgment are not justified, but

the imposition of expenses and fees may well be. "Wilfullness"

continues to play a role, along with various other factors, in the

choice of sanctions. Thus, the scheme conforms to Rule 37(b) as

construed by the Supreme Court in Societe Internationale v. Rogers,

357 U.S. 197, 208 (1958).

A provision is added to make clear that a party may not properly

remain completely silent even when he regards a notice to take his

deposition or a set of interrogatories or requests to inspect as

improper and objectionable. If he desires not to appear or not to

respond, he must apply for a protective order. The cases are

divided on whether a protective order must be sought. Compare

Collins v. Wayland, 139 F.2d 677 (9th Cir. 1944), cert. den. 322

U.S. 744; Bourgeois v. El Paso Natural Gas Co., 20 F.R.D. 358

(S.D.N.Y. 1957); Loosley v. Stone, 15 F.R.D. 373 (S.D.Ill. 1954),

with Scarlatos v. Kulukundis, 21 F.R.D. 185 (S.D.N.Y. 1957); Ross

v. True Temper Corp., 11 F.R.D 307 (N.D.Ohio 1951). Compare also

Rosenberg, supra, 58 Col.L.Rev. 480, 496 (1958) with 2A Barron &

Holtzoff, Federal Practice and Procedure 530-531 (Wright ed. 1961).

The party from whom discovery is sought is afforded, through Rule

26(c), a fair and effective procedure whereby he can challenge the

request made. At the same time, the total non-compliance with which

Rule 37(d) is concerned may impose severe inconvenience or hardship

on the discovering party and substantially delay the discovery

process. Cf. 2B Barron & Holtzoff, Federal Practice and Procedure

306-307 (Wright ed. 1961) (response to a subpoena).

The failure of an officer or managing agent of a party to make

discovery as required by present Rule 37(d) is treated as the

failure of the party. The rule as revised provides similar

treatment for a director of a party. There is slight warrant for

the present distinction between officers and managing agents on the

one hand and directors on the other. Although the legal power over

a director to compel his making discovery may not be as great as

over officers or managing agents, Campbell v. General Motors Corp.,

13 F.R.D. 331 (S.D.N.Y. 1952), the practical differences are

negligible. That a director's interests are normally aligned with

those of his corporation is shown by the provisions of old Rule

26(d)(2), transferred to 32(a)(2) (deposition of director of party

may be used at trial by an adverse party for any purpose) and of

Rule 43(b) (director of party may be treated at trial as a hostile

witness on direct examination by any adverse party). Moreover, in

those rare instances when a corporation is unable through good

faith efforts to compel a director to make discovery, it is

unlikely that the court will impose sanctions. Cf. Societe

Internationale v. Rogers, 357 U.S. 197 (1958).

Subdivision (e). The change in the caption conforms to the

language of 28 U.S.C. Sec. 1783, as amended in 1964.

Subdivision (f). Until recently, costs of a civil action could be

awarded against the United States only when expressly provided by

Act of Congress, and such provision was rarely made. See

H.R.Rept.No. 1535, 89th Cong., 2d Sess., 2-3 (1966). To avoid any

conflict with this doctrine, Rule 37(f) has provided that expenses

and attorney's fees may not be imposed upon the United States under

Rule 37. See 2A Barron & Holtzoff, Federal Practice and Procedure

857 (Wright ed. 1961).

A major change in the law was made in 1966, 80 Stat. 308, 28

U.S.C. Sec. 2412 (1966), whereby a judgment for costs may

ordinarily be awarded to the prevailing party in any civil action

brought by or against the United States. Costs are not to include

the fees and expenses of attorneys. In light of this legislative

development, Rule 37(f) is amended to permit the award of expenses

and fees against the United States under Rule 37, but only to the

extent permitted by statute. The amendment brings Rule 37(f) into

line with present and future statutory provisions.

NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT

Subdivision (b)(2). New Rule 26(f) provides that if a discovery

conference is held, at its close the court shall enter an order

respecting the subsequent conduct of discovery. The amendment

provides that the sanctions available for violation of other court

orders respecting discovery are available for violation of the

discovery conference order.

Subdivision (e). Subdivision (e) is stricken. Title 28, U.S.C.

Sec. 1783 no longer refers to sanctions. The subdivision otherwise

duplicates Rule 45(e)(2).

Subdivision (g). New Rule 26(f) imposes a duty on parties to

participate in good faith in the framing of a discovery plan by

agreement upon the request of any party. This subdivision

authorizes the court to award to parties who participate in good

faith in an attempt to frame a discovery plan the expenses incurred

in the attempt if any party or his attorney fails to participate in

good faith and thereby causes additional expense.

Failure of United States to Participate in Good Faith in

Discovery. Rule 37 authorizes the court to direct that parties or

attorneys who fail to participate in good faith in the discovery

process pay the expenses, including attorney's fees, incurred by

other parties as a result of that failure. Since attorneys' fees

cannot ordinarily be awarded against the United States (28 U.S.C.

Sec. 2412), there is often no practical remedy for the misconduct

of its officers and attorneys. However, in the case of a government

attorney who fails to participate in good faith in discovery,

nothing prevents a court in an appropriate case from giving written

notification of that fact to the Attorney General of the United

States and other appropriate heads of offices or agencies thereof.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Subdivision (a). This subdivision is revised to reflect the

revision of Rule 26(a), requiring disclosure of matters without a

discovery request.

Pursuant to new subdivision (a)(2)(A), a party dissatisfied with

the disclosure made by an opposing party may under this rule move

for an order to compel disclosure. In providing for such a motion,

the revised rule parallels the provisions of the former rule

dealing with failures to answer particular interrogatories. Such a

motion may be needed when the information to be disclosed might be

helpful to the party seeking the disclosure but not to the party

required to make the disclosure. If the party required to make the

disclosure would need the material to support its own contentions,

the more effective enforcement of the disclosure requirement will

be to exclude the evidence not disclosed, as provided in

subdivision (c)(1) of this revised rule.

Language is included in the new paragraph and added to the

subparagraph (B) that requires litigants to seek to resolve

discovery disputes by informal means before filing a motion with

the court. This requirement is based on successful experience with

similar local rules of court promulgated pursuant to Rule 83.

The last sentence of paragraph (2) is moved into paragraph (4).

Under revised paragraph (3), evasive or incomplete disclosures

and responses to interrogatories and production requests are

treated as failures to disclose or respond. Interrogatories and

requests for production 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 under subdivision

(a).

Revised paragraph (4) is divided into three subparagraphs for

ease of reference, and in each the phrase "after opportunity for

hearing" is changed to "after affording an opportunity to be heard"

to make clear that the court can consider such questions on written

submissions as well as on oral hearings.

Subparagraph (A) is revised to cover the situation where

information that should have been produced without a motion to

compel is produced after the motion is filed but before it is

brought on for hearing. The rule also is revised to provide that a

party should not be awarded its expenses for filing a motion that

could have been avoided by conferring with opposing counsel.

Subparagraph (C) is revised to include the provision that

formerly was contained in subdivision (a)(2) and to include the

same requirement of an opportunity to be heard that is specified in

subparagraphs (A) and (B).

Subdivision (c). The revision provides a self-executing sanction

for failure to make a disclosure required by Rule 26(a), without

need for a motion under subdivision (a)(2)(A).

Paragraph (1) prevents a party from using as evidence any

witnesses or information that, without substantial justification,

has not been disclosed as required by Rules 26(a) and 26(e)(1).

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. As disclosure of evidence offered solely for

impeachment purposes is not required under those rules, this

preclusion sanction likewise does not apply to that evidence.

Limiting the automatic sanction to violations "without

substantial justification," coupled with the exception for

violations that are "harmless," is needed to avoid unduly harsh

penalties in a variety of situations: e.g., the inadvertent

omission from a Rule 26(a)(1)(A) disclosure of the name of a

potential witness known to all parties; the failure to list as a

trial witness a person so listed by another party; or the lack of

knowledge of a pro se litigant of the requirement to make

disclosures. In the latter situation, however, exclusion would be

proper if the requirement for disclosure had been called to the

litigant's attention by either the court or another party.

Preclusion of evidence is not an effective incentive to compel

disclosure of information that, being supportive of the position of

the opposing party, might advantageously be concealed by the

disclosing party. However, the rule provides the court with a wide

range of other sanctions - such as declaring specified facts to be

established, preventing contradictory evidence, or, like spoliation

of evidence, allowing the jury to be informed of the fact of

nondisclosure - that, though not self-executing, can be imposed

when found to be warranted after a hearing. The failure to identify

a witness or document in a disclosure statement would be admissible

under the Federal Rules of Evidence under the same principles that

allow a party's interrogatory answers to be offered against it.

Subdivision (d). This subdivision is revised to require that,

where a party fails to file any response to interrogatories or a

Rule 34 request, the discovering party should informally seek to

obtain such responses before filing a motion for sanctions.

The last sentence of this subdivision is revised to clarify that

it is the pendency of a motion for protective order that may be

urged as an excuse for a violation of subdivision (d). If a party's

motion has been denied, the party cannot argue that its subsequent

failure to comply would be justified. In this connection, it should

be noted that the filing of a motion under Rule 26(c) is not

self-executing - the relief authorized under that rule depends on

obtaining the court's order to that effect.

Subdivision (g). This subdivision is modified to conform to the

revision of Rule 26(f).

COMMITTEE NOTES ON RULES - 2000 AMENDMENT

Subdivision (c)(1). When this subdivision was added in 1993 to

direct exclusion of materials not disclosed as required, the duty

to supplement discovery responses pursuant to Rule 26(e)(2) was

omitted. In the face of this omission, courts may rely on inherent

power to sanction for failure to supplement as required by Rule

26(e)(2), see 8 Federal Practice & Procedure Sec. 2050 at 607-09,

but that is an uncertain and unregulated ground for imposing

sanctions. There is no obvious occasion for a Rule 37(a) motion in

connection with failure to supplement, and ordinarily only Rule

37(c)(1) exists as rule-based authority for sanctions if this

supplementation obligation is violated.

The amendment explicitly adds failure to comply with Rule

26(e)(2) as a ground for sanctions under Rule 37(c)(1), including

exclusion of withheld materials. The rule provides that this

sanction power only applies when the failure to supplement was

"without substantial justification." Even if the failure was not

substantially justified, a party should be allowed to use the

material that was not disclosed if the lack of earlier notice was

harmless.

"Shall" is replaced by "is" under the program to conform amended

rules to current style conventions when there is no ambiguity.

GAP Report. The Advisory Committee recommends that the published

amendment proposal be modified to state that the exclusion sanction

can apply to failure "to amend a prior response to discovery as

required by Rule 26(e)(2)." In addition, one minor phrasing change

is recommended for the Committee Note.

AMENDMENT BY PUBLIC LAW

1980 - Subd. (f). Pub. L. 96-481 repealed subd. (f) which

provided that except to the extent permitted by statute, expenses

and fees may not be awarded against the United States under this

rule.

EFFECTIVE DATE OF 1980 AMENDMENT

Amendment by Pub. L. 96-481 effective Oct. 1, 1981, and

applicable to adversary adjudication defined in section

504(b)(1)(C) of Title 5, and to civil actions and adversary

adjudications described in section 2412 of Title 28, Judiciary and

Judicial Procedure, which are pending on, or commenced on or after

Oct. 1, 1981, see section 208 of Pub. L. 96-481, set out as an

Effective Date note under section 504 of Title 5, Government

Organization and Employees.

-End-

-CITE-

28 USC APPENDIX VI. TRIALS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

VI. TRIALS

-End-

-CITE-

28 USC APPENDIX Rule 38 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

Rule 38. Jury Trial of Right

-STATUTE-

(a) Right Preserved. The right of trial by jury as declared by

the Seventh Amendment to the Constitution or as given by a statute

of the United States shall be preserved to the parties inviolate.

(b) Demand. Any party may demand a trial by jury of any issue

triable of right by a jury by (1) serving upon the other parties a

demand therefor in writing at any time after the commencement of

the action and not later than 10 days after the service of the last

pleading directed to such issue, and (2) filing the demand as

required by Rule 5(d). Such demand may be indorsed upon a pleading

of the party.

(c) Same: Specification of Issues. In the demand a party may

specify the issues which the party wishes so tried; otherwise the

party shall be deemed to have demanded trial by jury for all the

issues so triable. If the party has demanded trial by jury for only

some of the issues, any other party within 10 days after service of

the demand or such lesser time as the court may order, may serve a

demand for trial by jury of any other or all of the issues of fact

in the action.

(d) Waiver. The failure of a party to serve and file a demand as

required by this rule constitutes a waiver by the party of trial by

jury. A demand for trial by jury made as herein provided may not be

withdrawn without the consent of the parties.

(e) Admiralty and Maritime Claims. These rules shall not be

construed to create a right to trial by jury of the issues in an

admiralty or maritime claim within the meaning of Rule 9(h).

-SOURCE-

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.

Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

This rule provides for the preservation of the constitutional

right of trial by jury as directed in the enabling act (act of June

19, 1934, 48 Stat. 1064, U.S.C., Title 28, Sec. 723c [see 2072]),

and it and the next rule make definite provision for claim and

waiver of jury trial, following the method used in many American

states and in England and the British Dominions. Thus the claim

must be made at once on initial pleading or appearance under

Ill.Rev.Stat. (1937) ch. 110, Sec. 188; 6 Tenn.Code Ann. (Williams,

1934) Sec. 8734; compare Wyo.Rev.Stat.Ann. (1931) Sec. 89-1320

(with answer or reply); within 10 days after the pleadings are

completed or the case is at issue under 2 Conn.Gen.Stat. (1930)

Sec. 5624; Hawaii Rev.Laws (1935) Sec. 4101; 2 Mass.Gen.Laws

(Ter.Ed. 1932) ch. 231, Sec. 60; 3 Mich.Comp.Laws (1929) Sec.

14263; Mich.Court Rules Ann. (Searl, 1933) Rule 33 (15 days);

England (until 1933) O. 36, r.r. 2 and 6; and Ontario Jud.Act

(1927) Sec. 57(1) (4 days, or, where prior notice of trial, 2 days

from such notice); or at a definite time varying under different

codes, from 10 days before notice of trial to 10 days after notice,

or, as in many, when the case is called for assignment,

Ariz.Rev.Code Ann. (Struckmeyer, 1928) Sec. 3802; Calif.Code

Civ.Proc. (Deering, 1937) Sec. 631, par. 4; Iowa Code (1935) Sec.

10724; 4 Nev.Comp.Laws (Hillyer, 1929) Sec. 8782; N.M.Stat.Ann.

(Courtright, 1929) Sec. 105-814; N.Y.C.P.A. (1937) Sec. 426,

subdivision 5 (applying to New York, Bronx, Richmond, Kings, and

Queens Counties); R.I.Pub.Laws (1929), ch. 1327, amending

R.I.Gen.Laws (1923) ch. 337, Sec. 6; Utah Rev.Stat.Ann. (1933) Sec.

104-23-6; 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 316; England

(4 days after notice of trial), Administration of Justice Act

(1933) Sec. 6 and amended rule under the Judicature Act (The Annual

Practice, 1937), O. 36, r. 1; Australia High Court Procedure Act

(1921) Sec. 12, Rules, O. 33, r. 2; Alberta Rules of Ct. (1914)

172, 183, 184; British Columbia Sup.Ct.Rules (1925) O. 36, r.r. 2,

6, 11, and 16; New Brunswick Jud. Act (1927) O. 36, r.r. 2 and 5.

See James, Trial by Jury and the New Federal Rules of Procedure

(1936), 45 Yale L.J. 1022.

Rule 81(c) provides for claim for jury trial in removed actions.

The right to trial by jury as declared in U.S.C., Title 28, Sec.

770 [now 1873] (Trial of issues of fact; by jury; exceptions), and

similar statutes, is unaffected by this rule. This rule modifies

U.S.C., Title 28, [former] Sec. 773 (Trial of issues of fact; by

court).

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

See Note to Rule 9(h), supra.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Language requiring the filing of a jury demand as provided in

subdivision (d) is added to subdivision (b) to eliminate an

apparent ambiguity between the two subdivisions. For proper

scheduling of cases, it is important that jury demands not only be

served on other parties, but also be filed with the court.

-End-

-CITE-

28 USC APPENDIX Rule 39 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

Rule 39. Trial by Jury or by the Court

-STATUTE-

(a) By Jury. When trial by jury has been demanded as provided in

Rule 38, the action shall be designated upon the docket as a jury

action. The trial of all issues so demanded shall be by jury,

unless (1) the parties or their attorneys of record, by written

stipulation filed with the court or by an oral stipulation made in

open court and entered in the record, consent to trial by the court

sitting without a jury or (2) the court upon motion or of its own

initiative finds that a right of trial by jury of some or all of

those issues does not exist under the Constitution or statutes of

the United States.

(b) By the Court. Issues not demanded for trial by jury as

provided in Rule 38 shall be tried by the court; but,

notwithstanding the failure of a party to demand a jury in an

action in which such a demand might have been made of right, the

court in its discretion upon motion may order a trial by a jury of

any or all issues.

(c) Advisory Jury and Trial by Consent. In all actions not

triable of right by a jury the court upon motion or of its own

initiative may try any issue with an advisory jury or, except in

actions against the United States when a statute of the United

States provides for trial without a jury, the court, with the

consent of both parties, may order a trial with a jury whose

verdict has the same effect as if trial by jury had been a matter

of right.

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

The provisions for express waiver of jury trial found in U.S.C.,

Title 28, [former] Sec. 773 (Trial of issues of fact; by court) are

incorporated in this rule. See rule 38, however, which extends the

provisions for waiver of jury. U.S.C., Title 28, [former] Sec. 772

(Trial of issues of fact; in equity in patent causes) is unaffected

by this rule. When certain of the issues are to be tried by jury

and others by the court, the court may determine the sequence in

which such issues shall be tried. See Liberty Oil Co. v. Condon

Nat. Bank, 260 U.S. 235 (1922).

A discretionary power in the courts to send issues of fact to the

jury is common in state procedure. Compare Calif.Code Civ.Proc.

(Deering, 1937) Sec. 592; 1 Colo.Stat.Ann. (1935) Code Civ.Proc.,

ch. 12, Sec. 191; Conn.Gen.Stat. (1930) Sec. 5625; 2 Minn.Stat.

(Mason, 1927) Sec. 9288; 4 Mont.Rev.Codes Ann. (1935) Sec. 9327;

N.Y.C.P.A. (1937) Sec. 430; 2 Ohio Gen.Code Ann. (Page, 1926) Sec.

11380; 1 Okla.Stat.Ann. (Harlow, 1931) Sec. 351; Utah Rev.Stat.Ann.

(1933) Sec. 104-23-5; 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec.

315; Wis.Stat. (1935) Sec. 270.07. See [former] Equity Rule 23

(Matters Ordinarily Determinable at Law When Arising in Suit in

Equity to be Disposed of Therein) and U.S.C., Title 28, [former]

Sec. 772 (Trial of issues of fact; in equity in patent causes);

Colleton Merc. Mfg. Co. v. Savannah River Lumber Co., 280 Fed. 358

(C.C.A.4th, 1922); Fed. Res. Bk. of San Francisco v. Idaho Grimm

Alfalfa Seed Growers' Ass'n, 8 F.(2d) 922 (C.C.A.9th, 1925), cert.

den. 270 U.S. 646 (1926); Watt v. Starke, 101 U.S. 247, 25 L.Ed.

826 (1879).

-End-

-CITE-

28 USC APPENDIX Rule 40 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

Rule 40. Assignment of Cases for Trial

-STATUTE-

The district courts shall provide by rule for the placing of

actions upon the trial calendar (1) without request of the parties

or (2) upon request of a party and notice to the other parties or

(3) in such other manner as the courts deem expedient. Precedence

shall be given to actions entitled thereto by any statute of the

United States.

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

U.S.C., Title 28, [former] Sec. 769 (Notice of case for trial) is

modified. See [former] Equity Rule 56 (On Expiration of Time for

Depositions, Case Goes on Trial Calendar). See also [former] Equity

Rule 57 (Continuances).

For examples of statutes giving precedence, see U.S.C., Title 28,

Sec. 47 [now 1253, 2101, 2325] (Injunctions as to orders of

Interstate Commerce Commission); Sec. 380 [now 1253, 2101, 2284]

(Injunctions alleged unconstitutionality of state statutes); Sec.

380a [now 1253, 2101, 2284] (Same; Constitutionality of federal

statute); [former] Sec. 768 (Priority of cases where a state is

party); Title 15, Sec. 28 (Antitrust laws; suits against monopolies

expedited); Title 22, Sec. 240 (Petition for restoration of

property seized as munitions of war, etc.); and Title 49, [former]

Sec. 44 (Proceedings in equity under interstate commerce laws;

expedition of suits).

-End-

-CITE-

28 USC APPENDIX Rule 41 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

Rule 41. Dismissal of Actions

-STATUTE-

(a) Voluntary Dismissal: Effect Thereof.

(1) By Plaintiff; by Stipulation. Subject to the provisions of

Rule 23(e), of Rule 66, and of any statute of the United States,

an action may be dismissed by the plaintiff without order of

court (i) by filing a notice of dismissal at any time before

service by the adverse party of an answer or of a motion for

summary judgment, whichever first occurs, or (ii) by filing a

stipulation of dismissal signed by all parties who have appeared

in the action. Unless otherwise stated in the notice of dismissal

or stipulation, the dismissal is without prejudice, except that a

notice of dismissal operates as an adjudication upon the merits

when filed by a plaintiff who has once dismissed in any court of

the United States or of any state an action based on or including

the same claim.

(2) By Order of Court. Except as provided in paragraph (1) of

this subdivision of this rule, an action shall not be dismissed

at the plaintiff's instance save upon order of the court and upon

such terms and conditions as the court deems proper. If a

counterclaim has been pleaded by a defendant prior to the service

upon the defendant of the plaintiff's motion to dismiss, the

action shall not be dismissed against the defendant's objection

unless the counterclaim can remain pending for independent

adjudication by the court. Unless otherwise specified in the

order, a dismissal under this paragraph is without prejudice.

(b) Involuntary Dismissal: Effect Thereof. For failure of the

plaintiff to prosecute or to comply with these rules or any order

of court, a defendant may move for dismissal of an action or of any

claim against the defendant. Unless the court in its order for

dismissal otherwise specifies, a dismissal under this subdivision

and any dismissal not provided for in this rule, other than a

dismissal for lack of jurisdiction, for improper venue, or for

failure to join a party under Rule 19, operates as an adjudication

upon the merits.

(c) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim.

The provisions of this rule apply to the dismissal of any

counterclaim, cross-claim, or third-party claim. A voluntary

dismissal by the claimant alone pursuant to paragraph (1) of

subdivision (a) of this rule shall be made before a responsive

pleading is served or, if there is none, before the introduction of

evidence at the trial or hearing.

(d) Costs of Previously-Dismissed Action. If a plaintiff who has

once dismissed an action in any court commences an action based

upon or including the same claim against the same defendant, the

court may make such order for the payment of costs of the action

previously dismissed as it may deem proper and may stay the

proceedings in the action until the plaintiff has complied with the

order.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.

July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff.

July 1, 1968; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff.

Dec. 1, 1991.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). Compare Ill.Rev.Stat. (1937) ch. 110,

Sec. 176, and English Rules Under the Judicature Act (The Annual

Practice, 1937) O. 26.

Provisions regarding dismissal in such statutes as U.S.C., Title

8, Sec. 164 [see 1329] (Jurisdiction of district courts in

immigration cases) and U.S.C., Title 31, Sec. 232 [now 3730]

(Liability of persons making false claims against United States;

suits) are preserved by paragraph (1).

Note to Subdivision (b). This provides for the equivalent of a

nonsuit on motion by the defendant after the completion of the

presentation of evidence by the plaintiff. Also, for actions tried

without a jury, it provides the equivalent of the directed verdict

practice for jury actions which is regulated by Rule 50.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

Subdivision (a). The insertion of the reference to Rule 66

correlates Rule 41(a)(1) with the express provisions concerning

dismissal set forth in amended Rule 66 on receivers.

The change in Rule 41(a)(1)(i) gives the service of a motion for

summary judgment by the adverse party the same effect in preventing

unlimited dismissal as was originally given only to the service of

an answer. The omission of reference to a motion for summary

judgment in the original rule was subject to criticism. 3 Moore's

Federal Practice (1938) 3037-3038, n. 12. A motion for summary

judgment may be forthcoming prior to answer, and if well taken will

eliminate the necessity for an answer. Since such a motion may

require even more research and preparation than the answer itself,

there is good reason why the service of the motion, like that of

the answer, should prevent a voluntary dismissal by the adversary

without court approval.

The word "generally" has been stricken from Rule 41(a)(1)(ii) in

order to avoid confusion and to conform with the elimination of the

necessity for special appearances by original Rule 12(b).

Subdivision (b). In some cases tried without a jury, where at the

close of plaintiff's evidence the defendant moves for dismissal

under Rule 41(b) on the ground that plaintiff's evidence is

insufficient for recovery, the plaintiff's own evidence may be

conflicting or present questions of credibility. In ruling on the

defendant's motion, questions arise as to the function of the judge

in evaluating the testimony and whether findings should be made if

the motion is sustained. Three circuits hold that as the judge is

the trier of the facts in such a situation his function is not the

same as on a motion to direct a verdict, where the jury is the

trier of the facts, and that the judge in deciding such a motion in

a non-jury case may pass on conflicts of evidence and credibility,

and if he performs that function of evaluating the testimony and

grants the motion on the merits, findings are required. Young v.

United States (C.C.A.9th, 1940) 111 F.(2d) 823; Gary Theatre Co. v.

Columbia Pictures Corporation (C.C.A.7th, 1941) 120 F.(2d) 891;

Bach v. Friden Calculating Machine Co., Inc. (C.C.A.6th, 1945) 148

F.(2d) 407. Cf. Mateas v. Fred Harvey, a Corporation (C.C.A.9th,

1945) 146 F.(2d) 989. The Third Circuit has held that on such a

motion the function of the court is the same as on a motion to

direct in a jury case, and that the court should only decide

whether there is evidence which would support a judgment for the

plaintiff, and, therefore, findings are not required by Rule 52.

Federal Deposit Insurance Corp. v. Mason (C.C.A.3d, 1940) 115

F.(2d) 548; Schad v. Twentieth Century-Fox Film Corp. (C.C.A.3d,

1943) 136 F.(2d) 991. The added sentence in Rule 41(b) incorporates

the view of the Sixth, Seventh and Ninth Circuits. See also 3

Moore's Federal Practice (1938) Cum. Supplement Sec. 41.03, under

"Page 3045"; Commentary, The Motion to Dismiss in Non-Jury Cases

(1946) 9 Fed.Rules Serv., Comm.Pg. 41b.14.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

Under the present text of the second sentence of this

subdivision, the motion for dismissal at the close of the

plaintiff's evidence may be made in a case tried to a jury as well

as in a case tried without a jury. But, when made in a jury-tried

case, this motion overlaps the motion for a directed verdict under

Rule 50(a), which is also available in the same situation. It has

been held that the standard to be applied in deciding the Rule

41(b) motion at the close of the plaintiff's evidence in a

jury-tried case is the same as that used upon a motion for a

directed verdict made at the same stage; and, just as the court

need not make findings pursuant to Rule 52(a) when it directs a

verdict, so in a jury-tried case it may omit these findings in

granting the Rule 41(b) motion. See generally O'Brien v.

Westinghouse Electric Corp., 293 F.2d 1, 5-10 (3d Cir. 1961).

As indicated by the discussion in the O'Brien case, the overlap

has caused confusion. Accordingly, the second and third sentences

of Rule 41(b) are amended to provide that the motion for dismissal

at the close of the plaintiff's evidence shall apply only to

nonjury cases (including cases tried with an advisory jury).

Hereafter the correct motion in jury-tried cases will be the motion

for a directed verdict. This involves no change of substance. It

should be noted that the court upon a motion for a directed verdict

may in appropriate circumstances deny that motion and grant instead

a new trial, or a voluntary dismissal without prejudice under Rule

41(a)(2). See 6 Moore's Federal Practice Sec. 59.08[5] (2d ed.

1954); cf. Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212,

217, 67 S.Ct. 752, 91 L.Ed. 849 (1947).

The first sentence of Rule 41(b), providing for dismissal for

failure to prosecute or to comply with the Rules or any order of

court, and the general provisions of the last sentence remain

applicable in jury as well as nonjury cases.

The amendment of the last sentence of Rule 41(b) indicates that a

dismissal for lack of an indispensable party does not operate as an

adjudication on the merits. Such a dismissal does not bar a new

action, for it is based merely "on a plaintiff's failure to comply

with a precondition requisite to the Court's going forward to

determine the merits of his substantive claim." See Costello v.

United States, 365 U.S. 265, 284-288, 81 S.Ct. 534, 5 L.Ed.2d 551 &

n. 5 (1961); Mallow v. Hinde, 12 Wheat. (25 U.S.) 193, 6 L.Ed. 599

(1827); Clark, Code Pleading 602 (2d ed. 1947); Restatement of

Judgments Sec. 49, comm. a, b (1942). This amendment corrects an

omission from the rule and is consistent with an earlier amendment,

effective in 1948, adding "the defense of failure to join an

indispensable party" to clause (1) of Rule 12(h).

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

The terminology is changed to accord with the amendment of Rule

19. See that amended rule and the Advisory Committee's Note

thereto.

NOTES OF ADVISORY COMMITTEE ON RULES - 1968 AMENDMENT

The amendment corrects an inadvertent error in the reference to

amended Rule 23.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

Language is deleted that authorized the use of this rule as a

means of terminating a non-jury action on the merits when the

plaintiff has failed to carry a burden of proof in presenting the

plaintiff's case. The device is replaced by the new provisions of

Rule 52(c), which authorize entry of judgment against the defendant

as well as the plaintiff, and earlier than the close of the case of

the party against whom judgment is rendered. A motion to dismiss

under Rule 41 on the ground that a plaintiff's evidence is legally

insufficient should now be treated as a motion for judgment on

partial findings as provided in Rule 52(c).

-End-

-CITE-

28 USC APPENDIX Rule 42 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

Rule 42. Consolidation; Separate Trials

-STATUTE-

(a) Consolidation. When actions involving a common question of

law or fact are pending before the court, it may order a joint

hearing or trial of any or all the matters in issue in the actions;

it may order all the actions consolidated; and it may make such

orders concerning proceedings therein as may tend to avoid

unnecessary costs or delay.

(b) Separate Trials. The court, in furtherance of convenience or

to avoid prejudice, or when separate trials will be conducive to

expedition and economy, may order a separate trial of any claim,

cross-claim, counterclaim, or third-party claim, or of any separate

issue or of any number of claims, cross-claims, counterclaims,

third-party claims, or issues, always preserving inviolate the

right of trial by jury as declared by the Seventh Amendment to the

Constitution or as given by a statute of the United States.

-SOURCE-

(As amended Feb. 28, 1966, eff. July 1, 1966.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Subdivision (a) is based upon U.S.C., Title 28, [former] Sec. 734

(Orders to save costs; consolidation of causes of like nature) but

insofar as the statute differs from this rule, it is modified.

For comparable statutes dealing with consolidation see

Ark.Dig.Stat. (Crawford & Moses, 1921) Sec. 1081; Calif.Code

Civ.Proc. (Deering, 1937) Sec. 1048; N.M.Stat.Ann. (Courtright,

1929) Sec. 105-828; N.Y.C.P.A. (1937) Secs. 96, 96a, and 97;

American Judicature Society, Bulletin XIV (1919) Art.26.

For severance or separate trials see Calif.Code Civ.Proc.

(Deering, 1937) Sec. 1048; N.Y.C.P.A. (1937) Sec. 96; American

Judicature Society, Bulletin XIV (1919) Art. 3, Sec. 2 and Art. 10,

Sec. 10. See also the third sentence of Equity Rule 29 (Defenses -

How Presented) providing for discretionary separate hearing and

disposition before trial of pleas in bar or abatement, and see also

Rule 12(d) of these rules for preliminary hearings of defenses and

objections.

For the entry of separate judgments, see Rule 54(b) (Judgment at

Various Stages).

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

In certain suits in admiralty separation for trial of the issues

of liability and damages (or of the extent of liability other than

damages, such as salvage and general average) has been conducive to

expedition and economy, especially because of the statutory right

to interlocutory appeal in admiralty cases (which is of course

preserved by these Rules). While separation of issues for trial is

not to be routinely ordered, it is important that it be encouraged

where experience has demonstrated its worth. Cf. Weinstein, Routine

Bifurcation of Negligence Trials, 14 Vand.L.Rev. 831 (1961).

In cases (including some cases within the admiralty and maritime

jurisdiction) in which the parties have a constitutional or

statutory right of trial by jury, separation of issues may give

rise to problems. See e.g., United Air Lines, Inc. v. Wiener, 286

F.2d 302 (9th Cir. 1961). Accordingly, the proposed change in Rule

42 reiterates the mandate of Rule 38 respecting preservation of the

right to jury trial.

-End-

-CITE-

28 USC APPENDIX Rule 43 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

Rule 43. Taking of Testimony

-STATUTE-

(a) Form. In every trial, the testimony of witnesses shall be

taken in open court, unless a federal law, these rules, the Federal

Rules of Evidence, or other rules adopted by the Supreme Court

provide otherwise. The court may, for good cause shown in

compelling circumstances and upon appropriate safeguards, permit

presentation of testimony in open court by contemporaneous

transmission from a different location.

[(b) Scope of Examination and Cross-Examination.] (Abrogated Nov.

20, 1972, and Dec. 18, 1972, eff. July 1, 1975)

[(c) Record of Excluded Evidence.] (Abrogated Nov. 20, 1972, and

Dec. 18, 1972, eff. July 1, 1975)

(d) Affirmation in Lieu of Oath. Whenever under these rules an

oath is required to be taken, a solemn affirmation may be accepted

in lieu thereof.

(e) Evidence on Motions. When a motion is based on facts not

appearing of record the court may hear the matter on affidavits

presented by the respective parties, but the court may direct that

the matter be heard wholly or partly on oral testimony or

depositions.

(f) Interpreters. The court may appoint an interpreter of its own

selection and may fix the interpreter's reasonable compensation.

The compensation shall be paid out of funds provided by law or by

one or more of the parties as the court may direct, and may be

taxed ultimately as costs, in the discretion of the court.

-SOURCE-

(As amended Feb. 28, 1966, eff. July 1, 1966; Nov. 20, 1972, and

Dec. 18, 1972, eff. July 1, 1975; Mar. 2, 1987, eff. Aug. 1, 1987;

Apr. 23, 1996, eff. Dec. 1, 1996.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). The first sentence is a restatement of

the substance of U.S.C., Title 28, [former] Sec. 635 (Proof in

common-law actions), Sec. 637 [see 2072, 2073] (Proof in equity and

admiralty), and [former] Equity Rule 46 (Trial - Testimony Usually

Taken in Open Court - Rulings on Objections to Evidence). This rule

abolishes in patent and trade-mark actions, the practice under

[former] Equity Rule 48 of setting forth in affidavits the

testimony in chief of expert witnesses whose testimony is directed

to matters of opinion. The second and third sentences on

admissibility of evidence and Subdivision (b) on contradiction and

cross-examination modify U.S.C., Title 28, Sec. 725 [now 1652]

(Laws of states as rules of decision) insofar as that statute has

been construed to prescribe conformity to state rules of evidence.

Compare Callihan and Ferguson, Evidence and the New Federal Rules

of Civil Procedure, 45 Yale L.J. 622 (1936), and Same: 2, 47 Yale

L.J. 195 (1937). The last sentence modifies to the extent indicated

U.S.C., Title 28, [former] Sec. 631 (Competency of witnesses

governed by State laws).

Note to Subdivision (b). See 4 Wigmore on Evidence (2d ed., 1923)

Sec. 1885 et seq.

Note to Subdivision (c). See [former] Equity Rule 46 (Trial -

Testimony Usually Taken in Open Court - Rulings on Objections to

Evidence). With the last sentence compare Dowagiac v. Lochren, 143

Fed. 211 (C.C.A.8th, 1906). See also Blease v. Garlington, 92 U.S.

1 (1876); Nelson v. United States, 201 U.S. 92. 114 (1906); Unkle

v. Wills, 281 Fed. 29 (C.C.A.8th 1922).

See Rule 61 for harmless error in either the admission or

exclusion of evidence.

Note to Subdivision (d). See [former] Equity Rule 78 (Affirmation

in Lieu of Oath) and U.S.C., Title 1, Sec. 1 (Words importing

singular number, masculine gender, etc.; extended application),

providing for affirmation in lieu of oath.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 SUPPLEMENTARY NOTE

REGARDING RULES 43 AND 44

These rules have been criticized and suggested improvements

offered by commentators. 1 Wigmore on Evidence (3d ed. 1940)

200-204; Green, The Admissibility of Evidence Under the Federal

Rules (1941) 55 Harv.L.Rev. 197. Cases indicate, however, that the

rule is working better than these commentators had expected.

Boerner v. United States (C.C.A.2d, 1941) 117 F.(2d) 387, cert.

den. (1941) 313 U.S. 587; Mosson v. Liberty Fast Freight Co.

(C.C.A.2d, 1942) 124 F.(2d) 448; Hartford Accident & Indemnity Co.

v. Olivier (C.C.A.5th, 1941) 123 F.(2d) 709; Anzano v. Metropolitan

Life Ins. Co. of New York (C.C.A.3d, 1941) 118 F.(2d) 430; Franzen

v. E. I. DuPont De Nemours & Co. (C.C.A.3d, 1944) 146 F.(2d) 837;

Fakouri v. Cadais (C.C.A.5th, 1945) 147 F.(2d) 667; In re C. & P.

Co. (S.D.Cal. 1945) 63 F.Supp. 400, 408. But cf. United States v.

Aluminum Co. of America (S.D.N.Y. 1938) 1 Fed.Rules Serv. 43a.3,

Case 1; Note (1946) 46 Col.L.Rev. 267. While consideration of a

comprehensive and detailed set of rules of evidence seems very

desirable, it has not been feasible for the Committee so far to

undertake this important task. Such consideration should include

the adaptability to federal practice of all or parts of the

proposed Code of Evidence of the American Law Institute. See

Armstrong, Proposed Amendments to Federal Rules of Civil Procedure,

4 F.R.D. 124, 137-138.

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

This new subdivision authorizes the court to appoint interpreters

(including interpreters for the deaf), to provide for their

compensation, and to tax the compensation as costs. Compare

proposed subdivision (b) of Rule 28 of the Federal Rules of

Criminal Procedure.

NOTES OF ADVISORY COMMITTEE ON RULES - 1972 AMENDMENT

Rule 43, entitled Evidence, has heretofore served as the basic

rule of evidence for civil cases in federal courts. Its very

general provisions are superseded by the detailed provisions of the

new Rules of Evidence. The original title and many of the

provisions of the rule are, therefore, no longer appropriate.

Subdivision (a). The provision for taking testimony in open court

is not duplicated in the Rules of Evidence and is retained. Those

dealing with admissibility of evidence and competency of witnesses,

however, are no longer needed or appropriate since those topics are

covered at large in the Rules of Evidence. They are accordingly

deleted. The language is broadened, however, to take account of

acts of Congress dealing with the taking of testimony, as well as

of the Rules of Evidence and any other rules adopted by the Supreme

Court.

Subdivision (b). The subdivision is no longer needed or

appropriate since the matters with which it deals are treated in

the Rules of Evidence. The use of leading questions, both generally

and in the interrogation of an adverse party or witness identified

with him, is the subject of Evidence Rule 611(c). Who may impeach

is treated in Evidence Rule 601 and scope of cross-examination is

covered in Evidence Rule 611(b). The subdivision is accordingly

deleted.

Subdivision (c). Offers of proof and making a record of excluded

evidence are treated in Evidence Rule 103. The subdivision is no

longer needed or appropriate and is deleted.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1996 AMENDMENT

Rule 43(a) is revised to conform to the style conventions adopted

for simplifying the present Civil Rules. The only intended changes

of meaning are described below.

The requirement that testimony be taken "orally" is deleted. The

deletion makes it clear that testimony of a witness may be given in

open court by other means if the witness is not able to communicate

orally. Writing or sign language are common examples. The

development of advanced technology may enable testimony to be given

by other means. A witness unable to sign or write by hand may be

able to communicate through a computer or similar device.

Contemporaneous transmission of testimony from a different

location is permitted only on showing good cause in compelling

circumstances. The importance of presenting live testimony in court

cannot be forgotten. The very ceremony of trial and the presence of

the factfinder may exert a powerful force for truthtelling. The

opportunity to judge the demeanor of a witness face-to-face is

accorded great value in our tradition. Transmission cannot be

justified merely by showing that it is inconvenient for the witness

to attend the trial.

The most persuasive showings of good cause and compelling

circumstances are likely to arise when a witness is unable to

attend trial for unexpected reasons, such as accident or illness,

but remains able to testify from a different place. Contemporaneous

transmission may be better than an attempt to reschedule the trial,

particularly if there is a risk that other - and perhaps more

important - witnesses might not be available at a later time.

Other possible justifications for remote transmission must be

approached cautiously. Ordinarily depositions, including video

depositions, provide a superior means of securing the testimony of

a witness who is beyond the reach of a trial subpoena, or of

resolving difficulties in scheduling a trial that can be attended

by all witnesses. Deposition procedures ensure the opportunity of

all parties to be represented while the witness is testifying. An

unforeseen need for the testimony of a remote witness that arises

during trial, however, may establish good cause and compelling

circumstances. Justification is particularly likely if the need

arises from the interjection of new issues during trial or from the

unexpected inability to present testimony as planned from a

different witness.

Good cause and compelling circumstances may be established with

relative ease if all parties agree that testimony should be

presented by transmission. The court is not bound by a stipulation,

however, and can insist on live testimony. Rejection of the

parties' agreement will be influenced, among other factors, by the

apparent importance of the testimony in the full context of the

trial.

A party who could reasonably foresee the circumstances offered to

justify transmission of testimony will have special difficulty in

showing good cause and the compelling nature of the circumstances.

Notice of a desire to transmit testimony from a different location

should be given as soon as the reasons are known, to enable other

parties to arrange a deposition, or to secure an advance ruling on

transmission so as to know whether to prepare to be present with

the witness while testifying.

No attempt is made to specify the means of transmission that may

be used. Audio transmission without video images may be sufficient

in some circumstances, particularly as to less important testimony.

Video transmission ordinarily should be preferred when the cost is

reasonable in relation to the matters in dispute, the means of the

parties, and the circumstances that justify transmission.

Transmission that merely produces the equivalent of a written

statement ordinarily should not be used.

Safeguards must be adopted that ensure accurate identification of

the witness and that protect against influence by persons present

with the witness. Accurate transmission likewise must be assured.

Other safeguards should be employed to ensure that advance notice

is given to all parties of foreseeable circumstances that may lead

the proponent to offer testimony by transmission. Advance notice is

important to protect the opportunity to argue for attendance of the

witness at trial. Advance notice also ensures an opportunity to

depose the witness, perhaps by video record, as a means of

supplementing transmitted testimony.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Evidence, referred to in subd. (a), are set

out in this Appendix.

-MISC2-

EFFECTIVE DATE OF AMENDMENTS PROPOSED NOVEMBER 20, 1972, AND

DECEMBER 18, 1972

Amendments of this rule embraced by orders entered by the Supreme

Court of the United States on November 20, 1972, and December 18,

1972, effective on the 180th day beginning after January 2, 1975,

see section 3 of Pub. L. 93-595, Jan. 2, 1975, 88 Stat. 1959, set

out as a note under section 2074 of this title.

-End-

-CITE-

28 USC APPENDIX Rule 44 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

Rule 44. Proof of Official Record

-STATUTE-

(a) Authentication.

(1) Domestic. An official record kept within the United States,

or any state, district, or commonwealth, or within a territory

subject to the administrative or judicial jurisdiction of the

United States, or an entry therein, when admissible for any

purpose, may be evidenced by an official publication thereof or

by a copy attested by the officer having the legal custody of the

record, or by the officer's deputy, and accompanied by a

certificate that such officer has the custody. The certificate

may be made by a judge of a court of record of the district or

political subdivision in which the record is kept, authenticated

by the seal of the court, or may be made by any public officer

having a seal of office and having official duties in the

district or political subdivision in which the record is kept,

authenticated by the seal of the officer's office.

(2) Foreign. A foreign official record, or an entry therein,

when admissible for any purpose, may be evidenced by an official

publication thereof; or a copy thereof, attested by a person

authorized to make the attestation, and accompanied by a final

certification as to the genuineness of the signature and official

position (i) of the attesting person, or (ii) of any foreign

official whose certificate of genuineness of signature and

official position relates to the attestation or is in a chain of

certificates of genuineness of signature and official position

relating to the attestation. A final certification may be made by

a secretary of embassy or legation, consul general, vice consul,

or consular agent of the United States, or a diplomatic or

consular official of the foreign country assigned or accredited

to the United States. If reasonable opportunity has been given to

all parties to investigate the authenticity and accuracy of the

documents, the court may, for good cause shown, (i) admit an

attested copy without final certification or (ii) permit the

foreign official record to be evidenced by an attested summary

with or without a final certification. The final certification is

unnecessary if the record and the attestation are certified as

provided in a treaty or convention to which the United States and

the foreign country in which the official record is located are

parties.

(b) Lack of Record. A written statement that after diligent

search no record or entry of a specified tenor is found to exist in

the records designated by the statement, authenticated as provided

in subdivision (a)(1) of this rule in the case of a domestic

record, or complying with the requirements of subdivision (a)(2) of

this rule for a summary in the case of a foreign record, is

admissible as evidence that the records contain no such record or

entry.

(c) Other Proof. This rule does not prevent the proof of official

records or of entry or lack of entry therein by any other method

authorized by law.

-SOURCE-

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.

Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

This rule provides a simple and uniform method of proving public

records, and entry or lack of entry therein, in all cases including

those specifically provided for by statutes of the United States.

Such statutes are not superseded, however, and proof may also be

made according to their provisions whenever they differ from this

rule. Some of those statutes are:

U.S.C., Title 28:

Sec. 661 [now 1733] (Copies of department or corporation records

and papers; admissibility; seal)

Sec. 662 [now 1733] (Same; in office of General Counsel of the

Treasury)

Sec. 663 [now 1733] (Instruments and papers of Comptroller of

Currency; admissibility)

Sec. 664 [now 1733] (Organization certificates of national banks;

admissibility)

Sec. 665 [now 1733] (Transcripts from books of Treasury in suits

against delinquents; admissibility)

Sec. 666 [now 1733] (Same; certificate by Secretary or Assistant

Secretary)

Sec. 670 [now 1743] (Admissibility of copies of statements of

demands by Post Office Department)

Sec. 671 [now 1733] (Admissibility of copies of post office

records and statement of accounts)

Sec. 672 [former] (Admissibility of copies of records in General

Land Office)

Sec. 673 [now 1744] (Admissibility of copies of records, and so

forth, of Patent Office)

Sec. 674 [now 1745] (Copies of foreign letters patent as prima

facie evidence)

Sec. 675 [former] (Copies of specifications and drawings of

patents admissible)

Sec. 676 [now 1736] (Extracts from Journals of Congress admissible

when injunction of secrecy removed)

Sec. 677 [now 1740] (Copies of records in offices of United States

consuls admissible)

Sec. 678 [former] (Books and papers in certain district courts)

Sec. 679 [former] (Records in clerks' offices, western district of

North Carolina)

Sec. 680 [former] (Records in clerks' offices of former district

of California)

Sec. 681 [now 1734] (Original records lost or destroyed; certified

copy admissible)

Sec. 682 [now 1734] (Same; when certified copy not obtainable)

Sec. 685 [now 1735] (Same; certified copy of official papers)

Sec. 687 [now 1738] (Authentication of legislative acts; proof of

judicial proceedings of State)

Sec. 688 [now 1739] (Proofs of records in offices not pertaining

to courts)

Sec. 689 [now 1742] (Copies of foreign records relating to land

titles)

Sec. 695 [now 1732] (Writings and records made in regular course

of business; admissibility)

Sec. 695e [now 1741] (Foreign documents on record in public

offices; certification)

U.S.C., Title 1:

Sec. 30 [now 112] (Statutes at large; contents; admissibility in

evidence)

Sec. 30a [now 113] ("Little and Brown's" edition of laws and

treaties competent evidence of Acts of Congress)

Sec. 54 [now 204] (Codes and supplements as establishing prima

facie the laws of United States and District of Columbia,

etc.)

Sec. 55 [now 208] (Copies of supplements to Code of Laws of United

States and of District of Columbia Code and supplements;

conclusive evidence of original)

U.S.C., Title 5:

Sec. 490 [former] (Records of Department of Interior;

authenticated copies as evidence)

U.S.C., Title 6:

Sec. 7 [now Title 31, Sec. 9306] (Surety Companies as sureties;

appointment of agents; service of process)

U.S.C., Title 8:

Sec. 9a [see 1435(c)] (Citizenship of children of persons

naturalized under certain laws; repatriation of native-born

women married to aliens prior to September 22, 1922; copies

of proceedings)

Sec. 356 [see 1443] (Regulations for execution of naturalization

laws; certified copies of papers as evidence)

Sec. 399b(d) [see 1443] (Certifications of naturalization records;

authorization; admissibility as evidence)

U.S.C., Title 11:

Sec. 44(d), (e), (f), (g) [former] (Bankruptcy court proceedings

and orders as evidence)

Sec. 204 [former] (Extensions extended, etc.; evidence of

confirmation)

Sec. 207(j) [former] (Corporate reorganizations; certified copy of

decree as evidence)

U.S.C., Title 15:

Sec. 127 (Trade-mark records in Patent Office; copies as evidence)

U.S.C., Title 20:

Sec. 52 (Smithsonian Institution; evidence of title to site and

buildings)

U.S.C., Title 25:

Sec. 6 (Bureau of Indian Affairs; seal; authenticated and

certified documents; evidence)

U.S.C., Title 31:

Sec. 46 [now 704] (Laws governing General Accounting Office;

copies of books, records, etc., thereof as evidence)

U.S.C., Title 38:

Sec. 11g [see 302] (Seal of Veterans' Administration;

authentication of copies of records)

U.S.C., Title 40:

Sec. 238 [former] (National Archives; seal; reproduction of

archives; fee; admissibility in evidence of reproductions)

Sec. 270c [now 3133(a)] (Bonds of contractors for public works;

right of person furnishing labor or material to copy of bond)

U.S.C., Title 43:

Secs. 57-59 (Copies of land surveys, etc., in certain states and

districts admissible as evidence)

Sec. 83 (General Land Office registers and receivers; transcripts

of records as evidence)

U.S.C., Title 46:

Sec. 823 [former] (Records of Maritime Commission; copies;

publication of reports; evidence)

U.S.C., Title 47:

Sec. 154(m) (Federal Communications Commission; copies of reports

and decisions as evidence)

Sec. 412 (Documents filed with Federal Communications Commission

as public records; prima facie evidence; confidential

records)

U.S.C., Title 49:

Sec. 14(3) [see 706] (Interstate Commerce Commission reports and

decisions; printing and distribution of copies)

Sec. 16(13) [former] (Copies of schedules, tariffs, etc., filed

with Interstate Commerce Commission as evidence)

Sec. 19a(i) [former] (Valuation of property of carriers by

Interstate Commerce Commission; final published valuations as

evidence)

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 SUPPLEMENTARY NOTE

REGARDING RULES 43 AND 44

For supplementary note of Advisory Committee on this rule, see

note under rule 43.

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

Subdivision (a)(1). These provisions on proof of official records

kept within the United States are similar in substance to those

heretofore appearing in Rule 44. There is a more exact description

of the geographical areas covered. An official record kept in one

of the areas enumerated qualifies for proof under subdivision

(a)(1) even though it is not a United States official record. For

example, an official record kept in one of these areas by a

government in exile falls within subdivision (a)(1). It also falls

within subdivision (a)(2) which may be availed of alternatively.

Cf. Banco de Espana v. Federal Reserve Bank, 114 F.2d 438 (2d Cir.

1940).

Subdivision (a)(2). Foreign official records may be proved, as

heretofore, by means of official publications thereof. See United

States v. Aluminum Co. of America, 1 F.R.D. 71 (S.D.N.Y. 1939).

Under this rule, a document that, on its face, appears to be an

official publication, is admissible, unless a party opposing its

admission into evidence shows that it lacks that character.

The rest of subdivision (a)(2) aims to provide greater clarity,

efficiency, and flexibility in the procedure for authenticating

copies of foreign official records.

The reference to attestation by "the officer having the legal

custody of the record," hitherto appearing in Rule 44, has been

found inappropriate for official records kept in foreign countries

where the assumed relation between custody and the authority to

attest does not obtain. See 2B Barron & Holtzoff, Federal Practice

& Procedure Sec. 992 (Wright ed. 1961). Accordingly it is provided

that an attested copy may be obtained from any person authorized by

the law of the foreign country to make the attestation without

regard to whether he is charged with responsibility for maintaining

the record or keeping it in his custody.

Under Rule 44 a United States foreign service officer has been

called on to certify to the authority of the foreign official

attesting the copy as well as the genuineness of his signature and

his official position. See Schlesinger, Comparative Law 57 (2d ed.

1959); Smit, International Aspects of Federal Civil Procedure, 61

Colum.L.Rev. 1031, 1063 (1961); 22 C.F.R. Sec. 92.41(a), (e)

(1958). This has created practical difficulties. For example, the

question of the authority of the foreign officer might raise issues

of foreign law which were beyond the knowledge of the United States

officer. The difficulties are met under the amended rule by

eliminating the element of the authority of the attesting foreign

official from the scope of the certifying process, and by

specifically permitting use of the chain-certificate method. Under

this method, it is sufficient if the original attestation purports

to have been issued by an authorized person and is accompanied by a

certificate of another foreign official whose certificate may in

turn be followed by that of a foreign official of higher rank. The

process continues until a foreign official is reached as to whom

the United States foreign service official (or a diplomatic or

consular officer of the foreign country assigned or accredited to

the United States) has adequate information upon which to base a

"final certification." See New York Life Ins. Co. v. Aronson, 38

F.Supp. 687 (W.D.Pa. 1941); 22 C.F.R. Sec. 92.37 (1958).

The final certification (a term used in contradistinction to the

certificates prepared by the foreign officials in a chain) relates

to the incumbency and genuineness of signature of the foreign

official who attested the copy of the record or, where the

chain-certificate method is used, of a foreign official whose

certificate appears in the chain, whether that certificate is the

last in the chain or not. A final certification may be prepared on

the basis of material on file in the consulate or any other

satisfactory information.

Although the amended rule will generally facilitate proof of

foreign official records, it is recognized that in some situations

it may be difficult or even impossible to satisfy the basic

requirements of the rule. There may be no United States consul in a

particular foreign country; the foreign officials may not

cooperate, peculiarities may exist or arise hereafter in the law or

practice of a foreign country. See United States v. Grabina, 119

F.2d 863 (2d Cir. 1941); and, generally, Jones, International

Judicial Assistance: Procedural Chaos and a Program for Reform, 62

Yale L.J. 515, 548-49 (1953). Therefore the final sentence of

subdivision (a)(2) provides the court with discretion to admit an

attested copy of a record without a final certification, or an

attested summary of a record with or without a final certification.

See Rep. of Comm. on Comparative Civ. Proc. & Prac., Proc. A.B.A.,

Sec. Int'l & Comp. L. 123, 130-131 (1952); Model Code of Evidence

Secs. 517, 519 (1942). This relaxation should be permitted only

when it is shown that the party has been unable to satisfy the

basic requirements of the amended rule despite his reasonable

efforts. Moreover, it is specially provided that the parties must

be given a reasonable opportunity in these cases to examine into

the authenticity and accuracy of the copy or summary.

Subdivision (b). This provision relating to proof of lack of

record is accommodated to the changes made in subdivision (a).

Subdivision (c). The amendment insures that international

agreements of the United States are unaffected by the rule. Several

consular conventions contain provisions for reception of copies or

summaries of foreign official records. See, e.g., Consular Conv.

with Italy, May 8, 1878, art. X, 20 Stat. 725, T.S. No. 178 (Dept.

State 1878). See also 28 U.S.C. Secs. 1740-42, 1745; Fakouri v.

Cadais, 149 F.2d 321 (5th Cir. 1945), cert. denied, 326 U.S. 742

(1945); 5 Moore's Federal Practice, par. 44.05 (2d ed. 1951).

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

The amendment to paragraph (a)(1) strikes the references to

specific territories, two of which are no longer subject to the

jurisdiction of the United States, and adds a generic term to

describe governments having a relationship with the United States

such that their official records should be treated as domestic

records.

The amendment to paragraph (a)(2) adds a sentence to dispense

with the final certification by diplomatic officers when the United

States and the foreign country where the record is located are

parties to a treaty or convention that abolishes or displaces the

requirement. In that event the treaty or convention is to be

followed. This changes the former procedure for authenticating

foreign official records only with respect to records from

countries that are parties to the Hague Convention Abolishing the

Requirement of Legalization for Foreign Public Documents. Moreover,

it does not affect the former practice of attesting the records,

but only changes the method of certifying the attestation.

The Hague Public Documents Convention provides that the

requirement of a final certification is abolished and replaced with

a model apostille, which is to be issued by officials of the

country where the records are located. See Hague Public Documents

Convention, Arts. 2-4. The apostille certifies the signature,

official position, and seal of the attesting officer. The authority

who issues the apostille must maintain a register or card index

showing the serial number of the apostille and other relevant

information recorded on it. A foreign court can then check the

serial number and information on the apostille with the issuing

authority in order to guard against the use of fraudulent

apostilles. This system provides a reliable method for maintaining

the integrity of the authentication process, and the apostille can

be accorded greater weight than the normal authentication procedure

because foreign officials are more likely to know the precise

capacity under their law of the attesting officer than would an

American official. See generally Comment, The United States and the

Hague Convention Abolishing the Requirement of Legalization for

Foreign Public Documents, 11 HARV. INT'L L.J. 476, 482, 488 (1970).

-End-

-CITE-

28 USC APPENDIX Rule 44.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

Rule 44.1. Determination of Foreign Law

-STATUTE-

A party who intends to raise an issue concerning the law of a

foreign country shall give notice by pleadings or other reasonable

written notice. The court, in determining foreign law, may consider

any relevant material or source, including testimony, whether or

not submitted by a party or admissible under the Federal Rules of

Evidence. The court's determination shall be treated as a ruling on

a question of law.

-SOURCE-

(As added Feb. 28, 1966, eff. July 1, 1966; amended Nov. 20, 1972,

eff. July 1, 1975; Mar. 2, 1987, eff. Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1966

Rule 44.1 is added by amendment to furnish Federal courts with a

uniform and effective procedure for raising and determining an

issue concerning the law of a foreign country.

To avoid unfair surprise, the first sentence of the new rule

requires that a party who intends to raise an issue of foreign law

shall give notice thereof. The uncertainty under Rule 8(a) about

whether foreign law must be pleaded - compare Siegelman v. Cunard

White Star, Ltd., 221 F.2d 189 (2d Cir. 1955), and Pedersen v.

United States, 191 F.Supp. 95 (D.Guam 1961), with Harrison v.

United Fruit Co., 143 F.Supp. 598 (S.D.N.Y. 1956) - is eliminated

by the provision that the notice shall be "written" and

"reasonable." It may, but need not be, incorporated in the

pleadings. In some situations the pertinence of foreign law is

apparent from the outset; accordingly the necessary investigation

of that law will have been accomplished by the party at the

pleading stage, and the notice can be given conveniently in the

pleadings. In other situations the pertinence of foreign law may

remain doubtful until the case is further developed. A requirement

that notice of foreign law be given only through the medium of the

pleadings would tend in the latter instances to force the party to

engage in a peculiarly burdensome type of investigation which might

turn out to be unnecessary; and correspondingly the adversary would

be forced into a possible wasteful investigation. The liberal

provisions for amendment of the pleadings afford help if the

pleadings are used as the medium of giving notice of the foreign

law; but it seems best to permit a written notice to be given

outside of and later than the pleadings, provided the notice is

reasonable.

The new rule does not attempt to set any definite limit on the

party's time for giving the notice of an issue of foreign law; in

some cases the issue may not become apparent until the trial and

notice then given may still be reasonable. The stage which the case

has reached at the time of the notice, the reason proffered by the

party for his failure to give earlier notice, and the importance to

the case as a whole of the issue of foreign law sought to be

raised, are among the factors which the court should consider in

deciding a question of the reasonableness of a notice. If notice is

given by one party it need not be repeated by any other and serves

as a basis for presentation of material on the foreign law by all

parties.

The second sentence of the new rule describes the materials to

which the court may resort in determining an issue of foreign law.

Heretofore the district courts, applying Rule 43(a), have looked in

certain cases to State law to find the rules of evidence by which

the content of foreign-country law is to be established. The State

laws vary; some embody procedures which are inefficient, time

consuming and expensive. See, generally, Nussbaum, Proving the Law

of Foreign Countries, 3 Am.J.Comp.L. 60 (1954). In all events the

ordinary rules of evidence are often inapposite to the problem of

determining foreign law and have in the past prevented examination

of material which could have provided a proper basis for the

determination. The new rule permits consideration by the court of

any relevant material, including testimony, without regard to its

admissibility under Rule 43. Cf. N.Y.Civ.Prac.Law & Rules, R. 4511

(effective Sept. 1, 1963); 2 Va.Code Ann. tit. 8, Sec. 8-273; 2

W.Va.Code Ann. Sec. 5711.

In further recognition of the peculiar nature of the issue of

foreign law, the new rule provides that in determining this law the

court is not limited by material presented by the parties; it may

engage in its own research and consider any relevant material thus

found. The court may have at its disposal better foreign law

materials than counsel have presented, or may wish to reexamine and

amplify material that has been presented by counsel in partisan

fashion or in insufficient detail. On the other hand, the court is

free to insist on a complete presentation by counsel.

There is no requirement that the court give formal notice to the

parties of its intention to engage in its own research on an issue

of foreign law which has been raised by them, or of its intention

to raise and determine independently an issue not raised by them.

Ordinarily the court should inform the parties of material it has

found diverging substantially from the material which they have

presented; and in general the court should give the parties an

opportunity to analyze and counter new points upon which it

proposes to rely. See Schlesinger, Comparative Law 142 (2d ed.

1959); Wyzanski, A Trial Judge's Freedom and Responsibility, 65

Harv.L.Rev. 1281, 1296 (1952); cf. Siegelman v. Cunard White Star,

Ltd., supra, 221 F.2d at 197. To require, however, that the court

give formal notice from time to time as it proceeds with its study

of the foreign law would add an element of undesirable rigidity to

the procedure for determining issues of foreign law.

The new rule refrains from imposing an obligation on the court to

take "judicial notice" of foreign law because this would put an

extreme burden on the court in many cases; and it avoids use of the

concept of "judicial notice" in any form because of the uncertain

meaning of that concept as applied to foreign law. See, e.g.,

Stern, Foreign Law in the Courts: Judicial Notice and Proof, 45

Calif.L.Rev. 23, 43 (1957). Rather the rule provides flexible

procedures for presenting and utilizing material on issues of

foreign law by which a sound result can be achieved with fairness

to the parties.

Under the third sentence, the court's determination of an issue

of foreign law is to be treated as a ruling on a question of "law,"

not "fact," so that appellate review will not be narrowly confined

by the "clearly erroneous" standard of Rule 52(a). Cf. Uniform

Judicial Notice of Foreign Law Act Sec. 3; Note, 72 Harv.L.Rev. 318

(1958).

The new rule parallels Article IV of the Uniform Interstate and

International Procedure Act, approved by the Commissioners on

Uniform State Laws in 1962, except that section 4.03 of Article IV

states that "[t]he court, not the jury" shall determine foreign

law. The new rule does not address itself to this problem, since

the Rules refrain from allocating functions as between the court

and the jury. See Rule 38(a). It has long been thought, however,

that the jury is not the appropriate body to determine issues of

foreign law. See, e.g., Story, Conflict of Laws, Sec. 638 (1st ed.

1834, 8th ed. 1883); 1 Greenleaf, Evidence, Sec. 486 (1st ed. 1842,

16th ed. 1899); 4 Wigmore, Evidence Sec. 2558 (1st ed. 1905); 9 id.

Sec. 2558 (3d ed. 1940). The majority of the States have committed

such issues to determination by the court. See Article 5 of the

Uniform Judicial Notice of Foreign Law Act, adopted by twenty-six

states, 9A U.L.A. 318 (1957) (Suppl. 1961, at 134);

N.Y.Civ.Prac.Law & Rules, R. 4511 (effective Sept. 1, 1963);

Wigmore, loc. cit. And Federal courts that have considered the

problem in recent years have reached the same conclusion without

reliance on statute. See Janson v. Swedish American Line, 185 F.2d

212, 216 (1st Cir. 1950); Bank of Nova Scotia v. San Miguel, 196

F.2d 950, 957, n. 6 (1st Cir. 1952); Liechti v. Roche, 198 F.2d 174

(5th Cir. 1952); Daniel Lumber Co. v. Empresas Hondurenas, S.A.,

215 F.2d 465 (5th Cir. 1954).

NOTES OF ADVISORY COMMITTEE ON RULES - 1972 AMENDMENT

Since the purpose of the provision is to free the judge, in

determining foreign law, from any restrictions imposed by evidence

rules, a general reference to the Rules of Evidence is appropriate

and is made.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Evidence, referred to in text, are set out

in this Appendix.

-MISC2-

EFFECTIVE DATE OF AMENDMENT PROPOSED NOVEMBER 20, 1972

Amendment of this rule embraced by the order entered by the

Supreme Court of the United States on November 20, 1972, effective

on the 180th day beginning after January 2, 1973, see section 3 of

Pub. L. 93-595, Jan. 2, 1975, 88 Stat. 1959, set out as a note

under section 2074 of this title.

-End-

-CITE-

28 USC APPENDIX Rule 45 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

Rule 45. Subpoena

-STATUTE-

(a) Form; Issuance.

(1) Every subpoena shall

(A) state the name of the court from which it is issued; and

(B) state the title of the action, the name of the court in

which it is pending, and its civil action number; and

(C) command each person to whom it is directed to attend and

give testimony or to produce and permit inspection and copying of

designated books, documents or tangible things in the possession,

custody or control of that person, or to permit inspection of

premises, at a time and place therein specified; and

(D) set forth the text of subdivisions (c) and (d) of this

rule.

A command to produce evidence or to permit inspection may be

joined with a command to appear at trial or hearing or at

deposition, or may be issued separately.

(2) A subpoena commanding attendance at a trial or hearing

shall issue from the court for the district in which the hearing

or trial is to be held. A subpoena for attendance at a deposition

shall issue from the court for the district designated by the

notice of deposition as the district in which the deposition is

to be taken. If separate from a subpoena commanding the

attendance of a person, a subpoena for production or inspection

shall issue from the court for the district in which the

production or inspection is to be made.

(3) The clerk shall issue a subpoena, signed but otherwise in

blank, to a party requesting it, who shall complete it before

service. An attorney as officer of the court may also issue and

sign a subpoena on behalf of

(A) a court in which the attorney is authorized to practice; or

(B) a court for a district in which a deposition or production

is compelled by the subpoena, if the deposition or production

pertains to an action pending in a court in which the attorney is

authorized to practice.

(b) Service.

(1) A subpoena may be served by any person who is not a party

and is not less than 18 years of age. Service of a subpoena upon

a person named therein shall be made by delivering a copy thereof

to such person and, if the person's attendance is commanded, by

tendering to that person the fees for one day's attendance and

the mileage allowed by law. When the subpoena is issued on behalf

of the United States or an officer or agency thereof, fees and

mileage need not be tendered. Prior notice of any commanded

production of documents and things or inspection of premises

before trial shall be served on each party in the manner

prescribed by Rule 5(b).

(2) Subject to the provisions of clause (ii) of subparagraph

(c)(3)(A) of this rule, a subpoena may be served at any place

within the district of the court by which it is issued, or at any

place without the district that is within 100 miles of the place

of the deposition, hearing, trial, production, or inspection

specified in the subpoena or at any place within the state where

a state statute or rule of court permits service of a subpoena

issued by a state court of general jurisdiction sitting in the

place of the deposition, hearing, trial, production, or

inspection specified in the subpoena. When a statute of the

United States provides therefor, the court upon proper

application and cause shown may authorize the service of a

subpoena at any other place. A subpoena directed to a witness in

a foreign country who is a national or resident of the United

States shall issue under the circumstances and in the manner and

be served as provided in Title 28, U.S.C. Sec. 1783.

(3) Proof of service when necessary shall be made by filing

with the clerk of the court by which the subpoena is issued a

statement of the date and manner of service and of the names of

the persons served, certified by the person who made the service.

(c) Protection of Persons Subject to Subpoenas.

(1) A party or an attorney responsible for the issuance and

service of a subpoena shall take reasonable steps to avoid

imposing undue burden or expense on a person subject to that

subpoena. The court on behalf of which the subpoena was issued

shall enforce this duty and impose upon the party or attorney in

breach of this duty an appropriate sanction, which may include,

but is not limited to, lost earnings and a reasonable attorney's

fee.

(2)(A) A person commanded to produce and permit inspection and

copying of designated books, papers, documents or tangible

things, or inspection of premises need not appear in person at

the place of production or inspection unless commanded to appear

for deposition, hearing or trial.

(B) Subject to paragraph (d)(2) of this rule, a person

commanded to produce and permit inspection and copying may,

within 14 days after service of the subpoena or before the time

specified for compliance if such time is less than 14 days after

service, serve upon the party or attorney designated in the

subpoena written objection to inspection or copying of any or all

of the designated materials or of the premises. If objection is

made, the party serving the subpoena shall not be entitled to

inspect and copy the materials or inspect the premises except

pursuant to an order of the court by which the subpoena was

issued. If objection has been made, the party serving the

subpoena may, upon notice to the person commanded to produce,

move at any time for an order to compel the production. Such an

order to compel production shall protect any person who is not a

party or an officer of a party from significant expense resulting

from the inspection and copying commanded.

(3)(A) On timely motion, the court by which a subpoena was

issued shall quash or modify the subpoena if it

(i) fails to allow reasonable time for compliance;

(ii) requires a person who is not a party or an officer of a

party to travel to a place more than 100 miles from the place

where that person resides, is employed or regularly transacts

business in person, except that, subject to the provisions of

clause (c)(3)(B)(iii) of this rule, such a person may in order

to attend trial be commanded to travel from any such place

within the state in which the trial is held, or

(iii) requires disclosure of privileged or other protected

matter and no exception or waiver applies, or

(iv) subjects a person to undue burden.

(B) If a subpoena

(i) requires disclosure of a trade secret or other

confidential research, development, or commercial information,

or

(ii) requires disclosure of an unretained expert's opinion or

information not describing specific events or occurrences in

dispute and resulting from the expert's study made not at the

request of any party, or

(iii) requires a person who is not a party or an officer of a

party to incur substantial expense to travel more than 100

miles to attend trial, the court may, to protect a person

subject to or affected by the subpoena, quash or modify the

subpoena or, if the party in whose behalf the subpoena is

issued shows a substantial need for the testimony or material

that cannot be otherwise met without undue hardship and assures

that the person to whom the subpoena is addressed will be

reasonably compensated, the court may order appearance or

production only upon specified conditions.

(d) Duties in Responding to Subpoena.

(1) A person responding to a subpoena to produce documents

shall produce them as they are kept in the usual course of

business or shall organize and label them to correspond with the

categories in the demand.

(2) When information subject to a subpoena is withheld on a

claim that it is privileged or subject to protection as trial

preparation materials, the claim shall be made expressly and

shall be supported by a description of the nature of the

documents, communications, or things not produced that is

sufficient to enable the demanding party to contest the claim.

(e) Contempt. Failure by any person without adequate excuse to

obey a subpoena served upon that person may be deemed a contempt of

the court from which the subpoena issued. An adequate cause for

failure to obey exists when a subpoena purports to require a

non-party to attend or produce at a place not within the limits

provided by clause (ii) of subparagraph (c)(3)(A).

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.

Oct. 20, 1949; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980,

eff. Aug. 1, 1980; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987,

eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

This rule applies to subpoenas ad testificandum and duces tecum

issued by the district courts for attendance at a hearing or a

trial, or to take depositions. It does not apply to the enforcement

of subpoenas issued by administrative officers and commissions

pursuant to statutory authority. The enforcement of such subpoenas

by the district courts is regulated by appropriate statutes. Many

of these statutes do not place any territorial limits on the

validity of subpoenas so issued, but provide that they may be

served anywhere within the United States. Among such statutes are

the following:

U.S.C., Title 7, Secs. 222 and 511n (Secretary of Agriculture)

U.S.C., Title 15, Sec. 49 (Federal Trade Commission)

U.S.C., Title 15, Secs. 77v(b), 78u(c), 79r(d) (Securities and

Exchange Commission)

U.S.C., Title 16, Secs. 797(g) and 825f (Federal Power Commission)

U.S.C., Title 19, Sec. 1333(b) (Tariff Commission)

U.S.C., Title 22, Secs. 268, 270d and 270e (International

Commissions, etc.)

U.S.C., Title 26, Secs. 614, 619(b) [see 7456] (Board of Tax

Appeals)

U.S.C., Title 26, Sec. 1523(a) [see 7608] (Internal Revenue

Officers)

U.S.C., Title 29, Sec. 161 (Labor Relations Board)

U.S.C., Title 33, Sec. 506 (Secretary of Army)

U.S.C., Title 35, Secs. 54-56 [now 24] (Patent Office proceedings)

U.S.C., Title 38, [former] Sec. 133 (Veterans' Administration)

U.S.C., Title 41, Sec. 39 (Secretary of Labor)

U.S.C., Title 45, Sec. 157 Third. (h) (Board of Arbitration under

Railway Labor Act)

U.S.C., Title 45, Sec. 222(b) (Investigation Commission under

Railroad Retirement Act of 1935)

U.S.C., Title 46 [App.], Sec. 1124(b) (Maritime Commission)

U.S.C., Title 47, Sec. 409(c) and (d) (Federal Communications

Commission)

U.S.C., Title 49, Sec. 12(2) and (3) [see 721(c) and 13301(c)]

(Interstate Commerce Commission)

U.S.C., Title 49, Sec. 173a [see 46104] (Secretary of Commerce)

Note to Subdivisions (a) and (b). These simplify the form of

subpoena as provided in U.S.C., Title 28, [former] Sec. 655

(Witnesses; subpoena; form; attendance under); and broaden U.S.C.,

Title 28, [former] Sec. 636 (Production of books and writings) to

include all actions, and to extend to any person. With the

provision for relief from an oppressive or unreasonable subpoena

duces tecum, compare N.Y.C.P.A. (1937) Sec. 411.

Note to Subdivision (c). This provides for the simple and

convenient method of service permitted under many state codes;

e.g., N.Y.C.P.A. (1937) Secs. 220, 404, J.Ct.Act, Sec. 191; 3

Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 1218. Compare Equity Rule

15 (Process, by Whom Served).

For statutes governing fees and mileage of witnesses see:

U.S.C., Title 28:

Sec. 600a [now 1871] (Per diem; mileage)

Sec. 600c [now 1821, 1825] (Amount per diem and mileage for

witnesses; subsistence)

Sec. 600d [former] (Fees and mileage in certain states)

Sec. 601 [former] (Witnesses; fees; enumeration)

Sec. 602 [now 1824] (Fees and mileage of jurors and witnesses)

Sec. 603 [see Title 5, Secs. 5515, 5537] (No officer of court to

have witness fees)

Note to Subdivision (d). The method provided in paragraph (1) for

the authorization of the issuance of subpoenas has been employed in

some districts. See Henning v. Boyle, 112 Fed. 397 (S.D.N.Y.,

1901). The requirement of an order for the issuance of a subpoena

duces tecum is in accordance with U.S.C., Title 28, [former] Sec.

647 (Deposition under dedimus potestatem; subpoena duces tecum).

The provisions of paragraph (2) are in accordance with common

practice. See U.S.C., Title 28, [former] Sec. 648 (Deposition under

dedimus potestatem; witnesses, when required to attend); N.Y.C.P.A.

(1937) Sec. 300; 1 N.J.Rev.Stat. (1937) 2:27-174.

Note to Subdivision (e). The first paragraph continues the

substance of U.S.C., Title 28, [former] Sec. 654 (Witnesses;

subpoenas; may run into another district). Compare U.S.C., Title

11, [former] Sec. 69 (Referees in bankruptcy; contempts before)

(production of books and writings) which is not affected by this

rule. For examples of statutes which allow the court, upon proper

application and cause shown, to authorize the clerk of the court to

issue a subpoena for a witness who lives in another district and at

a greater distance than 100 miles from the place of the hearing or

trial, see:

U.S.C., Title 15:

Sec. 23 (Suits by United States; subpoenas for witnesses) (under

antitrust laws).

U.S.C., Title 38:

Sec. 445 [now 1984] (Actions on claims; jurisdiction; parties;

procedure; limitation; witnesses; definitions) (Veterans;

insurance contracts).

The second paragraph continues the present procedure applicable

to certain witnesses who are in foreign countries. See U.S.C.,

Title 28, Secs. 711 [now 1783] (Letters rogatory to take testimony

of witness, addressed to court of foreign country; failure of

witness to appear; subpoena) and 713 [now 1783] (Service of

subpoena on witness in foreign country).

Note to Subdivision (f). Compare [former] Equity Rule 52

(Attendance of Witnesses Before Commissioner, Master, or Examiner).

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

Subdivision (b). The added words, "or tangible things" in

subdivision (b) merely make the rule for the subpoena duces tecum

at the trial conform to that of subdivision (d) for the subpoena at

the taking of depositions.

The insertion of the words "or modify" in clause (1) affords

desirable flexibility.

Subdivision (d). The added last sentence of amended subdivision

(d)(1) properly gives the subpoena for documents or tangible things

the same scope as provided in Rule 26(b), thus promoting

uniformity. The requirement in the last sentence of original Rule

45(d)(1) - to the effect that leave of court should be obtained for

the issuance of such a subpoena - has been omitted. This

requirement is unnecessary and oppressive on both counsel and

court, and it has been criticized by district judges. There is no

satisfactory reason for a differentiation between a subpoena for

the production of documentary evidence by a witness at a trial

(Rule 45(a)) and for the production of the same evidence at the

taking of a deposition. Under this amendment, the person subpoenaed

may obtain the protection afforded by any of the orders permitted

under Rule 30(b) or Rule 45(b). See Application of Zenith Radio

Corp. (E.D.Pa. 1941) 4 Fed.Rules Serv. 30b.21, Case 1, 1 F.R.D.

627; Fox v. House (E.D.Okla. 1939) 29 F.Supp. 673; United States of

America for the Use of Tilo Roofing Co., Inc. v. J. Slotnik Co.

(D.Conn. 1944) 3 F.R.D. 408.

The changes in subdivision (d)(2) give the court the same power

in the case of residents of the district as is conferred in the

case of non-residents, and permit the court to fix a place for

attendance which may be more convenient and accessible for the

parties than that specified in the rule.

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

The amendment substitutes the present statutory reference.

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT

At present, when a subpoena duces tecum is issued to a deponent,

he is required to produce the listed materials at the deposition,

but is under no clear compulsion to permit their inspection and

copying. This results in confusion and uncertainty before the time

the deposition is taken, with no mechanism provided whereby the

court can resolve the matter. Rule 45(d)(1), as revised, makes

clear that the subpoena authorizes inspection and copying of the

materials produced. The deponent is afforded full protection since

he can object, thereby forcing the party serving the subpoena to

obtain a court order if he wishes to inspect and copy. The

procedure is thus analogous to that provided in Rule 34.

The changed references to other rules conform to changes made in

those rules. The deletion of words in the clause describing the

proper scope of the subpoena conforms to a change made in the

language of Rule 34. The reference to Rule 26(b) is unchanged but

encompasses new matter in that subdivision. The changes make it

clear that the scope of discovery through a subpoena is the same as

that applicable to Rule 34 and the other discovery rules.

NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT

Subdivision (d)(1). The amendment defines the term "proof of

service" as used in the first sentence of the present subdivision.

For want of a definition, the district court clerks have been

obliged to fashion their own, with results that vary from district

to district. All that seems required is a simple certification on a

copy of the notice to take a deposition that the notice has been

served on every other party to the action. That is the proof of

service required by Rule 25(d) of both the Federal Rules of

Appellate Procedure and the Supreme Court Rules.

Subdivision (e)(1). The amendment makes the reach of a subpoena

of a district court at least as extensive as that of the state

courts of general jurisdiction in the state in which the district

court is held. Under the present rule the reach of a district court

subpoena is often greater, since it extends throughout the

district. No reason appears why it should be less, as it sometimes

is because of the accident of district lines. Restrictions upon the

reach of subpoenas are imposed to prevent undue inconvenience to

witnesses. State statutes and rules of court are quite likely to

reflect the varying degrees of difficulty and expense attendant

upon local travel.

NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT

Present Rule 45(d)(2) has two sentences setting forth the

territorial scope of deposition subpoenas. The first sentence is

directed to depositions taken in the judicial district in which the

deponent resides; the second sentence addresses situations in which

the deponent is not a resident of the district in which the

deposition is to take place. The Rule, as currently constituted,

creates anomalous situations that often cause logistical problems

in conducting litigation.

The first sentence of the present Rule states that a deponent may

be required to attend only in the county wherein that person

resides or is employed or transacts business in person, that is,

where the person lives or works. Under this provision a deponent

can be compelled, without court order, to travel from one end of

that person's home county to the other, no matter how far that may

be. The second sentence of the Rule is somewhat more flexible,

stating that someone who does not reside in the district in which

the deposition is to be taken can be required to attend in the

county where the person is served with the subpoena, or within 40

miles from the place of service.

Under today's conditions there is no sound reason for

distinguishing between residents of the district or county in which

a deposition is to be taken and nonresidents, and the Rule is

amended to provide that any person may be subpoenaed to attend a

deposition within a specified radius from that person's residence,

place of business, or where the person was served. The 40-mile

radius has been increased to 100 miles.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

Purposes of Revision. The purposes of this revision are (1) to

clarify and enlarge the protections afforded persons who are

required to assist the court by giving information or evidence; (2)

to facilitate access outside the deposition procedure provided by

Rule 30 to documents and other information in the possession of

persons who are not parties; (3) to facilitate service of subpoenas

for depositions or productions of evidence at places distant from

the district in which an action is proceeding; (4) to enable the

court to compel a witness found within the state in which the court

sits to attend trial; (5) to clarify the organization of the text

of the rule.

Subdivision (a). This subdivision is amended in seven significant

respects.

First, Paragraph (a)(3) modifies the requirement that a subpoena

be issued by the clerk of court. Provision is made for the issuance

of subpoenas by attorneys as officers of the court. This revision

perhaps culminates an evolution. Subpoenas were long issued by

specific order of the court. As this became a burden to the court,

general orders were made authorizing clerks to issue subpoenas on

request. Since 1948, they have been issued in blank by the clerk of

any federal court to any lawyer, the clerk serving as stationer to

the bar. In allowing counsel to issue the subpoena, the rule is

merely a recognition of present reality.

Although the subpoena is in a sense the command of the attorney

who completes the form, defiance of a subpoena is nevertheless an

act in defiance of a court order and exposes the defiant witness to

contempt sanctions. In ICC v. Brimson, 154 U.S. 447 (1894), the

Court upheld a statute directing federal courts to issue subpoenas

to compel testimony before the ICC. In CAB v. Hermann, 353 U.S. 322

(1957), the Court approved as established practice the issuance of

administrative subpoenas as a matter of absolute agency right. And

in NLRB v. Warren Co., 350 U.S. 107 (1955), the Court held that the

lower court had no discretion to withhold sanctions against a

contemnor who violated such subpoenas. The 1948 revision of Rule 45

put the attorney in a position similar to that of the

administrative agency, as a public officer entitled to use the

court's contempt power to investigate facts in dispute. Two courts

of appeals have touched on the issue and have described

lawyer-issued subpoenas as mandates of the court. Waste Conversion,

Inc. v. Rollins Environmental Services (NJ), Inc., 893 F.2d 605 (3d

cir., 1990); Fisher v. Marubent Cotton Corp., 526 F.2d 1338, 1340

(8th cir., 1975). Cf. Young v. United States ex rel Vuitton et Fils

S.A., 481 U.S. 787, 821 (1987) (Scalia, J., concurring). This

revision makes the rule explicit that the attorney acts as an

officer of the court in issuing and signing subpoenas.

Necessarily accompanying the evolution of this power of the

lawyer as officer of the court is the development of increased

responsibility and liability for the misuse of this power. The

latter development is reflected in the provisions of subdivision

(c) of this rule, and also in the requirement imposed by paragraph

(3) of this subdivision that the attorney issuing a subpoena must

sign it.

Second, Paragraph (a)(3) authorizes attorneys in distant

districts to serve as officers authorized to issue commands in the

name of the court. Any attorney permitted to represent a client in

a federal court, even one admitted pro hac vice, has the same

authority as a clerk to issue a subpoena from any federal court for

the district in which the subpoena is served and enforced. In

authorizing attorneys to issue subpoenas from distant courts, the

amended rule effectively authorizes service of a subpoena anywhere

in the United States by an attorney representing any party. This

change is intended to ease the administrative burdens of

inter-district law practice. The former rule resulted in delay and

expense caused by the need to secure forms from clerks' offices

some distance from the place at which the action proceeds. This

change does not enlarge the burden on the witness.

Pursuant to Paragraph (a)(2), a subpoena for a deposition must

still issue from the court in which the deposition or production

would be compelled. Accordingly, a motion to quash such a subpoena

if it overbears the limits of the subpoena power must, as under the

previous rule, be presented to the court for the district in which

the deposition would occur. Likewise, the court in whose name the

subpoena is issued is responsible for its enforcement.

Third, in order to relieve attorneys of the need to secure an

appropriate seal to affix to a subpoena issued as an officer of a

distant court, the requirement that a subpoena be under seal is

abolished by the provisions of Paragraph (a)(1).

Fourth, Paragraph (a)(1) authorizes the issuance of a subpoena to

compel a non-party to produce evidence independent of any

deposition. This revision spares the necessity of a deposition of

the custodian of evidentiary material required to be produced. A

party seeking additional production from a person subject to such a

subpoena may serve an additional subpoena requiring additional

production at the same time and place.

Fifth, Paragraph (a)(2) makes clear that the person subject to

the subpoena is required to produce materials in that person's

control whether or not the materials are located within the

district or within the territory within which the subpoena can be

served. The non-party witness is subject to the same scope of

discovery under this rule as that person would be as a party to

whom a request is addressed pursuant to Rule 34.

Sixth, Paragraph (a)(1) requires that the subpoena include a

statement of the rights and duties of witnesses by setting forth in

full the text of the new subdivisions (c) and (d).

Seventh, the revised rule authorizes the issuance of a subpoena

to compel the inspection of premises in the possession of a

non-party. Rule 34 has authorized such inspections of premises in

the possession of a party as discovery compelled under Rule 37, but

prior practice required an independent proceeding to secure such

relief ancillary to the federal proceeding when the premises were

not in the possession of a party. Practice in some states has long

authorized such use of a subpoena for this purpose without apparent

adverse consequence.

Subdivision (b). Paragraph (b)(1) retains the text of the former

subdivision (c) with minor changes.

The reference to the United States marshal and deputy marshal is

deleted because of the infrequency of the use of these officers for

this purpose. Inasmuch as these officers meet the age requirement,

they may still be used if available.

A provision requiring service of prior notice pursuant to Rule 5

of compulsory pretrial production or inspection has been added to

paragraph (b)(1). The purpose of such notice is to afford other

parties an opportunity to object to the production or inspection,

or to serve a demand for additional documents or things. Such

additional notice is not needed with respect to a deposition

because of the requirement of notice imposed by Rule 30 or 31. But

when production or inspection is sought independently of a

deposition, other parties may need notice in order to monitor the

discovery and in order to pursue access to any information that may

or should be produced.

Paragraph (b)(2) retains language formerly set forth in

subdivision (e) and extends its application to subpoenas for

depositions or production.

Paragraph (b)(3) retains language formerly set forth in paragraph

(d)(1) and extends its applications to subpoenas for trial or

hearing or production.

Subdivision (c). This provision is new and states the rights of

witnesses. It is not intended to diminish rights conferred by Rules

26-37 or any other authority.

Paragraph (c)(1) gives specific application to the principle

stated in Rule 26(g) and specifies liability for earnings lost by a

non-party witness as a result of a misuse of the subpoena. No

change in existing law is thereby effected. Abuse of a subpoena is

an actionable tort, Board of Ed. v. Farmingdale Classroom Teach.

Ass'n, 38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278 (1975), and

the duty of the attorney to the non-party is also embodied in Model

Rule of Professional Conduct 4.4. The liability of the attorney is

correlative to the expanded power of the attorney to issue

subpoenas. The liability may include the cost of fees to collect

attorneys' fees owed as a result of a breach of this duty.

Paragraph (c)(2) retains language from the former subdivision (b)

and paragraph (d)(1). The 10-day period for response to a subpoena

is extended to 14 days to avoid the complex calculations associated

with short time periods under Rule 6 and to allow a bit more time

for such objections to be made.

A non-party required to produce documents or materials is

protected against significant expense resulting from involuntary

assistance to the court. This provision applies, for example, to a

non-party required to provide a list of class members. The court is

not required to fix the costs in advance of production, although

this will often be the most satisfactory accommodation to protect

the party seeking discovery from excessive costs. In some

instances, it may be preferable to leave uncertain costs to be

determined after the materials have been produced, provided that

the risk of uncertainty is fully disclosed to the discovering

party. See, e.g., United States v. Columbia Broadcasting Systems,

Inc., 666 F.2d 364 (9th Cir. 1982).

Paragraph (c)(3) explicitly authorizes the quashing of a subpoena

as a means of protecting a witness from misuse of the subpoena

power. It replaces and enlarges on the former subdivision (b) of

this rule and tracks the provisions of Rule 26(c). While largely

repetitious, this rule is addressed to the witness who may read it

on the subpoena, where it is required to be printed by the revised

paragraph (a)(1) of this rule.

Subparagraph (c)(3)(A) identifies those circumstances in which a

subpoena must be quashed or modified. It restates the former

provisions with respect to the limits of mandatory travel that are

set forth in the former paragraphs (d)(2) and (e)(1), with one

important change. Under the revised rule, a federal court can

compel a witness to come from any place in the state to attend

trial, whether or not the local state law so provides. This

extension is subject to the qualification provided in the next

paragraph, which authorizes the court to condition enforcement of a

subpoena compelling a non-party witness to bear substantial expense

to attend trial. The traveling non-party witness may be entitled to

reasonable compensation for the time and effort entailed.

Clause (c)(3)(A)(iv) requires the court to protect all persons

from undue burden imposed by the use of the subpoena power.

Illustratively, 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 matters in dispute, especially so if

the adversary would be required to incur substantial travel

burdens.

Subparagraph (c)(3)(B) identifies circumstances in which a

subpoena should be quashed unless the party serving the subpoena

shows a substantial need and the court can devise an appropriate

accommodation to protect the interests of the witness. An

additional circumstance in which such action is required is a

request for costly production of documents; that situation is

expressly governed by subparagraph (b)(2)(B).

Clause (c)(3)(B)(i) authorizes the court to quash, modify, or

condition a subpoena to protect the person subject to or affected

by the subpoena from unnecessary or unduly harmful disclosures of

confidential information. It corresponds to Rule 26(c)(7).

Clause (c)(3)(B)(ii) provides appropriate protection for the

intellectual property of the non-party witness; it does not apply

to the expert retained by a party, whose information is subject to

the provisions of Rule 26(b)(4). A growing problem has been the use

of subpoenas to compel the giving of evidence and information by

unretained experts. Experts are not exempt from the duty to give

evidence, even if they cannot be compelled to prepare themselves to

give effective testimony, e.g., Carter-Wallace, Inc. v. Otte, 474

F.2d 529 (2d Cir. 1972), but compulsion to give evidence may

threaten the intellectual property of experts denied the

opportunity to bargain for the value of their services. See

generally Maurer, Compelling the Expert Witness: Fairness and

Utility Under the Federal Rules of Civil Procedure, 19 GA.L.REV. 71

(1984); Note, Discovery and Testimony of Unretained Experts, 1987

DUKE L.J. 140. Arguably the compulsion to testify can be regarded

as a "taking" of intellectual property. The rule establishes the

right of such persons to withhold their expertise, at least unless

the party seeking it makes the kind of showing required for a

conditional denial of a motion to quash as provided in the final

sentence of subparagraph (c)(3)(B); that requirement is the same as

that necessary to secure work product under Rule 26(b)(3) and gives

assurance of reasonable compensation. The Rule thus approves the

accommodation of competing interests exemplified in United States

v. Columbia Broadcasting Systems Inc., 666 F.2d 364 (9th Cir.

1982). See also Wright v. Jeep Corporation, 547 F. Supp. 871 (E.D.

Mich. 1982).

As stated in Kaufman v. Edelstein, 539 F.2d 811, 822 (2d Cir.

1976), the district court's discretion in these matters should be

informed by "the degree to which the expert is being called because

of his knowledge of facts relevant to the case rather than in order

to give opinion testimony; the difference between testifying to a

previously formed or expressed opinion and forming a new one; the

possibility that, for other reasons, the witness is a unique

expert; the extent to which the calling party is able to show the

unlikelihood that any comparable witness will willingly testify;

and the degree to which the witness is able to show that he has

been oppressed by having continually to testify. . . ."

Clause (c)(3)(B)(iii) protects non-party witnesses who may be

burdened to perform the duty to travel in order to provide

testimony at trial. The provision requires the court to condition a

subpoena requiring travel of more than 100 miles on reasonable

compensation.

Subdivision (d). This provision is new. Paragraph (d)(1) extends

to non-parties the duty imposed on parties by the last paragraph of

Rule 34(b), which was added in 1980.

Paragraph (d)(2) is new and corresponds to the new Rule 26(b)(5).

Its purpose is to provide a party whose discovery is constrained by

a claim of privilege or work product protection with information

sufficient to evaluate such a claim and to resist if it seems

unjustified. The person claiming a privilege or protection cannot

decide the limits of that party's own entitlement.

A party receiving a discovery request who asserts a privilege or

protection but fails to disclose that claim is at risk of waiving

the privilege or protection. A person claiming a privilege or

protection who fails to provide adequate information about the

privilege or protection claim to the party seeking the information

is subject to an order to show cause why the person should not be

held in contempt under subdivision (e). Motions for such orders and

responses to motions are subject to the sanctions provisions of

Rules 7 and 11.

A person served a subpoena that is too broad may be faced with a

burdensome task to provide full information regarding all that

person's claims to privilege or work product protection. Such a

person is entitled to protection that may be secured through an

objection made pursuant to paragraph (c)(2).

Subdivision (e). This provision retains most of the language of

the former subdivision (f).

"Adequate cause" for a failure to obey a subpoena remains

undefined. In at least some circumstances, a non-party might be

guilty of contempt for refusing to obey a subpoena even though the

subpoena manifestly overreaches the appropriate limits of the

subpoena power. E.g., Walker v. City of Birmingham, 388 U.S. 307

(1967). But, because the command of the subpoena is not in fact one

uttered by a judicial officer, contempt should be very sparingly

applied when the non-party witness has been overborne by a party or

attorney. The language added to subdivision (f) is intended to

assure that result where a non-party has been commanded, on the

signature of an attorney, to travel greater distances than can be

compelled pursuant to this rule.

-End-

-