Legislación
US (United States) Code. Title 28. Appendix 3
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28 USC APPENDIX Rule 23.1 01/06/03
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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-
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28 USC APPENDIX Rule 23.2 01/06/03
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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-
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28 USC APPENDIX Rule 24 01/06/03
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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-
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28 USC APPENDIX Rule 25 01/06/03
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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.
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| Enviado por: | El remitente no desea revelar su nombre |
| Idioma: | inglés |
| País: | Estados Unidos |
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