Discovery In Environmental Litigation
Problems and Techniques
1. The Nature and Functions of Discovery in Civil Actions Generally.
Discovery may be defined as the process by which information -
documentary, testimonial and physical — in the possession or control
of one party to a civil action is secured by another party. A
leading Federal Practice text describes the discovery provisions
of the Federal Rules of Civil Procedure (“FRCP”) Chapter V., Rules
26—37, as the
“legal machinery in the federal
courts to supplement the pleadings,
for the purpose of disclosing the
real points of dispute between the
parties and of affording an adequate
factual basis in preparation for
trial.” 4 Moore’s Federal Practice
S26.02(l) (Second Edition, 1976)
(“Moore”)
Hickman v. Taylor , 329 U.s. 495, 500—501 (1947), best states
the basic function of discovery under the FRCP. Notice—giving,
issue formulation and fact—revelation, performed formerly by the
pleadings, are now essentially discovery functions.
The various instruments
of discovery now serve (1) as a device,
along with the pre-trial hearing under
Rule 16, to narrow and clarify the
basic issues between the parties, and
(2) as a device for ascertaining the
facts, or information as to the exist-
ence or whereabouts of facts, relative
to those issues. Thus civil trL ls in
the federal courts no longer need be
carried on in the dark. The way is now
clear, consistent with recognized privi-
leges, for the parties to obtain the
fullest possible knowledge of the issues
and facts before the trial.”

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Discovery is one of the chief instruments in eliminating the
“sporting theory of justice”. It “together with pre-trial procedures
makes a trial less a blind man’s buff and more a fair contest with
the basic issues and facts disclosed to the fullest practicable
extent.” U.S . v. Proctor & Gamble Co. , 356 u.s. 677,683 (1958).
2. Discovery in Environmental Actions.
Although conparisons are difficult and can be misleading,
most practitioners who have participated in significant environmental
litigation and most other attorneys who have significant experience
in the practice of environmental law would agree that environmental
actions typically involve:
a. Conflicting opinions of scientific experts;
b. Issues of fact which are essentially issues of
conclusions of fact or of mixed law and fact rather than
issues of evidentiary fact;
c. Expedited pre—trial and trial proceedings;
d. More frequently than in most other types of
actions, resolution of issues by summary judgment or
other motion;
e. Large volumes of documentary evidence and often
comparatively little testimonial evidence.
For the foregoing and other reasons discovery is particularly
important in environmental actions and familiarity with the law
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and practice of discovery proceedings and the use of testimony
and other materials generated by such proceedings are essential
to effective conduct of environmental actions.
3. The Basic Scheme of Discovery Proceedings Under the Federal Rules.
Understanding and ready use of the tools of discovery involve:
a) familiarity with the law and problems of discovery generally,
including the scope of discovery, privilege and work prcduct;
and b) knowledge of the specific features and problems of each
of the five methods of discovery set out in Rule 26(a) FRCP, and
separately treated in Rules 30, 31, 33, 34, 35 and 36.
The system of discovery under the Federal Rules is based
upon:
(a) A right of each party to discover, and a
corresponding duty of each party and of any non—party witness to
disclose, all information in its possession or control which is
within the scope of discovery;
(b) A scope of relevancy which is far broader
than that of relevancy under the rules of evidence;
Cc) Exclusion from discovery of privileged matter
and conditional exclusion of “work product” and material prepared
for litigation;
Cd) Emphasis upon conduct of discovery by the
attorneys without court intervention;
Ce) Where justice may require, limitation of
particular discovery proceedings by means of “protective orders”;
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(f) The screening of material and testimony
discovered to permit the admission of it upon trial, under the
rules of evidence; and
(g) Sanctions of varying severity, up to the
ultimate sanction of entry of default judgment, for failure to
disclose information.
4. The Several Discovery Methods.
The several different discovery methods are listed in
Rule 26(a), the text of which follows:
“(a) DISCOVERY METHODS. Parties
may obtain discovery by one or more of the
following methods: depositions upon oral
exanination of written questions; written
interrogatories; production of documents
or things or permission to enter upon land
or other property, for inspection and other
purposes; physical and mental examinations;
requests for admission. Unless the court
orders otherwise under sub—division Cc) of
this rule, the frequency of use of these
methods is not limited.”
Each of the methods is the subject of separate treatment, to wit:
Oral depositions in Rule 30;
Depositions on Written Questions in Rule 31;
Iriterrogatories to parties in Rule 33;
Production of documents in Rule 34;
Physical and mental examination in Rule 35; and
Admissions in Rule 36.
In the chart which follcws there are set forth the times and
certain other particulars concerning each discovery method:
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When Caiunenccd
Ib crzmienccd
Deposition Upon
Oral Exanunation
Rule 30
Dy Defendant :
Af icr Cce nencancnt
of Action
Service of Written
Notice to Every
Other Party, fixing
date withjn reason—
alle tune’
Withi a Reasonable
Time ‘
Prior to Deposition :
Written OL ,jcction to
Irregularities in
Notice (Rule 32(d)(l)1
Notion for Protective
Order (Rule 26(c)j
By Plaintiff ;
After Expiration of 30
Days After Service of
SLurn ns and CanpPint,
or so ner with leave of
ccurti
During Defosition :
Ibtion to Tenuin te or
Limit bcUTU nation
(Rule 30(d)J
Deposition Upon
Written Questions
After Cam encanent of
Action
Service of Written
cliestions with
Notice
Within a
Reasonable Time
Written Ob)ection to
Irregularities in Notice 4
Rule 31
Written Inter—
regatorics to
Parties
Rule 33
Upon Plaintiff :
Aft.cr Caiuencanent of
Action
U on My Other Party :
With or After Service
A .u is.& is w& Uiiiipiaint
Service of Inter-
rogatories
Within 30 days
After Service,
or within 45 days
days of receipt of
s muons and ccinplaint
by Defendant
Notion for Protective
Order
Written Ob)ect on 5
Motion for Protective
Order
Discovery Device
When Return or
thjccL on Due
MC,.lnS of
C4 cct on

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Requests for
klinissions
Rule 36
Upon Plaintiff :
Alter Ccninencanent
of Action
U n Any Other Partyl
W Ui or Al tcr Service
of Ss mons and Cczuplaint
Service of Request for
Jv.bnlssions
Within 30 days after
Service, or within
45 days after receipt
of sinucns and can—
plaint by Defendant
Written Objection
I bt ion for Protective
Order
0
iiiis cIIAgr DOI t F Acca I FOR P1U ’ISIct 5 UI ICC L IIJLFS
Production of
jp 6
Upon Plaintiff:
After Caincncanent
Service of Request
to Produce
Within 30 days after
Service, or within
Written Objection
i
of Action
45 days after receipt
Notion for Protective
Rule 34
of sumons aid can-
plaint by Defendant 1
Order
tipan Any Other Party•
With or After Service
of Stimons and Ccniplaint
Physical and
Mental
After Issuance of Court
Dy Court order upan
Not Applicable
Not Applicable
casnination
Order
notion with Notice
the person examinod
to
and
Rule 35
all other parties
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) NNOTATIONS FOR SUNM RY OF DISCOVERY DEVICES
Leave of court is not required if special notice is given as provided
in Rule 30(b) (2), or if a defendant has sought discovery.
2 5 days notice is normally considered reasonable.
Reasonable time for obtaining a protective order has generally been
held to be any time prior to the date set for discovery.
All errors and irregularities in notice are waived unless written
objection is pranptly served.
Objections should be served together with answers.
6 A request for pr uction of documents may accanpany the notice of
taking a deposition. Rule 30(b) (5).
Objection to demands in a subpoena duces tecum must be served
within 10 days after service or by the date returnable If under
10 days fran service.
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The operation and use of the several discovery
devices may be described by answering with respect to each
the following questions.
Who may institute the discovery proceeding?
What may be discovered?
Of whom may the discovery be sought?
When may the proceeding be taken?
Where may the proceeding be taken?
What are the mechanics of the proceeding?
Those questions are considered below.
a. Depositions on oral examination.
SI (Rule 30] (a) W}IEN DEPOSITIONS MAY BE
TAKEN. After corinencement of the action,
any party may take the testimony of any
person, including a party, by deposition
upon oral examination. Leave of court,
granted with or without notice, must be
obtained only if the plaintiff seeks to
take a deposition prior to the expiration
of 30 days after service of the summons
and complaint upon any defendant or ser-
vice made under Rule 4(e), except that
leave is not required (1) if a defendant
has served a notice of taking deposition
or otherwise sought discovery, or (2) if
special notice is given as provided in
subdivision (b) (2) of this rule. The
attendance of witnesses may be compelled
by subpoena as provided in Rule 45. The
deposition of a person confined in prison
may be taken only by leave of court on
such terms as the court prescribes.
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(1) Who may take depositions? “Any party
may . . .
(2) What may be discovered? The scope of
discovery is as set forth in Rule
26(5), discussed under “5” above.
(3) Of whom? Whose deposition may be
taken? “Any person including a
party ...“ The deponent may be a
corporation.
“ [ Rule 30] (b) (6) A party may in
his notice and in a subpoena name as
the deponent a public or private
corporation or a partnership or as-
sociation or governmental agency and
describe with reasonable particularity
the matters on which examination is
requested. In that event, the
organization so named shall desig-
nate one or more officers, di-
rectors, or managing agents, or
other persons who consent to
testify on its behalf, and may set
forth, for each person designated,
matters on which he will testify.
A subpoena shall advise a non—
party organization of its duty to
make such a designation. The per-
Sons 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”.
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(4) When may the deposition be taken?
Under Rule 30(a) set forth above, the
defendant has a 30 day handicap. The
leave of court required of plaintiff
to take the deposition within the
first 30 days is not required,
“...if the notice (A) states 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 is about
to go out of the United States, or is
bound on a voyage to sea, and will be
unavailable for examination unless
his deposition is taken before expi-
ration of the 30-day period, and (B)
sets forth facts to support the state-
ment. The plaintiff’s attorney shall
sign the notice, and his signature
constitutes a certification by him
that to the best of his knowledge, in-
formation, and belief the statement
and supporting facts are true. The
sanctions provided by Rule 11 are
applicable to the certification”. Rule
30(b) (2).
The plaintiff may seek leave to take
depositions within the first 30 days
by motion on notice or ex parte . See
C. Albert Sauter Co . v. Richard
D. Sauter Co. , 57 ERD. 972 (E.D. Pa.
1972), in which leave was granted
to take a deposition one day after
service of coriplaint; 4A Moore
§S 30.53—54.
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(5) Where may depositions be taken?
As to parties, generally a plain-
tiff must testify in the district
in which he has brought the action.
This may be the subject of a pro-
tective order, which may include “a
designation of the tirre or place”.
Rule 26(c). See Dvnapower Sys.
Corp. v. Ross , 10 ER. Serv. 2d 30 b.
31, case 2 (S.D.N.Y. 1966). General—
].y a plaintiff must take a de-
position of a non—resident defendant
at his residence or place of busi-
ness. See Hawes v. C. E. Cook & Co. ,
64 F.R 22 (N.D.!’lich. 1974) 4A Moore
§S 26.70.
(6) How are depositions taken?
(a) The process of taking of depositions
upon oral examination involves Ci)
the notice of deposition (or, in
some cases, an order), (ii) corn—
pelling the attendance of the de-
ponent, (iii) the actual conduct
of the deposition, including the
making of objections to questions
and other aspects of the deposition,
and (iv) the transcription and sign-
ing of the minutes.
Ci) The Notice:
“ [ Rule 30) (b) (1) party desir-
ing to take the deposition of
any perscn upon oral examir.ation
shall give reasonable notice in
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writing to every other party to
the action. The notice sh U
state the time and place for
taking the deposition and the
nan e and address of each per-
son to be examined, if known,
and, if the name is not known,
a general description sufficient
to identify him or the particular
class or group to which he belongs.
If a subpoena duces tecurn 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”.
Rule 30(b)(6), providing for depositions
of corporations and governmental
agencies is quoted above.
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(ii) How is the deponent, party or non—party,
compelled to attend and render his or her testimony?
The party need not be subpoenaed. The
compulsion is provided for by Rule 37. FRCP, hereinafter
discussed, providing “Sanctions” of varying quality including
the ultimate sanction of judgment by default, for “Failure
To I ake Discovery”. The attendance and testimony of the
non-party deponent is secured by voluntary appearance or by
the subpoena provisions of Rule 45(d) and (f) FRCP.
(d) SUBPOENA FOR TAKIN DEPOSITIONS; PLACE OF EXAMINATION.
(1) Proof of service of a notice to take a deposition as provided in
Rules 30(b) and 3 1(a) constitutes a sufficient authorization for the
issuance by the clerk of the district court for the district in which the
deposition is to be taken of subpoenas for the persons named or de-
scribed therein. Proof of service may be made by filing with the clerk of
the district court for the district in which the deposition is to be taken a
copy of the notice iogezher with a statement of the date and manner of
service and of the names of the persons served, certified by the person who
made service. The subpoena may command the person to whom it is
directed to produce and permit inspection and copying of designated
books, papers, documents, or tangible things which constitute or con-
tain matters within the scope of the examination permitted by Rule
26(b), but in that event the subpoena will be subject to the provisions
of Rule 26(c) and subdivision (b) of this rule.
The person to whom the subpoena is directed may, within 10 days
after the service thereof or on or before the time specified in the subpo-
ena for compliance if such time is less than 10 days after service, serve
upon the attorney designated in the subpoena written objection to
inspection or copying of any or all of the designated materials. If
objection is made, the party serving the subpoena shall not be entitled
to inspect and copy the materials except pursuant to an order of the
court from which the subpoen was issued. The party serving the subpo-
ena may, if objection has been made, move upon notice to the deponent
for an order at any time before or during the taking of the deposition.
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(2) A resident of the district in which the deposition
is t3 be taken may be required to attend an examina-
tion only in the county wherein he resides or is em-
ployed or transacts his business in person, or at such
other convenient place as is fixed by au order of court.
A nonresident of the district may be required to attend
only in the county wherein he is s2rved with a sub-
poena, or within 40 miles from the place of service, or
at such other co venient p1ac as is f_ eci by an order
f court.
(f) CO T MPT. Failure by any person without adequate
excuse to obey a subpoena ervcd upo!I hiuu nuty be deemed
a contempt of the court from which the subpoena issued.
The sub oena is served pursuant to Rule 45(c).
(c) SEnvicE. A subpoena may be served by the marshal.
by his deputy, or by any other person who is not a party
anc is not less than iS years of age. Sei ice of a subpoena
lmOfl a person named therein shall be made by delivering
it copy thereof to such person and by tendering to him the
fees for one clay’s attendance and the mileage allowed by
law. When the subpoena is i sucd on behalf of the United
States or un officer or agency thereof, fees and mileage
need not be tendered.
The per diem and mileage fees for subpoenaed witnesses
are provided by 28 U.s.c. S 162]. which states:
“A witness attending in any court of the
United States, or before a United States
commissioner, or before any person authorized
to take his deposition pursuant to any rule
or order of a court of the United States,
shall receive $30 for each day’s attendance
and for the time necessarily occupied in
going to and returning from the same, and 10
cents per mile for going from and returning
to his place of residence.”
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(iii) The conduct of the deposition itself is
dictated by Rule 30(c) FRCP:
(c) EXAIINATIO A D CRoss-ExAMI A rroY; RECORD OF
Ex.1Ix. T1o ; OATH OBJEcTIoNs. Examination and
cross-examination of witnesses may proceed as permitted
at the trial under the provisions of the Federal Rules of
Evidence. The officer before whom the deposition is to
be taken shall put the witness on oath and shall personally,
or by someone acting under his direction and in his
presence, record the testimony of the witness. The tes-
timony shall lie taken stenographically or recorded by
any other means ordered in accordance with subdivision
(b) (4) of this ruic. If requested by one of the parties, the
test imonv shall be transcribed.
All objcction. made at the time of the examination to
the il aIi cation5 of the officer t. khig the deposition, or
to the maimer of taking it, or to the evideuce presei tecl,
or to the conduct of amy party, ;uid any other objection to
the proceedings, shall he noted by the officer upon the
dcpo it ion. Evidence objected to shall be taken subject to
the objections. In lieu of participating in the oral ex-
amination, parties may ervc written questions in a sealed
envelope on the party taking the deposition and he shall
tran mit tlic ni to the officer, who hahl Pl 0P0U1ul them to
the witness and record the answers ye rhatim.
(iv) The completion of the process after
transcription is provided for by Rule
30(e) FRCP:
(e) SUBMIs ,1Ox io WITNESs; ClI.tNc Es; SIGNING. When
the testimony is fully transci ibed the deposition shall
be submitted to the witness for examination and shall be
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read to or by ]iizzi, un1cs such examination and reading
are waived by the vitne s and by the parties. Any
changes in form or substance which the witness desires to
make shall be entered upon the deposition by the officer
with a statement of the rcasons given by the vitness for
making them. The clepo ition shall then be signed by the
vitness, unless the parties by stipulation waive the sign.
ing or the witness is iii 01. cannot be found or refuses to
sign. If the deposition is not signed by the vitness within
30 days of its submission to him, the officer shall sign it
and state on the record the fact of the waiver or of the
illness or absence of the witnes . or tile fact of the refusal
to sign together with the reason, if any, given therefor;
and tile deposition may then be used as fully as though
signed unless on a motion to suppress under Rule 32
(d) (4) the court holds that the reasons given for the
refusal to sign require rejection of the deposition in vho1c
or in part.
Recor 1ing of the testimony has traditionally been
by regular stenographic means. In recent years increasing
resort has been made to non—traditional methods. Among the
recent series of amendments of the traditional rules ordered
by the Supreme Court, effective as of August 1, 1980
is an amendment liberalizing the provisions with respect ..c
non-traditional reporting of depositions upon oral examination.
In essence, Rule 30 has been amended to facilitate
electronic recording of depositions by permitting the parties
to stipulate, or the court to order, “that the testimony at a
deposition be recorded by other than stenographic means”. The
amendment also permits the parties to stipulate in writing, or
the court to order, “that a deposition be taken by telephone.”
A full discussion of the amendments appears in the Underwood
Supplement distributed together with these materials.
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(b) Some of the formalities of 30(c) and 30(e)
are often waived by stipulation entered into
at the coimnencement of the deposition and
set out at the beginning of the minutes.
A widely used form of stipulation, waiving
sorr’e of the formalities, is the following:
“IT IS HEREBY STIPULATED AND AGREED,
by and between counsel for the respective
parties hereto, that sealing, filing and
certification are waived; and that all
objections, except as to form, are reserved
to the time of trial; and that this deposi-
tion may be signed and sworn to before any
notary public with the same force and
effect as if before a judge of this court.”
The practice varies from area to area and
depends largely upon local customs of attorneys.
(c) What should or may he objected to concerning
or during the taking of the depositions? Objections are treated
in both Rule 30(c) and 32(d) (3) (A). Rule 32(d) (3) (A) states:
“As to Taking of Deposition.
(A)• Objections to the colnpentency of
a witness or to the compentency,
relevancy, or materiality of testi-
mony are not waived by failure to
make them before or during the tak-
ing of the deposition, unless the
ground of the objection is one which
might have been obviated or removed
if presented at that time.”
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The objection provisions of Rule 30(c) are
quoted above. The provision of 30(c) that, “Evidence objected
to shall be taken subject to the objections,” in no way weakens
the force of the provision of 32(d) rendering unnecessary “objec—
tons to the competency of a witness or to the competency, rele-
vancy or materiality of testimony . . .“ The clause covers
objections to the qualifications of an expert witness.
Determination of the objections which must or
should be made, and if not made are waived by 32 (d) (3) (B),
may be a problem. There is little law as to the meaning of
the phrase, “the form of the questions or answers ...“, or of,
“which might be obviated, removed, or cured if promptly
presented . . .“ This subject is treated in the discussion
which follows of techniques and tactics.
Cd) Court Controls of Depositions on Oral Examinations.
(i) Protective orders, specifically discussed e].sewher
are the basic vehicle for court control.
(ii) Rule 30(d) FRCP provides specifically for
motions to terminate or limit examinations on oral depositions:
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Cd) To TERMIN.tTJ OR LIMIT ELt I1N. TIo .-A
any tim 1 ’ i:: ing thc taking of thc dcpo ition, on
of a pariy r of the deponent and upon a showing t. at
the cx m I:. :ion i being conclw:tccl in bad faith or in st
manner :i :urea otiahly to annoy, embarrass, or oppr .s
the dcpon ’n: or party, the court in which the action:
pending or :‘ne court in the distrkt where the clepos b .
is being taken may order the oflicer conducting the
amination to eease forthwith from taking the deposi
or may limit the scope and maimer of the taking of.t 3
deposition : provided in Rule 26(c). If the order .
terminates the examination, it shall be resumed th_
after only upon the order of the court in which the ac
is pending. U pon demand of the objecting party or-di
ponent, t1ii taking of the deposition shall be suspen
for the time necessary to make a motion for an order_
provisions of Rule 3 (a)(4) apply to the award of 4
penses iiicurrt’L1 iii relation to the motion. .
(iii) Problems arising during the taking of
depositions with respect to the obligation of the deponent to
answer specific questions, requiring court determination of
whether they are within the proper scope of discovery, may be
determined by motions under Rule 37.’ia) PRCP
(a) MoTioN FOR ORDER COMPELLING DISCOVERY. A party,
upon reasonable notice to other parties and all persons
affected thereby, may apply for an order comnpellui g
d ’covery as follows:
(1) Approp; inte Court. An application for an
order to a party may be made to the court in which
the action is pending, or, on matters relating to a
deposition, to the court in the district where the
(lCpoSitjOfl is being taken. Au application for an
order to a deponent who is not a party shall be macic
to the court in the district where the deposition is
l)Cillg taken.
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(2) Motion. If a deponent fails to answer a ques-
tion propounded or submitted under Rules 30 or 31,
or a corporation or other entity fails to make a clesig-
nation 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
inspcction submitted under Rule 34, fails to respond
that inspection will be permitted as requested or
fails to Pclilut in pcction as requested, the discover-
ing party may move for an order compelling an
answer, or a designation, or an order compelling
inspection in accordance with the request. When
taking a deposition on oral examination, the pro-.
ponent of the question may complete or adjourn the
cxi mination before he applies for an order.
If the court denies the motion in whole or in part,
it may make such protective order as it would have
been empowered to make on a motion made pursuant
to Rule 26(c).
(3) Erasiue or Incomplete Answer. For purposes
of this subdivision an evasive or incomplete answer
is to be treated as a failure to answer.
(4) ilward of Expenses of Motion. If the motion is
granted, the court shall, after opportunity for hear-
ing. require the party or deponent whose conduct
necessitated the motion or the party- or attorney ad-
vising such conduct or both or them to pay to the
moving party the reasonable c pense incurred in
obtanung th order, including attorncys fees, unlcs’
the court thids that the op )osition to the motion was
substantially justified or that other circumstances
make an award of expenses unjust.
If the motion is denied, the court shall, after op-
portunity for hearing, require the moving party or
the attoritcy advising the motion or both of them to
pay to th• party or deponent who O])pO Cbd thc motion
thic reasonable cx ensc incurrcd in opposing the
motion, inch tiding attorney’s fees, unless time court
finds that the nmking of the motion was substantially
justified or that other circnm tLmce make an award
of cxpCfl—e mmju t.
If the motion i granted in 1 inrt and denied in part,
the court max- apportion the renionabic expenses
incurred i ii m elation to the motion among the parties
auth ner ons in a just man tier.
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b’ Depositions on written questions.
“ [ Rule 31] (a)
(a) SEP.VIXG QcEsrIoxs; NOTICE. After commencement
of the action, any party may take the testimony of any
person, including a party, by deposition upon written
questions. The attendance of witnesses may be compelled
by the use of subpoena as provided in Rule 45. Tbe deposi-
tion of a person confined in prison may be taken only by
leave of court on such terms as the court prescribes.
(1) Who may take depositions? “Any party may ...“
(2) What may be discovered? The scope of discovery
is as set forth in Rule 26(b), discussed under
“5” above.
(3) Of whozi? Whose deposition may be taken? “Any
persons including a party ...“ The deponent
may be a corporation.
(4) When may the deposition be taken? “After commence-
ment of the actions...”
(5) Where may depositions be taken? Reference is hereby
made to the discussjon of depositions on oral
examination, at b. (5), supra .
(6) How are depositions taken?
A party desiring to take a dcposition upon written 4ucs -
‘ti’ons shall .scrvc them upon every other party with a
notice stating (1) the name and address of the person
wiio is to aii.swcr them, if knowii, and if the name is not
known, a general description sufficient to identify him
or the particular class or group to which he bclong’ , and
(2) the name or descriptive title niul address of the officer
before whom the deposition is to be tak’n
Within 30 days after the notice and writtcu questions
rtc served, a party may serve cross qucstion upon nfl
other pai ties. Within 10 days fLcr being served with
cross questions, a party may serve rcdircct (1l1C5tiO11 UpOU
all other parties. Within 10 days after being served with
redirect questions, a party may serve rcero’ (I 1Io
Ul)Ofl nil other parties. The court may for cause shown
enlarge or liortci the tiinc.
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c. Interrogatories to parties. “(Rule 33 ] (a)
(a) Av. 1L. nIuTY; PROCCDt..BES T R USE. Any party may
serve upon aiiv othcr party written interrogatories to be
answered by the party served or, if the party served is a
public or private corporation or a partnership or associa-
tion or governmental agency, by any officer or agent, who
shall furnish such information as is available to the party.
Interrogatories may, without leave of court, be served U Ofl
the plaintiff after conuncnecincnt of the action and upon
any other party with or after service of the summons and
complaint upon that party.
(1) Who may take depositions? “Any party
may. . .
(2) What may be discovered? The scope of
discovery is as set forth in Rule 26(b),
discussed under “5” above.
(3) Of Whom? Interrogatories may be served
only upon “any other party’ .
(4) When may the interrogatories be served?
By defendant upon plaintiff “after
commencement of the action...” “ [ U]pon
any other party with or after service
of the summons and complaint upon that
party.”
(5) Where does the process take place? The
process is an exchange of papers between
attorneys, although the answers are
“signed by the person making them...”,
generally the party.
(6) How does the process operate?
Each interrogatory shall be a nswerccl separately and
fully in vriting under oath, unless it is objected to,in which
event the reasons for objection shall be stated in lieu of an
answer. The answers are to be signed by the person mak-
ing them, and the objections signed by the attorney
making them. The pa ty upon whom the intei rogatoi es
have beeii served shall serve a copy of the answers, and
objections if any, within O clays after the SCVVICC of the
interrogatoiies, except that a ckt nclant may serre answers
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or objections within 45 days after service of the summons
and complaint upon that defendant. The court may allow
a shorter or longer time. The party submitting the intcr-
rogatories may move for an order under Rule 31(a) with
respect to any objection to or other failure to answer an
interrogatory.
(c) OPTION To Pr.ODCCE 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 e nminatioii,
audit or inspection of such business records, or from a
compilation, abstract or summary based thereon, and the
burden of deriving or ascertaining the answer is substan-
tially the same for the party serving the interrogatory as
for the party served, it is a sufficient answer to such in-
terrogatory 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 ex-
amine, audit or inspect such records and to make copies,
compilations, abstracts or summaries.
(7) Other aspects of interroqatory practice.
(i) Local rules may sharply limit the
number of interrogatories and the number
of sets of interrogatories.
(ii) The number and complexity constitute
probably the most difficult aspects of
the administration of the discovery
process and the prevention of abuse.
(iii) The interrogatories may be addressed to
legal contentions and in such case
may properly be answered and the answers
signed by the attorneys.
(iv) The U.S. District Court for the Southern
District of Texas (Rule 12(B) (4)) permits
only “30 interrogatories in the aggregate,
including subparts, without leave of court.”
The U.S. District Court for the Western
District of Missouri (Rule 21(e)) permits only
“twenty interrogatories in the aggregate
without leave of court.” Rule 2(e).
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d. Production of Documents and Things and Entry
Upon Land
Rule 34, FRC?, provides:
Ruie 34. Production of Documents and Things and
Entry Upon Land For Inspection and Other Purposes.
(a) Sc0PE.—Any party may serve on any other party
a request (1) to produce and permit the party making
the request, or someone acting on his behalf, to inspect
and copy, any designated documents (including writings,
drawings, graphs, charts, photographs, phono-records,
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 in-
spection and measuring, surveying, photographing, test.
ing, or sampling the property or any designated object
or operation thereon, within the scope of Rule 26(b).
(b) PROCEDURE.—The request may, without leave of
court, be served upon the plaintiff after commencement
of the action and upon any other party with or after
service of the summons and complaint upon that party.
The request shall set forth the items to be inspected
either by individual item or by category, and describe
each item and category with reasonable particularity.
The request shall specify a reasonable time, place, and
manner of making the inspection and performing the
related acts.
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The party upon whom the request is served shall serve
a written response within 30 days after the service of
the request, except that a defendant may serve a respon
within 45 days after service of the summons and cow.
plaint upon that defendant. The court may allow a shorter
or longer time. The response shall state, with respect to
each item or category, that inspection and related activ.
ities will be permitted as requested, unless the request is
objected to, in which event the reasons for objection shall
be stated. If objection is made to part of an item or cate-
gory, the part shall be specified. 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 Nor PABTIES.—ThiS rule does not preclude
an independent action against a person not a party for
production of documents and things and permission to
enter upon land.
(1) Who may serve request?
“Any person may...
(2) What may be requested?
Documents (defined broadly to include all papers,
memos, notes, charts, graphs, and all data com-
pilations from which information can be obtained)
‘I
and other tangible things” which constitute or
contain matters within the scope of discovery
u .der Rule 26(b).
(3) Of whom?
The request may be made only of “any other parts’.”
(4) When may the request be made?
At any time after commencement of the action and
after service of the surn ons and complaint uoon
the party of whom the request is made.
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(5) There does the process take place?
The iequest is to specify a reasonable tire, place,
and i anner of raking the inspection.
(6) ow does the process operate?
S vtce of request followed by service of a
rcspo se to the request within 30 days, specifying
that ins3e.ction will be pernitted as requested Cr
is objected to. The requestin Party can challenge
the objections by a Rule 37(a) motion.
(7) The requirement of reasonable particularity.
The request must describe by iterts or category
with r awr.able particularity the docurienzs requested. See
Mallinc\ror t Cbe ’ical Works v. Goldman, Sachs & Co. , 58 F.R.D.
348 (S.t .N.Y. 1973). The test is whether a reasonable man would
know what c ocuments were being called for. Coo er v. Dasher,
290 U.S. 106, 109—110 (1933).
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(8) “Possession, custody or control.”
Onl docurnents within the “possession, custody
or control” of the party frcm whom the” are recuested need to
be produced. For a discussion of corporate responsibilities to
produce docuznents in the possession of other parts of a corporate
complex, see Service, Inc . v. Hartford Acc. & Ir.dern. Co. , 60 F.R.D.
632 (N.D. Ill. 1973). A private corporation Tray not maintain
records which are organized in such a way as tc make it imposs .ble
to retrieve relevant inforrt ation. See Kozlowski v. Sears,
Roebuck & Co. , 73 F.R.D. (D. Mass. 1976).
(9) Entry on land for the purpose of raking tests or
of observing “operation” of property or objects.
See Sladen v. Giritown, Inc. , 425 f.2d 24 (7th
Cir., 1970); Sperberq V. Firestone Tire & Rubber Co. , 61 F.R.D
80 (N.D. Ohio 1973); Morales v. Turman , 59 F.R.D.157 (! .D. Texas
1972); National Dairy Prods. Corp . v. L.D. Schreiber & (:o. , 61
F.P .D. 581 (E.D. is. 1973)
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(e) Physical and Mental Examination of Persons.
[ Editor’s note: Because this discovery method has such
limited applications to injunction and civil penalty actions,
reference is sii ply made to the chart set forth above and
to the text of Rule 35 FRCP].
(f) Requests for Admission.
Rule 36(a), FRCP provides:
(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 ithin the scope of Rule 26(h)
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 my
documents described in the request. Copies of documents shall be
served s ith the request unless they have been or are otherwise fur-
nisheil oz- made available for inspection and cop ing. The request may,
without leave of cout t, be served upon the i laintiff after commence-
ment of the acticn and upon any other party with or after sei vice of -
the summons and complaint upon that party.
(1) Who may make requests for admissions?
“A party may..
(2) What may be requested?
“ [ T)the admission...of the truth of any matters
within the scope of Rule 26(b)...” See “5” above.
(3) Of whom?
Requests for admissions may be served only upon
“any other party”.
(4) When may the request be served?
By defendant upon plaintiff “after conniencement
of the action. . .“ “Upon any other party with or after service of
the sur.mons and co l int u cn that oartv.”
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(5) Where does the process take place?
The process is an exchange of papers betueen
attorneys, the response consisting of a written answer or,ob-
jection “signed by the party or by his attorney”.
(6) H,w ó.es the .:.ce s •.era e? ule 3 ( )an ( )Fr vi
•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 reriue t, or within such shoi ter or longer time as the cow t
may allow, the p rty to whom the request is directed se es upon the
party requesting the admission a written answer or objection addressed
to the matter, signed by the party or by hi attorney, but, unless the
court sliui(eiis the time, a defendant shall not be requited to sen-c
answers or objections before the expiration of 45 (lays after service of
the summons and complaint upon him. If objection is niade, the
reasons therefor shall be stated. The answer shall specifically deny
the matter or set fot th in detail the reasons v. by the aiisw ci ing patty
cannot truthfully admit or deny the matter. A denial shall f.iiily meet
the sub t.t tcc of the requested admissi. n, nud when good faith re-
uires that a party qualify his answer or deny only a part of the
matter of which an admk ion is requested, he shall specify so much of
it as is true and qualify or deny the remainder. An answei lug party
-may not give lack of information or knowledge as i reason for failure
to atlznit or clciiy unless lie statc that he lm made i eas :i:ible inquiry
and that the information knowit or readily obtainable by him is in-
sufficient to enable him to admit or (leny. A p.uty who considers that
a matter of which an admission has been requested presentsngenuine
issue for trial may not, on that ground alone, object to the icc 1 uest; he
may. subject to the provisions of Rule 37(c). deny the mattet or set
forth reasons why he cannot admit or deny it.
The party who has iequestcd the admissions may move to determine
the sufficiency of the answers or objections. Unless the court tlctc’i-
mines 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 cither that the matter is
admitted or that an amended answer be served. The court may, in lieu
of these oidcrs, deteiminc that final disposition of thc request he made
at a pre-trial conference or at a designated time prior to Li ml. The
provisions of Rule 37(n) (4) apply to the aw.iid of expenses ipicuricil
in relation to thc motion.
(b) Effect of admission. rn jt1tcr admitted u;ik, thl
conclusiti’h- ost -thlkhe4 _ ttnlcss the cotut on motion pet nii sithdiaw-al
or amendment of the admission. Subject to the pro isiors of Rule 16
govet fling ameitcirnent of a pi c-ti ial order, the COLIl tinny ret mit with-
drawal ot’ amendment when the rrc cntation of the merits of the
action vill l,e ubset c c l thereby and the pat tv who obtained the ad-
mission fails to satisfy the cow t that withdi-awal or amendment will
prejudice him in maintaining his action ot- defense on the niet its.
Any admission made by a patty tindet this i iu 1 e is for the put pose of
the penili :n’t io n oiil - and is nut an acn.Ii ioii by him for an other
put pose not- mar it be used against him in any othri- proceeding.’
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(7) Other Aspects of Requests to Adi it.
Ci) Response that truth of matter can
neither be admitted or denied must be
accoznpanjed by detailed reasons why this
is so.
(ii) Admissions made in response to requests
are conclusive, as opposed to adr issions
in depositions, interrogatories or as part
of testimony at trial, which are merely
evidential.
(iii) Failure to respond is deemed an admission of
the matter encompassed by the request.
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5. The Scope of Discovery
The scope of discovery, that is, the bounds of the informa-
tion which may be sought by use of one or more of the discovery
methods, is the subject of Section (b) of Rule 26. Paragraph (1)
of that Section sets forth the general scope of discovery. Para-
graphs (2), (3) and (4) deal with some special types and sources
of information, to wit: “Insurance Agreements”; “Trial
Preparation : Materials”; and “Trial Preparation : Experts’.
Paragraph (1) of Rule 26(b) is set forth below:
“(b) Sco z or DISCOVERY. thiless 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 regard-
ing any matter, not privileged, which is relevant to thn
s1]bjec f matter iniojved in the neuding action . whether
it relates to the claim or defense of the party seeking
discovery or to the claim or defense of any other party,
including the existence, description, nature, custody, con-
dition and location of any books, documents, or other
tangible things and the identity and location of persons
having knowledge of any cliscoveral)]e matter. It is not
ground for objection that the information sought will
be inadmissible at the trial if the information sought
appears reasonably calculated to lead tothe discovery
of admksible evidence . “(Underscoring supplied)
The scope of discovery and the relationship of the inforr%ation
within that scope to the information within the Rules of Evidence
(and therefore admissible on trial) are best understood by
picturing two concentric circles, at the center of which are the
issues of fact joined by the pleadings.* The area within the inner
* Amendment of Rule 26 to restrict the scope of examination “to issues
raised by the claims or defenses of any party” has been proposed by
the American Bar Association. That proposal is discussed later in
this section.
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circle represents the information relevant* and admissible upon
trial under the Rules of Evidence. The area within the outer
circle, including, of course, the area within the inner circle,
represents the information within the scope of discovery.
Excluded from admissibility under the Rules of Evidence
and from the scope of discovery, is the information falling
within any of the rules of privilege, that is, “any matter, not
privileged.” The exclusion is precisely the same for purposes
of both admissibility upon trial and defining the scope of
discovery. In addition to privileged information, certain other
bodies of information are prima facie excluded from the scope
of discovery (from the area within the outer circle) but may be
included if a sufficient showing is made of the need for such
information. The showing necessary for the most important such
body of information, attorney’s work product and other material
prepared for litigation, is “a showing that the party seeking
discovery has substantial need of the materials in the preparation
of his case and that he is unable without undue hardship to obtain
the substantial equivalent of the materials by other means.”
(Rule 26(b) (3))
“(F]acts known and opinions held by experts, otherwise dis
coverable under the [ statement of the general scope of discovery
* Rule 401 of the Federal Rules of Evidence (“FRE”) defines
“Relevant Evidence” as follows:
“Relevant evidence’ means evidence having
any tendency to make the existence of any
fact that is of consequence to the determina-
tion of the action more probable or less
probable than it would be without the
evidence.”
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in Rule 26(b) (1)” are also subject to special restrictions,
set out in paragraph (4) of Rule 26(b).*
Any information within the scope of discovery may be excluded
from the discovery in any particular case in and by a “protective
order”, provided for in paragraph (c) of Rule 26. The Court may
order “that certain matters not be inquired into, or that the
scope of the discovery be limited to certain matters,” as
“justice requires to protect the party or person from annoyance,
oppression or undue burden of expense ...“
Since information within the scope of discovery need not be
within the scope of evidence upon trial, there must be a
mechanism for application, upon trial, to information or other
material discovered, of the Rules of Evidence. That mechanism
screens the information secured by discovery, the screen being
the Rules of Evidence. It moves the information which satisfies
the Rules of Evidence from within the area of the outer circle
to within the area of the inner circle. With respect to the
minutes of depositions, both oral and upon written interrogatories,
that mechanism is provided by Rule 32.***
The vastness of the sweep of the discovery rules and of the
power conferred upon attorneys using the tools of discovery in the
federal courts should be readily understood. It is difficult in
* Discovery directed to adverse parties’ experts is discussed
in Chapter IVof these materials.
** Protective orders are the subject of section 6 below.
*** This subject is discussed in section 6 below.
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most cases of any complexity, environmental or otherwise, to
argue that any information which bears any relationship to the
subject matter of the lawsuit is outside of the scope of discovery.
This is because any information is within the scope of discovery
if it is “calculated to lead to the discovery of (any other
information]” which has “any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without (such fact].”
The vastness of the body of information within the scope of
discovery is a principal factor in the growth of practices which
the American Bar Association and many other responsible groups
and individuals concerned with the litigation process in the
federal courts have determined constitutes in many cases abuses
of the discovery process. Studies by a special committee of the
American Bar Association of the abuses of discovery have received
wide attention, including consideration by the Committee on Rules
and Practice and Procedure of the Judicial Conference of the
United States and its Advisory Committee on Civil Rules, and
the Supreme Court.*
As stated in the 1980 supplement to the ALl—ABA “Guide to
Federal Discovery Rules” prepared by James L. Underwood of the
* See Section of Litigation, American Bar Association, Report
of the Special Committee for the Study of Discovery Abuse
(Oct. 1977) [ hereinafter cited as ABA Rep.] See also Spann,
President’s Page, 64 A.B.A.J. 157 (Feb. 1978).
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University of South Carolina School of Law:*
In October 1977 a blue ribbon committee of the American Bar
Association issued a clarion call for sweeping changes in the scope
and methodology of the Federal Discovery Rules. The report
cogently asserted that the use of discovery as a dilatory tactic had
significantly escalated the cost of litigation, had delayed the just
consummation of cases, and had bludgeoned parties into undesirable
settlements. The report argued that so pervasive and deep-rooted
was the malignancy of dilatory discovery that it could be removed
only by radical surgery.’
To curb the abuse of discovery, several significant changes in the
discovery rules were recommended. The most prominent change
was the restriction in the scope of discovery from the present
formulation found in Rule 26(b)(1), which permits the discovery of
non privileged information that is ‘. . . relevant to the subject matter
involved in the pending action . . .“ to a narrower ambic, that is, to
information “. . relevant to issues raised by the claims or defenses
of any party. ”
The Supreme Court in its rule changes, effective August ].,
( 1980, did not adopt the ABA recommendation that Rule 26 be
changed so as to define the scope of discovery in the terms of
relevency “to the issues raised by the claims or defenses”,
instead of relevency “to the subject matter” of the “pending
action”. As stated by Professor Underwood:
“In its Advisory Committee Note accompanying the
new Rule 26(f), the Committee expressed a belief
that a change in the scope of discovery for all
categories of cases is not warranted but that
discovery has been perverted into dilatory
channels in some varieties of cases. The ideal
solution is one that permits greater judicial
invo].verrtent through a discovery conference in the
problem case but leaves the scope of discovery
untouched as to others. Thus the note states:
* The supplement is hereinafter referred to as the “Underwood
Supplement.”
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The Committee believes that abuse of disco erv. while very serious in
certain cases. is not so general as to require such basic changes in the rules
that gosern discu ery in all cases A very recent study of disco ery in
selected metropolitan districts tends to support its belief P Connolly. E.
Holleman & M Kulman. Judztzal Controlj arid the C:uil Litigation Process
Dijcouer (Federal Judicial Center. 1978) In the judgment of the Com-
mittee abuse can best be pre enLed by intervention by the court as soon
as abuse is threatened
Discussion of section (f) n’ay be found in the Underwood
Suppler ent, copies of which are distributed with these materials.
By wide margins, questions of the scope of discovery involve
most frequently matters of privilege and work product. The subjects
are treated exhaustively in the several federal practice treaties
and it is not the function of these materials to discuss the reported
cases. Reference is hereby made to the Supreme Court case of
Upjohn , et al. v. United States , et al., decided January 13, 1981,
copies of which will be distributed and which will be discussed
at the work sessions of this training program. In Upjohn , the
Supreme Court rejected a narrow “control group test” as the
determinant of the scope of the attorney-client privilege.
To the practitioner of discovery proceedings, perhaps the
most important of all aspects of the attorney—client privilege is
that the privilege does not arise simply because the attorney
is the person possessed with information or documents. Nor can
documents be turned into attorney’s work product simply by turning
them over to him or by the mere fact that he has prepared the
documents. Some practical and tactical aspects of privilege and
work product problems arising during the course of depositions on
oral examination are discussed below.
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6. Rulings on Discovery Matters; Protective Orders
and Sanctions
The law of discovery is essentially the text of Rules 26-37
of the Federal Rules and the reported decisions thereunder. Most
discovery decisions stating and applying discovery law are
rendered on motions for protective orders or motions under Rule
37 for “Sanctions for Failure to Make Discovery”.
The basic “protective order” provision is Rule 26 Cc),
the text of which follows:
(c) PROTECTIVE ORDERS Upon motion by a party or by the
person from whom discovery is sought. and for good cause
shown, the court in which the action is pending or alterna-
tively, on matters relating to a deposition, the court in the dis-
trict where the deposition is to be taken may make any order
which justice requires to protect a party or person from an-
noyance, embarrassment, oppression, or undue burden or ex-
pense, including one or more of the following: (1) that the dis-
covery not be had; (2) that the 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 oniy 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 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, develop-
ment, or commercial information not be disclosed or be dis-
closed only in a designated way; (8) that the parties simulta-
neously file specified documents or information enclosed in
sealed envelopes to be opened as directed by the court.
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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 person provide or permit discovery.
The provisions of Rule 37(a)(4) apply to the award of ex-
penses incurred in relation to the motion.
Rule 37 provides for a series of sanctions for the failure
of a party or other person to discharge its duty of disclosure in
connection with any discovery proceeding. A party seeking to
enforce such a duty of disclosure may seek an order compelling
disclosure, that is, an order compelling a party to answer
questions or interrogatories to to produce documents for inspection,
or he may seek an order imposing a sanction for failure to comply
with an order. The sanctions are set out in Rule 37 (b) (2). If a
party fails altogether to testify at a deposition, or to serve
answers or objections to interrogatories or to serve a written
response to a request for production of documents, sanctions may
be imposed, under Rule 37(d), similar to those for failure to obey
an order.
Several particular aspects of the manner in which discovery
law is made and applied and the manner in which discovery matters
come before courts for rulings, are important in understanding the
nature of that law, to the extent that law is what courts and
parties and their attorneys will follow.
Decisions under Rules 26—37 are seldom by Courts of Appeals,
and the number of Supreme Court discovery cases is very small.
This is because discovery rulings are almost always interlocutory
and thus not appealable in the federal courts. This is accordingly,
much less “prect dent” binding the courts than in many other fields
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of law, substantive and adjective.
Decisions of district court judges and magistrates on
discovery matters are often rendered on a number of disputed points
which are argued and decided together. Compromise and rough
equity are the basic objectives as much as consistency of rulings
with precedents set out in prior cases and in authoritative
treatises.
The rulings are generally based upon particular questions,
demands for particular documents and particular conduct by attorneys
or parties. Probably a majority of discovery rulings are by
magistrates rather than by district judges.
The local rules of most federal district courts contain
special provisions for the conduct of discovery proceedings*,
particularly for the means by which discovery disputes are to
be resolved. Individual judges also frequently promulgate their
own rules for various pre—trial matters, including discovery.
The practice of discovery proceedings is particularly dependent
upon the attitudes, habits and practices, constituting a kind of
attorneys’ folklore, of attorneys in different regions of the
nation. Matters which are often disputed, for example, in
large metropolitan areas of the Northeast and Midwest may not
be disputed in other areas.
All of the foregoing facts operate to render precedent and
A widespread type of rule is one which limits the number of
interrogatories to parties under Rule 33, in the absence of order
of the Court.
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reported authority less important in the resolution of discovery
questions than general equities and the attitudes of judges or
magistrates toward the parties and their attorneys. This
fundamental aspect of the law of discovery is important in evolving
tactics and technqiues in the argument of discovery motions and
other discovery applications.
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7. The Purposes and Cross—Purposes of Discovery; The Choice of Methods
The decision of whether or not to institute discovery proceedings,
(which this writer believes is almost always best answered in the
affirmative unless one believes that a motion for sux’inary judgment
‘or other motion that will determine the action can be made without
any discovery), must be based upon an understanding of the purposes
of discovery. So, too, must the decisions of what discovery
methods are to be used, how to conduct each proceeding, and how
to resist discovery by an adverse party.
The most fundamental purpose of discovery is preparation for
trial. Each party is to be apprised as fully as possible of the
proof in the possession of the other party. Many other functions
are served, however, by discovery. Some of them may be deemed
benefits of the process, as stated by Moore in his Federal
Practice treatise (hereinafter “Moore”), Vol. 4, §26.02(2]
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1. It is of great assistance in ascertaining the truth and in check-
ing and presenting perjury.’ The reasons for this are:
(a) The witness (including a party) is examined while his mem-
ory is fresh.
(b) The witness (including a party) is generally not coached in
preparation for a pre-trial oral examination with the result that
his testimcny is likely to be more spontaneous. ‘Where the exami-
nation is upon written interrogatories, however, it appears that
some lawyers furnish the witness with copies of the interrogatories
and thereby enable him to prepare his answers in advance. 2
(c) A party or witness whose deposition has been taken at an
early stage in the litigation cannot, at a later date. readily manu-
facture testimony in contradiction to his deposition.
(d) Testimony is preserved, so that if a witness unexpectedly dies
or becomes unavailable at the trial, his deposition is a ailable.
2. It is an effective means o1 detecting and exposing false, fraudu-
lent, and sham claims and defenses.’
3. It makes available in a simple, convenient, and often inexpen-
sive way facts which otherwise could not have boen proved, except
ith great difficulty and sometimes not at all.
4. It educates the parties in advance of trial as to the real value
of their claims and defenses, thereby encouraging settlements out
of court.’
5. It expedites the disposal of litigation, saves the time of the
courts, and clears the docket of many cases by settlements and
dismissals which otherwise would have to be tried
6. It safeguards against surprise at the trial, prevents delays, and
narrows and simpIi es the issues to be tried, thereby expediting the
trial. 6
7. It facilitates both the preparation and the trial of cases
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Restating slightly the “benefits”* of a liberal discovery
practice furnishes a concise list of the purposes for which
discovery proceedings may be conducted:
].. to prepare for trial;
2. to prepare for hearing (whether it be
on papers only or with evidence taking or oral argument)
of a motion;
3. to secure material for the making of a summary
judgment or other motion;
4. to preserve testimony of a witness who may
die or fall ill, be outside of the area of effectiveness
of a trial subpoena, or otherwise be unavailable on trial;
5. to ascertain the weaknesses of one’s own case;
6. to understand more clearly the issues of fact
and of law and the claims and theories of an adverse party;
7. to save trial time;
8. to secure the testimony of a witness while
the witness’ recollection is fresh;
9. to narrow and simplify the issues; and
10. to secure information for the re-statement,
by way of amendment or supplement, or pleadings.
* The “benefits” may also be said to constitute the disadvantages.
Use may be abuse, and such abuse of discovery procedures and
rules is presently the single most important problem before
the Committee on Rules of Practice and Procedure of the Thdicial
Conference of the United States and before the Supreme Court in
its consideration of amendments to the Federal Rules. See,
Underwood Supplement.
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It is clear that many of the purposes set forth above are
cross-purposes. One of the most frequent and acute tactical
problems in the conduct of discovery proceedings arises out
of the incompatability of conducting discovery to secure the
most thorough preparation for trial and the conduct of the
same discovery to induce the most favorable settlement. From the
standpoint of preparation for trial, and possibly preparation for
the making of or opposition to a summary judgment motion or
motions, it is critical to secure the knowledge of the unfavorable
evidence in the possession of the adverse party. Indeed, securing un-
favorable evidence is often far more important than securing favor-
able evidence. Recording of the unfavorable evidence, however,
may expose the weakness of one’s own case and thus inhibit
favorable settlement.
Closely related to the problem of whether or not to discover
unfavorable evidence is the problem of whether or not an adverse
party, on deposition on oral examination or by another discovery
method, should be confronted with weakness in such adverse party’s
position, by cross-examination or otherwise. On the one hand it
may be best to postpone such confrontation until trial, not
permitting the adverse party to prepare for the confrontation.
On the other hand, the confrontation during discovery may be a
powerful weapon in educating the adverse party concerning the
weaknesses of its case and precipatating a favorable compromise
and settlement.
The important aspect of the conduct of the proceedings is
the realization of the incompatability of some of the purposes,
and the making of the most educated choice as to which purposes
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the discovery should serve. The choice may be at best an educated
guess, the most important element of the choice being the
prediction of whether the case will go to trial. In the
experience of this writer the determination in most environmental
and other civil actions of a corporate or commercial nature has
been to a) pursue the most thorough discovery possible and
secure all of the information possible within the possession
of the party or witness from whom discovery is sought, both
favorable and unfavorable; and b) confront the adverse party with
the weakness of its position, by as thorough cross-examination as
would be conducted upon trial.
Analysis of the purposes to be served by any particular
discovery is important in determining at the outset of an action
the nature of the discovery proceedings to be instituted. In
a number of cases, the choice may not be a free one because of
the nature of proceedings taken by the adverse party. Of
critical importance in determining the nature of discovery
proceedings is the determination to make or not to make a preliminary
injunction motion.
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The right to “obtain discovery by one or more of the
[ several] methods” creates a corresponding duty to choose the
most effective method or methods. Which one or more of the
methods should be used and for what information, when, and
against whom should they be used?
There are no ready formulas by which the choices can be
made. The judgment in each action and at each point in the
progress of an action at which the choice is or can be made
depends upon the application of a number of different factors,
the most important of which are the strengths and weaknesses
of each discovery method. Some aspects of those strengths
and weaknesses are noted below.
1. For confrontation of an adverse party or hostile
witness, deposition on oral examination is by far the
most effective.
2. The superior method of discovery is Rule 33 interrogatories
for examination into evidentiary facts which are of
record, or are detailed, or require research or reference
to documents, or into facts as to the location or identity
of documents or witnesses, or into facts which are not really
in dispute. Since the answers are set out in writing and
are prepared or edited and often signed by the attorneys,
they are also less subject to denial or amendment at a
later stage.
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3. Consumption of time and expense may be factors
in the choice of methods of discovery. Deposition on
oral examination is an expensive process, costing
(assuming, for example, one senior or semi—senior
attorney questioning the witness, assisted by one
junior attorney) upwards of $1,500.00 per day.
4. The skills and experience necessary for
effective conduct of the discovery by one method may
differ from those of the discovery conducted by
another method. Preparation of detailed and effective
notices to produce documents or Rule 33 interrogatories,
or of written interrogatories to be propounded of a
witness under Rule 31, does not involve the forensic
talents and skills of oral depositions. Much of the
work of drafting and perfecting the written interro—
gatories may be delegated to paralegals or to persons
more expert in the facts, or to other lawyers. The
choice of discovery method may be determined by the
availability of different personnel. The relatively\
easier availability of EPA personnel as compared to
Department of Justice attorneys may determine the
discovery method.
5. Litigation of the propriety of interrogatories
to parties under Rule 33 is more frequent and likely
than litigation of the propriety of questions on oral
depositions, because of the built—in provision for
objections and the time available for objections.
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6. Depositions on oral examination much more
often lead to the negotiation of settlements. The
very process of the attorneys being together, in the
organized and generally courteous kind of combat
under the Rules which attorneys understand, leads
often to discussion of settlement. The very camaraderie
of the attorneys, the pressures upon the party-witnesses
of the depositions, the consumption of the parties’ time,
the realization of the expense, the physical wear and
tear of the testimonial process, concern of witnesses
over rendering unfavorable testimony or other embarrass-
ment (including coming out or seeming to come out the
loser in what may be regarded as a game of wits), and
the sheer unpleasantness of the surroundings or of the
personalities of opposing parties or lawyers — all of
these factors may impel parties or corporate (or
governmental) officials to retract hard positions.
Whatever the burdens of disclosure may be under
interrogatories, those burdens may be delegated to the
attorneys and postponed for another day.
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8. Whether and When to Institute Proceedings.
Whether discovery should be sought by counsel for the
Environmental Protection Agency (“EPA’ 1 or “Agency’) in enforcement
or other actions is in most cases a rhetorical question. In
virtually every action discovery is essential. Moreover, if
for one or more reasons Agency counsel might be at an advantage
if neither party conducted any discovery proceedings — perhaps
because the Agency, without discovery proceedings by either
party is better prepared for trial than the adverse party — that
adverse party will in all likelihood be instituting such proceedings.
In almost all cases it is advantageous to institute discovery
as soon as possible, which can generally be simultaneously with
the commencement of the action. Priority in discovery, the post-
ponement of one party’s proceedings, particularly depositions upon
oral examination, until the other party has completed or reached
a certain stage in its proceedings, was largely abolished in 1970
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by the addition of subdivision Cd) to Rule 26*. There is still,
however, a certain small priority accorded defendants with respect
to depositions upon oral examination, in that the plaintiff may
not, without leave of court, take a deposition upon oral examina-
tion “prior to the expiration of 30 days after service of the
summons and complaint upon any defendant ...“
The plaintiff may, however, institute each of the other types
of discovery proceedings immediately upon commencement of the
action. Particularly effective in indicating the seriousness of
the action and securing the other advantages of vigorous prosecu-
tion are the service of interrogatories under Rule 33 and notices
to produce documents under Rule 34 with the service of the summons
and complaint. Moreover, if for good reason, answers to
interrogatories or the production of documents should be accelerated,
application can be made to the court for an order compelling such
expedited answer or production. Such expedited discovery may be
sought to ascertain, for example, what activities are being conducted
by a defendant which might render necessary, or unnecessary, a
motion for a preliminary injunction.
Leave of court can be sought for the commencement by plaintiff
of oral depositions in advance of the expiration of the 30 day
* The subdivision reads:
“Cd) Sequence and Timing of Discovery. 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, shall not operate
to delay any other party’s discovery.
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period of Rule 30, if good reason exists, e.g., the imminent
departure of a witness from the jurisdiction. The mere achievement
of priority is not sufficient reason for accelerating the
plaintiff’s commencement of depositions.
Discovery may be important or useful, and the commencement
of it at the outset of an action necessary, to secure evidence
for use upon a preliminary injunction motion. Depositions and
other materials produced or secured by discovery may be used
not only upon “the trial” but “upon the hearing of a motion or
an interlocutory proceeding.” Rule 32(a) One of the most frequent
uses of depositions or other discovery materials is, of course,
in the making or opposition to a summary judgment motion. The
evidence placed before the court on such a motion must satisfy
the Rules of Evidence.
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9. Tactics on Oral Depositions
a. Introduction
There exists a large legal literature on trial tactics.
A much smaller body of literature exists concerning tactics
on the taking of depositions upon oral examination, and other
discovery proceedings despite the fact that the latter may fairly
be said to be equally or more important, if only for the reason
that in the majority of environmental, corporate or commercial
cases, oral depositions are taken and the majority of cases
are not tried. Moreover, in environmental cases particularly,
much of the trial is putting in evidence documents produced
during discovery under Rule 34, interrogatories and answers
thereto and admissions developed under Rules 33 and 36, and the
minutes of depositions on oral examination or on written inter—
rogatories. The trial consisting primarily of putting such
items for evidence is often referred to as a “paper case”.
Depositions are far less dramatic than evidence taken at
trial. The process is less demanding, physically and emotionally,
upon the attorneys and witnesses, in large part because it is
carried on outside of the presence of the Court. There is,
nevertheless, a whole set of problems, tactics and techniques
which appear and can be used on the depositions, and the impor-
tance of the understanding of and the ability to combine suc-
cessfully a number of different tactics and techniques is as
great as in the case of trials.
The tactics and techniques on the taking of depositions
upon oral examination, as are trial tactics and techniques,
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are to a large extent governed by the experience, habits and
personalities of the attorneys employing them. There is no
clearly correct or incorrect method to deal with the particular
problems and aspects of the oral disposition process discussed
below. The discussion which follows is, of course, based upon
the writer’s experience over a number of years. The organiza-
tion of the several different aspects of the taking of oral
depositions is in part arbitrary, and the order in which they
are discussed below is not necessarily the order of
importance.
b. Whose Deposition Should Be Taken?
In large part the determination of who shall be examined
is based, of course, upon the evideritiary needs of the party
conducting the examination and upon the other purposes of the
discovery sought. An attorney will generally want to discover
as much of the adverse party’s case as possible in order to
meet it upon the trial or attempt to dispose of it on a summary
judgment or similar motion. Depositions of certain persons
upon oral examination may also be necessary because the depo-
sition process is the only way of adducing the testimony of such
persons for trial. If a witness must be subpoenaed to compel
his testimony that witness must be within the area of the
effectiveness of a trial subpoena —— within the district of the
Court trying the case or within 100 miles of the courthouse if
outside the district. If it is clear or likely that a particu-
lar witness will not be subject to a trial subpoena at the time
of trial, that witness’s deposition muEt be taken and the
minutes of the deposition put in upon tiral. There is no
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special provision under the several federal environmental
statutes, as, for example, there is under federal anti—trust laws,
for service of trial subpoenas outside of the areas of service
of subpoenas generally. The process for compelling the appear-
ance of a deposition witness by subpoena is described in Section
4a(ii), above.
Whether a witness will voluntarily testify upon trial or
be at the time of trial within the area which a trial subpoena
may be served upon him may not always be clear. In cases where
it is not clear a judgment may have to be made as to the impor-
tance of the testimony. The importance of the testimony may
have to be weighed against the cost, or other problems, in
the taking of the deposition in a distant place. Those costs
may include the costs of travel of an adverse party’s attorney
to the place of the taking of the deposition and also the
reasonable counsel fees of such adverse party’s counsel. The
conditioning of the taking of depositions outside of the dis-
trict in which an action is pending is one of the most frequent
subjects of motions for protective orders. If the expenses or
other problems in the taking of the deposition upon oral exami-
nation inhibit its taking, the examination may be on written
interrogatories.
Whose deposition shall be taken frequently involves the
question of whether a deposition should be that of a corporate
party by an officer or managing agent, or of such officer or
managing agent or other employee individually. If the depo-
sition is of the corporation by an officer or managing agent,
there may be a choice of several such officers or agents.
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If a deposition is taken of a corporate party, or a gov-
ernmental agency, that corporation or agency generally has the
right, in the first instance, to designate the managing agent
by whom it is to testify. Frequently, the party taking the
deposition does not know who of the officers or managing agents
of the corporate party or governmental agency has knowledge of
the facts and circumstances of the proposed examination. In
such case, to avoid the waste of resources involved in taking
the examination of persons who may have no or little knowledge
of such facts and circumstances, use should be made of the pro-
visions of Rule 30(b)(6). Under 30(b)(6), the party taking the
deposition may describe the matters on which the examination is
requested, and thrust upon the corporation or agency the respon-
sibility of designating the person who shall testify.
A factor in determining by whom a deposition shall be taken
is, of course, the office, standing and importance of such person.
The higher the office, the greater the burden of the deposition.
Moreover, the higher the office, in this writer’s experience, the
more probable it is that the witness may look upon the taking of his
deposition as a contest or game or battle of wits between himself
and the attorney examining him. Time after time this writer
has observed corporate and governmental officials who, disregarding
the most basic instructions by their own counsel, do regard
their testimony upon deposition or upon trial as such a contest
with the adverse party’s attorneys. If such a contest of wits
does develop, in almost all cases even the only moderately
competent trial attorney has most of the advantages.
b. When The Deposition Should Be Taken
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The virtual elimination of priority as a factor in dis-
covery proceedings and some other aspects of when discovery
proceedings may be had have been discussed above. Some tac-
tical choices may be made in determining when depositions
should be taken considering the factors of: the time of day, the
day of the week, the season of the year, and the proximity of the
trial. A witness from whom one expects fairly valuable ad-
missions should, if one is looking to the disposition of the
action by summary judgment motion or settlement of the action,
be examined very early in the discovery process. He and his
attorney will then presumably be less guarded in his testimony
because they are less educated in their knowledge and under-
standing of the litigation. If one is looking to trial, other
factors being equal, the examination should be later in the
process.
c. Where The Deposition Should Be Taken
Depositions may be taken at several different places with
the choice generally being made by the party taking the depo-
sition. Where the deposition is to be taken may be the subject
of a motion for a protective order.
There are a number of considerations involved in deter-
mining the place of the taking of the deposition, some working
at cross purposes. The deposition of a corporate official may
be most effective in that corporation s offices, in order to
have ready access to documents referred to and have them copied
as they are produced during the taking of the deposition. A
corporate official, of course, feels more at ease in his own
office, and the attorney taking the deposition may feel that
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his being at ease will increase the probability of admissions
and other valuable testimony. Taking the deposition of a cor-
porate official in his own office, on his own “turf”, with his
own staff and the opportunity to occasionally interrupt for
other corporate business, is often seen as an act of friend-
liness and courtesy which softens the entire litigation process.
It may precipitate or advance settlement discussions which so
often begin and take place during the course of depositions.
Taking the deposition of a corporate official in a court-
house may be a factor in securing admissions or precipitating
settlement. The very fact that a high corporate or govern-
mental official must go to the courthouse to testify, particu-
larly if the rooms available are very bare and plain and in some
cases unpleasant, may create in the official resentment or anger,
which is almost always a disadvantage to the witness.
Another factor involved in the choice and place of depo-
sition is the ready availability of the judge or magistrate for
rulings during the course of taking the deposition. The exami-
ning attorney may want or not want such ready availability.
Most frequently, of course, depositions take place in the
attorney’s offices, but the choice should not be automatic.
Consideration should be given the other possibilities and
factors involved.
d. Organizing Materials for the Taking of the Depositions.
It is self-evident that the documents and files of the
attorney taking the deposition should be as well organized as
possible before the taking of the deposition. This is important
not only for the effectiveness of the deposition itself, but for
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the demonstration given to the adverse party testifying and
his attorneys, or other witness of the general efficiency of
the examining attorney. An important factor in the negotiation
of settlement is almost always the appraisal made by attor-
neys and parties of those with whom they are litigating. The
oral deposition is often the first demonstration of organiza-
tion and effectiveness. A showing of efficiency may go a good
way toward creating an atmosphere for settlement discussion.
How the documents, memoranda and other materials should be
organized for the taking of a deposition depends to a large
extent on the individual attorney’s habits and style. Reference is
hereby made to the discussion elsewhere in these materials of
trial notebooks. This writer has found particularly helpful,
in cases of some complexity, a chronological narrative of all
or most of the events and circumstances involved in the subject
matter of the action. Such a chronology can generally be pre-
pared (often, in large part, by paralegals or other non-attorney
personnel) by noting on index cards or other papers each and
every document, event or circumstance and then placing the cards
in chronological order and dictating a statement of each event
based upon each card. Such a chronology can be prepared at
the outset of an action and supplemented as new information is
developed, by discovery proceedings or otherwise.
Whether questions should be prepared in advance is a
matter of style. Most trial attorneys, including this writer,
do not do so, but do prepare detailed outlines of the subject
matters of examination. As each subject matter is dealt with,
appropriate notes can be made by the attorney asking the
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questions or an associate working with him.
e. How the Deposition Should Proceed.
There are several different courses which may be followed
in the taking of the deposition. The choice may be deter-
mined by the particular needs of the case, by the attorney’s
judgment concerning the witness, or by the personal habits and
style of the attorney conducting the examination. Among the
ways of proceeding are the following: (1) following a strictly
chronological order in the questioning, the questions begin with
the very earliest evidence involved in the subject matter of
the action and proceed to develop the information chronologically;
(2) to conduct the questioning by following the pleadings, with
respect to the issues of fact, paragraph by paragraph, and
sentence by sentence or phrase by phrase within each paragraph.
This process can be very grueling and tiresome for a witness.
It can be particularly effective in examining a party with re-
spect to its affirmative claims or counterclaims. The very
thoroughness of the search for each and every item of information
that may lead to the discovery of every conceivable item of
evidence can be overwhelming.
Moreover, although a party or any particular witness is
not charged with the obligation to have personal knowledge of
each event or circumstance involved in the action or for the
personal command of the proof of each allegation, that impres-
sion may be conveyed to a witness by this course of questioning.
The witness may feel eznbarassed over the weakness of his case
because he does not have readily in his possession the factual
proof supporting each allegation made by him or his corporation
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or government agency. (3) The order in which subject matters
are covered in the deposition may be chosen to secure admissions.
If early in a deposition a witness is requested to make what
seemed to be important or damaging admissions, his composure
may be rattled and further helpful testimony may follow readily.
The selection of the order of items of examination,other
than a strictly chronological order or by following the alle-
gations of the pleadings, may be made on many other bases. An
effective technique may be to seem to have little or no order
or organization, but seemingly move about from one subject
matter to another,rapidly and without any logical basis. This is
particularly effective with the witness who attempts to answer
questions in ways which he believes favor his position, vio-
lating the most fundamental instructions given by most trial
attorneys. Often such a witness becomes completely confused by
a seemingly disorderly process of examination because the witness
does not know what the questioner is aiming at, and thus cannot
determine how to shape the answers. On a number of occasions
witnesses puzzled by this writer’s examination in a seemingly
disorderly manner have commented, “I don’t know what you are
aiming at”, or “I don’t know what you are looking for”, in
answer to a question. It is particularly effective with such a
witness to respond quickly and strongly, “You are not supposed
to know what I s in aiming at; just tell the truth!”.
The important principle to bear in mind is that the choice
of subject matters and the order in which they are pursued is
as important in the taking of an oral deposition as it is upon
the trial of an action, to the extent that the purpose of the
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deposition is favorable testimony for use in settlement dis-
cussions or upon trial. If the major purpose of the examination
is pure discovery, that is, seeking information, favorable or
unfavorable, in order to prepare one’s own case, the best way
to proceed is in a chronological or other simple and orderly
fashion.
In any event, and whatever the choice the examining attorney
makes of the means of determining the order of questions it is
almost always best, in this writer’s experience, to begin an
examination by detailed questioning of the witness as to his
own position, duties, responsibilities and knowledge of the
evidence of the case. This is followed by detailed examination
as to the existence, location, labelling and organization of
files. Such examination may begin with the simple question of
“What is your filing system?”
In most cases the files will be differently organized at
the time of the lawsuit than they were at the time of the
evidence involved in the lawsuit. Following through with
questioning as to the changes in the files is a very effective
method of locating them. It is also often a very effective
method of disconcerting a witness. The mere fact that files
have been changed, or some destroyed, or that files have been
delivered to the attorneys or in any other way or ways changed,
seemingly casts some suspicion on the party who has effected
such changes. What this writer believes to be a fairly inter-
esting examination of this nature is set forth in the excerpts
from the minutes of a recent examination (in a non—environmental
action) conducted by the writer.
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The choice of subject matters and the order in which the
subject matters are considered in examination may be dictated
to a large extent by the relationship of the examination to
other discovery proceedings. Elsewhere in these materials
is a discussion of the choice and timing and combination of
several different methods.
f. Stipulations With Respect to the Conduct of the Deposition.
The exact mechanics for the taking, recording and filing
of depositions on oral examination are set forth in Rule 30,
and have been discussed above. In the vast majority of cases
there is some stipulation to dispense with some of the mechanics.
In the metropolitan New York area there appears to be a “usual
stipulation”, the text of which follows:
“IT IS HEREBY STIPULATED AND AGREED by
and between the attorneys for the representative
parties hereto, that the witness may sign and
swear to his deposition before any notary public;
that sealing, filing and certification are waived;
and that all objections except as to the form of
the question are reserved to the time of trial.”
Needless to say, the matter of stipulating away some of the
mechanics should not be a mechanical process. It may not be
advantageous to permit the signing of the minutes by the witness
before any notary. It may be an advantage to have the minutes
of the deposition on file in the courthouse. Stipulating as to
the reservation of objections for trial is, in the opinion of
this writer, unnecessary and pointless. What objections must
be made upon the deposition and what may be reserved for trial
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is elsewhere discussed in these materials.
Consideration should be given to some stipulations which
do not appear in the “usual form”, including (1) a stipulation
that objections to the form of questions may be reserved for
the trial; (2) a stipulation that motions to strike an answer
or any portion of an answer need not be made during the course
of the deposition, but may be reserved for trial; (3) stipu-
lations concerning the furnishing of copies of the minutes of
depositions.
g. Argumentative and Hostile Attorneys.
Large numbers of attorneys, in their representation of
parties or other witnesses on oral depositions, characteris-
tically interrupt, object, make numerous and long statements
“for the record”, and otherwise try to upset and sabotage the
smooth course of the taking of depositions. To what extent
such tactics are an abuse of the process or unethical and to
what extent such tactics are part of the legitimate techniques
of the litigating process need not be discussed in these
materials. How to deal with such conduct depends to a large
extent, of course, upon the personalities of the attorneys
involved as well as upon the attitude of the judges or
magistrates in a particular courthouse.
In this writer’s experience, the most effective way of
dealing with such conduct is being softly spoken and patiently
pleading for forbearance from such conduct. As on a trial or
other hearing, anger and loss of composure are almost always
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disadvantageous. If the repeated requests are not
successful, the only way of dealing with the conduct
may be to suspend the taking of the deposition and seek
some appropriate order of the court, or at least appear
before the judge or magistrate for informal instructions
as to the conduct of the depositions.
With increasing frequency courts are policing attorneys
abusing the discovery process with awards of costs and fees
against them. To the attorney who interrupts by large
numbers of objections to questions, or other argument, a
technique may be a directive to the reporter to cease taking
down the minutes of such needless argument. The law in
this respect is unclear. This subject is discussed elsewhere
in connection with on-the-record and off—the—record discussions.
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h. Eliciting Unfavorable Testimony.
Despite the fundamental principle of discovery under which
material discovered need not go into evidence, there is often
unjustified resistance to examining an adverse party or other
witness on a pre-trial deposition in order to secure, or so as
to risk securing, unfavorable testimony. In most cases, how-
ever, it is as or more important to secure unfavorable testi-
mony than to secure favorable testimony. Discovery is to pre-
pare for trial. The opponent’s case must be fully known to
prepare fully to meet it.
Even if one anticipates resolution of an action by summary
judgment motion and does not want unfavorable testimony on
depositions, in most such cases the unfavorable testimony will
be put in an affidavit by adverse counsel if it is not in the
depositions. In a rare case it may be the judgment of counsel
examining an adverse witness that his attorney will not use the
facts which are unfavorable because he does not and will not
know of them. In such cases it may be sound judgment to forbear
from examining.
A special case for not eliciting unfavorable testimony on
a deposition is that of the deposition which the examining
attorney knows at the time of the deposition must be
used at the trial, because, for example, the deposition is of
a witness who cannot be served with the trial court’s subpoena.
Whether the deposition will have to be used instead of the
witness’s trial testimony, may not be known for certain at the
time of the taking of the deposition. The witness may be ill;
he may or nay not be out of the district of the trial court a’t
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the time of trial. In such case the examining attorney must
sinply make his best educated guess.
i. The Proper Role of a Witness t s Counsel.
At a trial a witness may not confer with counsel or any-
one else. He sits removed from everybody else in the witness’s
chair. On a deposition the witness sits next to his attorney.
Often the witness assumes that he may confer with his attorney
at any time. Whispered conferences are common.
Such conferences probably are improper and would on motion
probably be forbidden by a court. Recesses are hard to forbid,
however, and conferences in hallways, lavatories or elsewhere
are impossible to enjoin. A court or magistrate may also react
adversely to a motion directed at counsel, because it may impugn
his honor.
Moreover, conferences between a witness and his attorney
are frequently helpful to an examining attorney. This writer
often encourages them in corporate or environmental cases in
which the issues of fact do not involve direct conflicts of
testimony of perceived facts, e.g., whether a traffic light was
red or green. One’s own attorney can play a helpful role in
explaining a question, refreshing a witness’s recollection,
referring to documents, or otherwise. For these reasons the
writer generally encourages and specifically advises a witness’s
counsel that he may help the witness, and instructs a witness
to confer with his counsel.
The occasions when a deposition is specifically testing re-
collection, or on which an attorney may aid a witness in a de-
liberate attempt to avoid a truthful answer, are few. They can
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be anticipated and at the time such questions are posed, a
request or instruction can be given to the witness not to con-
fer with his attorney.
Another means of handling the frequent witness-attorney
conference is to have the reporter note the fact of each con-
ference in the minutes, on each occasion when it occurs. Both
the witness and his attorney will try to avoid frequent legends
to such effect.
In the rare case it may be necessary to secure a ruling
forbidding such conferences or to secure other relief under
Rule 37.
j. “On the Record” and “Of f the Record” in Oral Depositions.
In theory everything that is done and happens during a
deposition on oral examination, as on a trial, is “on the
record”. In most depositions, however, attorneys or witnesses
will from time to time go off the record, in discussions of the
propriety of questions, in explaining the meaning of questions,
and in connection with many other matters.
This writer generally encourages off-the-record discussions.
Unless they are used deliberarely to coach witnesses or for
other improper purposes, which are almost always apparent, they
can save much expense and help appreciably in moving the pro-
ceeding along expeditiously. Often an off-the-record explanation
of the meaning of a question aids a witness attempting to give
an honest answer.
This writer often attempts to discuss off the record the
subject matter of a question or a line of questions, in order
to arrive at an agreed statement of facts which may substitute
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for a number of questions and answers. A witness is disarmed
and put at ease by such off-the-record discussions and may be
induced thereby to become more cooperative.
In the course of arguments particularly, as to the propriety
of questions or other matters, this writer often seeks to go
off the record. There is little point to recording in minutes
arguments which will be stated later on motions. Some attor-
neys will insist that everything said be on the record and even
deem it a personal affront if any of their points are not re-
corded. In cases where this seems clearly to be unnecessary
the writer will direct the reporter, on a deposition for which
he has engaged the reporter, to cease recording the arguments.
In order to reduce the expense of depositions and to
clarify answers, it can be helpful for answers to be given of f-
the-record and for the attorney asking the questions to summarize
and restate the answers for the record, with the witness adop-
ting the answers. If done in good faith and tactfully, witnesses
and opposing counsel often cooperate in this process, particu-
larly with respect to complex questions.
k. Handling the Loquacious Witness.
The loquacious witness is generally as welcome to the
examining attorney on a deposition as he is troubling to his own
counsel. A basic instruction to almost all witnesses, on depo-
sitions or trials, is to answer questions as briefly as possible
and to volunteer no information.
The loquacious witness is even more welcome on deposition
than on trial to the examining attorney. This is because the
attorney may determine later whether he uses or does not use the
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deposition or any particular portions of it. Witnesses who
render long answers may, however, create problems for the
examinIng attorney rendering it necessary to curb the
witness’s verbosity, if it is possible. The problems
include the following:
(1) Answers may be unresponsive, avoiding answers such
as “yes” or “no”, or “I did” or “I did not”, when questions
can and should be so answered.
(2) Answers may use up too much valuable time and both
add appreciably to the expense of counsel’s time and reduce
the effectiveness of the deposition.
(3) The verbosity may increase intolerably the cost of
transcription of the minutes.
(4) The long and unresponsive answer may move the
examining attorney off the subject matter of his questioning
or otherwise result in his loss of his train of thought.
(5) To the extent that an answer goes beyond the fair
import of the question, a motion must be made to strike the
unresponsive matter. Such motions are frequent at trial and
the court generally rules immediately. If, however, the
examining attorney wants to read in the question and answer
upon the trial, he may not read in only the portion of the
answer he deems responsive but must move to strike that
portion. The question may then arise of whether such an
objections is one which should have been made at the
deposition. A careful attorney will, accordingly, note
his motion to strike at the deposition.
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If such motions to strike are to be made after each
answer going beyond the question, doing so may become a
real burden for the examining attorney, since in each case
he must describe with some precision the matter to be
stricken, generally by referring to “the portion of the
answer following the phrase...”
In this writer’s experience the most effective way
to deal with the loquacious witness is to request that he
answer questions directly and briefly. Such requests may
have to be repeated, with gradually increasing indications
of impatience. The witness and his attorney may be told
that he may have to bear the cost of his garrulousness or
have to return for another ‘session or pay counsel fees on
a motion for a court order directing him to answer properly.
The last resort may be proceeding immediately to a judge or
magistrate, if one is available, or suspending the deposition.
A technique that this writer has often found effective,
even with witnesses deliberately avoiding questions, is to
have questions and answers read back to the witness by the
reporter followed by the direction, ‘If you agree with me
that the answer is unresponsive, please now answer the
question.” Another means of shaming a witness into greater
cooperation may be to ask a witness after a long answer to
a clear ‘yes’ or ‘no’ question, “Does your answer mean ‘yes’
or ‘no’?”
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To obviate the problem described above of the requirement
to make numerous motions to strike, this writer has frequently
requested and been granted a stipulation reserving such motions
for the trial.
1. cross-Examining One’s Own Party or Witness.
There is generally no need to cross-examine one’s own
party or witness on the deposition of such party or witness
taken by an adverse party. The testimony which might be
elicited on cross-examination at the deposition may be
elicited at trial or be set out in affidavits in opposition
to or in support of a sununary judgment or other motion.
If, however, there is any fair probability that the
witness will be unavailable at trial or on such a motion,
the witness should be cross-examined. The judgment may be
difficult because it involves frequently predicting the
health or continued life of the witness. A possibility may
also exist of the witness moving to another jurisdiction oi
changing his position, or some other change which may render
the witness less cooperative at trial. Cross—examination of
one’s own witness may also be advisable to record his testimony
and be able to cite it in negotiations for settlement. It
may be far more effective in such negotiations, or in a
pre-trial conference, to point to such testimony than to argue
that such testimony will be rendered.
m. When Should One Seek Rulings?
In any case of some complexity, disputes will arise during
depositions on oral examination — as to the scope of inquiry,
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evasiveness of witnesses, form of questions, conduct of
counsel or a myriad of other matters. The deposition may
be heated, and it is often difficult to tolerate conduct
which one sincerely believes to be violative of the letter
and spirit of the Rules and of decent behavior.
In this writer’s experience it is in almost all cases
more productive to avoid suspending a deposition and to
proceed as far as one can go and make every effort to reduce
to a minimum the necessity for rulings. Among the reasons
for this are the following:
(1) In the great majority of cases rulings will have
to be made on written motion, a time-consuming and expensive
process.
(2) A majority of federal courts now require a statement
of the moving party, in discovery motions, that reasonable
efforts have been made by counsel to resolve the matters
in dispute.
(3) There are generally several lines of questioning
leading to any particular answer. If one is closed off
along one line, by directions not to answer, or by evasive-
ness of a witness, other lines can almost always be pursued.
(4) Objections and directions to answer and other
disputes may appear to involve much less of importance when
a deposition is completed than when the objections are made.
(5) It may be possible to counter resistance to one’s
discovery. The goose and gander character of opposing counsel
may accomplish a great deal in securing cooperation.
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n. Who May and Should be Present at a Deposition.
The principal persons present at a deposition are the
witness and his attorney, the attorney conducting the
deposition, and the reporter. There is seldom any dispute
concerning others attending. Occasionally the attorney
examining a witness will object to the presence of a party
or other person whose testimony is to be taken immediately
or shortly afterward, on the ground that he should not have
the advantage of having listened to the earlier testimony.
Such an objection will generally be upheld.
In an examination of any complexity, the examining
attorney will want at least one assistant, to serve
essentially the same functions as he would on trial. This
writer almost always encourages the presence of a client
at a deposition, or an officer of a corporate client. In
the great majority of cases they do not attend, because of
the pressure of other business. If they have knowledge of
the facts, they can be helpful. They may be testifying later
on deposition or trial, and learning more of the case is
almost always useful. The presence of principals may lead
to settlement negotiations, if only by their learning of the
expenses and risks of litigation.
The attendance of principals also educates them about
the litigating process, which may be important in preparing
for their own deposition or trial testimony. Finally, and
not least important, attendance of clients at depositions,
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as at any other proceeding, educates them concerning the
nature and extent of the attorney’s work. This may be
somewhat more important to the private practitioner than
to government agency counsel, but is also of substantial
benefit to both officials and attorneys of any government
agency.
A deposition of an expert witness generally requires,
or is at least materially aided by, one’s own expert’s
presence at it, as well as his assistance in preparing the
deposition. The importance of the smooth working of the
attorney-expert team from the very beginning of the prepara-
tion of a litigation, through all its phases, need not be the
subject of detailed discussion.
The presence of newspaper or other media representatives
should be considered in a deposition in a case of public
importance. On the one hand, of course, there are ethical
restraints against attorneys using the media for litigating
or other publicity purposes. On the other hand, public
knowledge and understanding of the work of a government
agency in matters as important as many Agency cases is vital
to its discharge of its responsibilities. The recent Supreme
Court case of Gannett Co., Inc . v. DePasguale , 443 U.S. 368
(1979), should be studied.
If media people are present at depositions, it is
important to explain to them some aspects of the discovery
process, particularly the point that the attorney conducting
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the deposition is generally seeking unfavorable information
and testimony, for the purpose of contradicting it at trial
and otherwise preparing for trial, as well as securing
favorable testimony.
o. Privilege and Work Product Problems in the Course of
Oral Depositions.
As stated earlier in the discussion of the scope of discovery
privilege and work product are the two most troublesome and often
litigated aspects of the scope of discovery. Problems involving
the two matters frequently arise during the course of oral depositions.
Privilege must be claimed and stated as an objection to a
question in a deposition in the same manner and at the same time
as an objection based on privilege at trial. The correct procedure
is to object, stating the privilege, and direct the witness not
to answer the question. Objections to the production of documents
on the ground that they constitute attorney’s work product or other
documents “prepared in anticipation of litigation or for trial” are
most often made in responses to interrogatories under Rule 33
or requests for production of documents under Rule 34. Frequent
requests for a document are made during the course of the taking
of oral depositions, and if the witness or attorney in possession
of the documents claims that they constitute his or another’s
work product or material prepared for litigation, he will make the
objection and refuse to produce the document.
It is a frequent, and generally useful and effective procedure
from the standpoint of the party whose deposition is being taken,
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for the complete files to be turned over to and be in the
possession of the attorney. If and when the dccuments are
demanded of the witness or referred to in the question, the
witness will turn to the attorney to hand to him copies
of the documents.
The mere fact that the documents are in the possession of
the attorney does not, of course isolate them from discovery
and production. Nor may a witness avoid discovery of any particular
information by stating that his attorney has the information. On
frequent occasions during the course of oral depositions, this
writer has, when presented with claims that documents or information
are in the possession of the attorney, and when the attorney refuses
to turn over the documents or disclose the information, stated that
the deposition of the attorney will have to be taken. On occasion
a notice of the examination of the attorney has been written
out in longhand or typed during the course of the deposition and
served upon the attorney.
Examination of an attorney is, of course, possible if not
for purposes of harassment and if the attorney is in the possession
of discoverable information which is not in the possession of the
party or an officer, director or managing agent of the party.
The important point for the examining attorney to bear in mind is
that he should not be deterred from seeking information or
documents simply because the possessor of such information or
documents is the attorney.
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Frequently, of course, claims of privilege and work
product during the course of oral depositions will not be
resolved and the parties and their attorneys will have to
submit questions to a judge or magistrate for rulings. In
most cases there will be claims of privilege and work product
of both plaintiffs and defendants, and it is frequently
possible to stipulate with respect to privilege and work
product claims by applying rules to all parties. Considerable
time, effort and expense may be saved if applications for
rulings by the court as to privilege and work product are
made after discovery by both plaintiffs and defendants.
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10. The Use of Discovery Materials.
The end products of the discovery process (hereinafter
sometimes referred to as “discovery materials”) are (a) minutes
of depositions on oral or written questions, taken under Rules 30
and 31; (b) interrogatories and answers thereto, under Rule 33;
(C) documents produced, or copies thereof, and photographs, notes,
or mental impressions of property or things inspected, under
Rule 34; Cd) reports of physical or mental examinations under
Rule 35; and (e) demands for admissions and admissions or denials,
under Rule 36.
To be adduced as evidence upon trial or any other hearing the
discovery materials must satisfy the Rules of Evidence, just as
other evidence. For discovery materials other than the minutes of
depositions, oral and written, there is no process necessary beyond
that applicable to other evidence. The interrogatories and answers,
documents, copies or photographs, and demands for admission and
admissions are offered in evidence. Objections based upon the Rules
of Evidence are considered and overruled or sustained. Notes and
mental images of inspections and reports of physical or mental
examination must, of course, be incorporated in trial testimony
or documents offered in evidence.
Minutes of oral or written depositions must go through an
additional process and satisfy a second series of requirements in
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addition to the Rules of Evidence. That second process and series
of requirenients are profived for in Rule 32(a), the text of which
follows:
“32 (a) USE OF DEPOSITIONS. At the trial or upon the hear-
ing 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 taldng of
the deposition or who had reasonable notice thereof, in
accordance with any of the following provisions:
(1) Any deposition xnay be used by any party for the
purpose of contradicting or impeaching the testimonT of
deponent as a witness, or for an” other purpose permuted by the
Federal Rules of Evidenc .
(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(h)(6) or 31(a) to testify on behalf of a public or
private corporation, partnership or association or gov-
ernmental 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, ma\• he used b - 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 be-
cause of age, illness, infirmity, or imprisonment; or (D)
that the party offering the deposition has b en 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 pre-
senting the testimony of witnesses orally in open court,
to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence
by a party, an adverse party may require him to intro-
duce any other part which ought in fairness to be con-
sidered with the part introduced, and any party may
introduce any other parts.
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Problems in the use of a deposition for the purpose of
contradicting or impeaching the testimony of deponent as a witness
[ upon the trial] are discussed below. For purposes of Rule 32(a) (2)
the term “managing agent” is defined progmatically. “He must ... “
Krauss v. Eire R. Co., 16 F.R.D. 126 (S.D. N.Y., 1954). Use of the
deposition of “a person designated under Rule 30 Cd) (6) or 31 (a)”
to testify on behalf of a corporation or other association is
an advantage of permitting the corporation or association to
name the person by whom it shall give testimony, and should be
considered at the time that the notice of deposition is served.
The t exceptional circumstances” which “in the interest of
justice” may permit the substitution of deposition testimony for
trial testimony may include circumstances which render it a
hardship for a plaintiff or a defendant to testify upon the trial
of an action. Thus, a plaintiff or defendant may in such an
exceptional case take his own deposition and use that deposition
in lieu of appearing and testifying at the trial. The determination
to do so may be risky and consideration should be given to seeking
a ruling of the Court, at a pre-trial conference or other hearing
in advance of trial, on whether it will permit the substitution of
deposition testimony for trial testimony.
No discussion is necessary concerning tactics in placing in
evidence discovery materials other than minutes of oral or written
depositions. The materials other than depositions are handled and
used as other evidence, except that because they are generally available
before trial objections may be made and ruled on and documents
marked with exhibit numbers at pre-tria]. conferences.
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The introduction into evidence of minutes of depositions
involve some particular tactical problems. If the questions and
answers are read upon the trial, with objections made and rulings
made question by question and answer by answer, the usual course
is for an associate of the attorney questioning witnesses to sit
on the witness stand. The trial attorney reads each question and
his associate reads each answer. Before each answer is read an
opportunity is furnished for objections and rulings thereon. While
reading the questions and answers, a copy of the minutes is
generally furnished to the trial judge for him to follow. A
problem is the sheer boredom of the process, compared to the
testimony of a “live” witness. Both the attorney reading the
questions and the one reading the answers may and should attempt
to render the reading more interesting by changing voice inflexions
and even imitating the attitude of questioner and witness. This
is particularly true before a jury. Too much acting will be
curbed, of course, by the court.
There are alternatives to the time-consuming process of
reading long minutes of depositions. Minutes or portions thereof
may be marked as documents, with exhibit numbers assigned, or other-
wise placed in evidence, particularly in non-jury cases. In such
cases objections may be made and ruled upon before trial, frequently
at pre—trial conferences.
A court in a non-jury case will generally appreciate efforts
of counsel, and often press counsel, to avoid the reading of long
minutes of depositions. If any particular questions and answers
are important, the counsel may make a request to read those
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excerpts, with the balance of the minutes going in as documents.
In the event of a dispute as to the text of minutes of
depositions, which is not resolved by agreement or court order
before trial, the attorney offering the disputed minutes, or
having them read, may have to adduce the testimony of the reporter
who took and transcribed the deposition, as to the accuracy of the
minutes. The process is much like the proof of an oral admission;
testimony is adduced as to what was said. The witness is the person
who heard the admission. The person who allegedly made the state-
ment may testify that he did not make it or that he is being mis-
quoted.
Minutes of depositions are often used in cross-examining
trial witnesses who rendered the pre-trial testimony. The minutes
are used to impeach the witness t credibility by showing
contradictory or inconsistent statements. In this writer’s
experience a large percentage of such efforts fail, for several
reasons:
(a) the trial judge or jury may be impatient with attempts
to dramatize differences of language; the witness may secure the
sympathy of the trier of fact;
(b) the only correct manner of so using the deposition minutes
is to ask the witness if he remembers testifying on his deposition
and “having rendered the following answers to the following questions”.
Thereupon the questions and answers are read by the examining
attorney. The witness will generally answer that he remembers
testifying at his deposition and assumes that the transcript is
correct. This is particularly true if he has signed the minutes.
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Following such admission, however, and if the examining at-
torney believes that the deposition testimony contradicts the
trial testimony, it is not generally permitted for the examining
attorney to ask “Which is the truth?”, or to ask any other
question which implies that there is a contradiction. That
fact, if it is indeed a fact, is for the determination of the
court or jury.
The witness may then be asked if there is a contradiction.
If he answers “No”, there is little that can be asked further of
the witness. If the witness admits that there is some inconsistency,
it may be unwise to ask the witness to explain the inconsistency.
His answer may be something like “The lawyers confused me”, or
that he did not fully understand the question the first time.
In summary, the use of depositions to impeach trial testimony
is often very difficult and ineffective.
Whether to permit the use of deposition testimony in lieu
of the live testimony of the witness upon trial may involve
determinations of disputed facts such as whether “the absence of
[ a] witness was procured by the party offering the deposition”, or
whether “the party offering the deposition has been unable to procure
the attendance of the witness or subpoena.” Such issues of fact may
require a mini-trial within the trial. If objections to the use
of depositions are anticipated, it may be necessary to have available
and to adduce the testimony of process servers or other witnesses
who can testify as to the reasons for a witness not being available
for trial.
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ANNOTATION
SANCTIONS AVAILABLE UNDER RULE 37,
FEDERAL RULES OF CIVIL PROCEDURE, FOR
GROSSLY NEGLIGENT FAILURE TO OBEY
DISCOVERY ORDER
by
Richard Neumeg, ID.
TOTAL CLIENT-SERVICE LIBRARY® REFERENCES
23 Am Jur 2d, Depositions and Discovery § 256—267; 24 Am Jur
2d Dismissal, Discontinuance, and Nonsuit §* 56, 57
I Federal Procedural Forms L Ed, Actions in District Court
§ 1:961; 6 Federal Procedural Forms L Ed, Contempt § 16:28,
16:48; 8 Federal Procedural Forms L Ed, Discovery and
Depositions § 23:13 1, 23:307, 23:441—23:453
8 Am Jur P1 & Pr Forms (Rev), Depositions and Discovery,
Forms 621 et seq; II Am Jur P1 & Pr Forms (Rev), Federal
Practice & Procedure, Forms 1201-1262, 1301
USCS Rules of Civil Procedure, Rule 37
US L Ed Digest, Contempt § 15; Discovery and Inspection
§ 12.5, 15; Dismissal and Discontinuance § 9; Rules of Civil
Procedure, Rule 37
L Ed Index to Annos, Contempt; Depositions and Discovery;
Default Judgment; Dismissal and Discontinuance; Federal
Rules of Civil Procedure
ALR Quick Index, Contempt; Depositions; Default Judgment;
Discovery and Inspection; Dismissal or Discontinuance; Rules
of Civil Procedure
Federal Quick Index, Contempt; Continuance or Adjournment;
Default Judgment; Depositions and Discovery; Dismissal and
Discontinuance; Professional Dereliction
Consult POCKET PART in this volume for later cases and statutory changes
831

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FAILURE To OBEY DISCOVERy ORDER 49 ALR Fed
49 ALR Fed 831
Serve answers to interrogatones or to
respond to a request for inspection
(Rule 37(d)) The sanctions available
under the Rule include sinking of
pleadings, precluding evidence or
claims or defenses, establishing facts
against the failing party, cntenng a
default judgment, dismissing the ac-
tion, finding the failing party in con-
tempt, and taxing expenses to the
failing party
This annotation collects and ana-
lyzes the federal cases which discuss
sanctions available under Rule 37,
Federal Rules of Civil Procedure, as
amended, where the courts specifi-
cally state that the failure to make
discovery was due to counsel’s gross
professional negligence, or similar
conduct Outside the scope of this
annotation are cases wherein the fail-
ure to make discovery was willful,
that is, a bad faith or conscious disre-
gard of the discovery order, also not
within the scope of this annotation
are cases wherein the failure to com-
ply with the order was due to a
party’s inability to comply after a
good-faith attempt.’
This annotailon includes only those
federal cases decided after the effec-
tive date of the 1970 amendment to
Rule 37 The 1970 amendment substi-
tuted “failure” for “refusal” through-
out Rule 37 to eliminate the confu-
sion caused by ihe use of both terms
in the pnor version of the Rule
among the courts as to whether Rule
37 sanctions could only be Imposed
after a finding of willfulness; the pur-
pose of this amendment, in part, was
to bring Rule 37 into harmony with
the Supreme Court’s ruling’ that will-
fulness was relevant only to the selec-
tion of sanctions, if any, to be im-
posed,’
0
The following cases imposed sanc-
tions under Rule 37 for failure to
comply with a discovery order, where
the court specifically found that fail-
ure to comply was due to gross pro-
fessional negligence, or similar non-
feasance or malfeasance
In Affanato v MernIl Bros (1977,
CAl Mass) 547 F2d 138, the court
held that where the conduct of coun-
sel consisted of a scnes of episodes of
nonfeasance which amounted, in sum,
io a near total dereliction of profes-
sional responsibility, the Distnct
Court was entitled to conclude that
the conduct went well beyond ordi-
nary negligence and that the entry of
a default Judgment was appropnate
The court so found where the at-
tempts at discovery by the opposing
party were met with noncompliance
for over 2 years, even though the
associate of the firm representing the
party severed his connections with
the firm and had moved out of State
and the firm did noi know of his
conduct in ignoring repeated discov-
ery orders of the court The court
also stated that it was not important,
for purposes of imposing Rule 37
sanctions, to determine whether the
associate’s conduct was proper basis
for an action for malpractice, or the
assessment of fault as between one
attorney and another
Where a party, fully able to com-
ply wiih a magistrate’s order compel-
ling discovery, failed to do so due to
a total dereliction of professional re-
sponsibility amounting to gross negli-
gence, the court in Cinc Forty-Second
Street Theatre Corp v Allied Artists
Pictures Corp (1979, CAl NY) 602
F2d 1062, 49 ALR Fed 820, con-
cluded that the Distnct Court could,
in its discretion, order a preclusion of
evidence tantamount to the dismissal
of a claim under Federal Rule of
Civil procedure 37. The court stated
that it was possible that the plaintifFs
counsel simply did not understand
the exact requirements of the magis-
trate’s oral order compelling discov-
ery, and, if so, the failure to answer
the interrogatOfles might not nse to
the level of “willfulness” or “bad
faith,” which both imply a deliberate
disregard of the lawful orders of the
court The court also stated that con-
siderations of fair play dictate that
the courts eschew the harshest sane-
lions provided by Rule 37 where
failure to comply is due to a mere
oversight of counsel amounting to no
more than simple negligence How-
ever, the court further added, where
the actions of counsel were either
willful or a total dereliction of profes-
sional responsibility, and it is impos-
sible to establish that the attorney’s
action was in fact willful rather than
grossly negligent, the full range of
sanctions of Rule 37 may be imposed
Descnbing the actions of plaintiff
and his counsel as “grossly negligent
at best” the court in Szilvassy v
United States (1976, SI) NY) 71
FED 589, held that since ii was not
clear to what extent, if any, the plain-
tiff was at fault for obstruction of the
discovery process, and since It was
abundantly clear to what extent the
plaintiff’s counsel was at fault in ob-
struction of the process, the court
declined to dismiss the action, but
would require plaintiff’s counsel, and
not the plaintiff, to pay the reason-
able expenses of the motion to dis-
miss and award expenses In this
action, brought under the Federal
Tort Claims Act, the government as
defendant, began the discovery pro-
cess by serving interrogatOries and
requests for documents on plaintiff’s
attorneys, however, the court found
that because of the plaintiff’s failure
to meet deadlines, his evasive an-
swers, and his general unco- operative
attitude toward the discovery process,
the discovery process went on for
over one year The court held that
the delays were caused by the plain-
tiff’s failure to obey discovery orders
and otherwise obstructed the orderly
process of discovery contemplated by
the Federal Rules of Civil Procedure
The court did not accept the argu-
ment of plaintiff’s counsel that the
lengthy and dilatory discovery pro-
cess was justified by the dissolution of
the plaintiff’s law firm, the court
noted that there was at least one
attorney in the firm who had been
involved with the case during the life
of the action
In Armour & Co v Enenco, Inc
(1973, WD Tenn) 17 Fed Rules Serv
2d 514, the court concluded that the
defendant was entitled to a dismissal
of the plaintiff’s claims of patent in-
fnngement as well as a default judg-
ment on the defendant’s counter-
claims that the patents were invalid.
The court stated that the facts
showed that the plaintiff clearly failed
to obey a court order directing dis-
covery, and the plaintiff’s tnal coun-
sel failed to enlist the aid of officials
833
49 ALE Fed FAiLIJRE To OBEY DISCOVERY ORDER
49 ALR Fed 831
Rule 37, as amended, provides for
sanctions for failure to make discov-
ery, where the failure is a failure to
comply with a court order (Rule
37(b)), failure to admit genuineness of
document or truth of any matter as
requested under Rule 36 (Rule 3 7(c)),
or failure to attend a deposition, to
I. As to sanctions for failure to make pationi Industnelles et Commerciales,
discovery under Rule 37 as affected by S A v Rogers (1958) 357 US 197, 2 L
good-faiih aitempis, see annotation at 2 Ed 2d 1255, 78 S Ct 1087
ALR Fed 811 3. Notes of Advisory Committee On
2. Societe lnternai.onale Pour Partic,- 1970 Amendments to Rules
832

-------
of the plaintiff who could have facili-
tated the search for documents, kept
relevant documents in their law
office, and made senous misrepresen-
tations to both the court and oppos-
ing counsel The court stated that
whether to dismiss the case and to
grant a default judgment on the
counterclaims was a matter within its
discretion for which it was appropri-
ate to look to both the nature of the
disobedient party’s misconduct and
the effect of that misconduct on the
nondef’aulting party. The court stated
that, at best, the failure of the plain-
tiff to pursue their discovery obliga-
tions with diligence could be charac-
terized as gross disregard for the
requirements of the discovery process,
and thai, at worst, their misconduct
constituted a scheme intentionally de-
signed to deprive the defendant of
important evidence. The Court rea-
soned that the sanctions of dismissal
and default need not be predicated on
a showing of wrongful intent, because
even if the plaintiff’s misconduct was
solely the result of its complete fail-
ure to exercise reasonable diligence
and not the product of a devious
scheme to conceal evidence, the court
was still warranted in granting the
motion to dismiss the plaintiff’s claim
and to grant a default judgment as to
the defendant’s counterclaim How-
ever, the court concluded that the
defendant was not entitled to ex-
penses, including attorney fees, under
Rule 37(b)(2), because the expenses
were not caused by the involved mis-
conduct, and further it would be
unjust to award the expenses here
since it did not appear to the court
that the defendant’s expenses would
have been any less had the plaintiff
co-operated in the discovery in the
litigation proceeded to conclusion
with the defendant prevailing. The
834
court added that if it had ruled that
the tnal would proceed after further
evidence. ii would award expenses to
the defendant
Where the defendant did not file
answers to plaintiff’s interrogatones,
nor did the defendant’s counsel com-
municate with the plaintiff’s counsel
that he could not secure the signed
answers within the deadline, the
court in Sapiro v Hartford Fire Ins
Co (1971, CA7 III) 452 F2d 215,
affirmed the Distnct Court’s order
assessing attorney fees against the
defendant However, the court was of
the opinion that the imposition of
entering a default judgment against
the defendant, and striking the defen-
dant’s answer was too harsh under
the circumstances The deadline for
answering the plaintiff’s written inter-
rogatories was twice extended, how-
ever, the defendant failed to meet
these deadlines and did not allege
that the answers were available until
IS days after the last deadline Al-
though the defendant’s counsel al-
leged that the failure to meet dead-
lines was due to the bureaucracy of
his insurance company client, the
court characterized the failure as due
to “apparent negligent in observing
deadlines” and “apparent lack of dili-
gent attention.” While noting that the
interrogatones called for 38 answers,
some of which would be complex and
would require a careful check of files
not ordinanly in the custody or con-
trol of the attorney, the court slated
that at the very least the defendant’s
counsel should, upon discovering that
he did not have the signed answers at
the deadline, have communciated
with opposing counsel, explained the
situation, and requested a further
brief extension of the due date
The following matters are of re-
lated interest’
Propriety of dismissal of action
with prejudice. under Rule 41(b) of
Federal Rules of Civil Procedure.
upon ground of plaintiff’s failure to
comply with order of court. IS ALR
Fed 407
Sanctions for failure to make dis-
covely under Federal Civil Procedure
Rule 37 as affected by defaulting
party’s good-faith attempts to com-
ply 2ALRFedSU
Due process as affecting court’s
power to render judgment in civil
case against party for failure to obey
court order 99 L Ed 54
Dismissal of state court action for
failure or refusal of plaintiff tO answer
written interrog4tofles ’ 56 ALR3d
1109
Taxation of costs and expenses in
proceedinga for discovCrY or inspec-
tion 76 ALR2d 965
Allowing witnesseS to testify after
failure of litigant to disclose their
names and addresses in response to
request therefor in pretrial discovery
proceedings 27 ALR2d ‘737
Punishment of civil contempt in
other than divorce cases by striking
pleading or entering default judgment
or dismissal against contemner 14
ALR2d 580
Dismissal of action for failure or
refusal of plaintiff to obey court or-
der 4 ALR.2d 348.
FAILURE To OBEY DiscovERY ORDER 49 ALR Fed
49 ALR Fad 831
49 ALR Fed FAILURE To OBEY DISCOVERY ORDER
49 ALR Fed 831
VassoS, Rule 37—A Workable
Sanctions and Discovery System. 40 .1
Judgment in favor of plaintiff for BA Kansas 147, Summer, 1971
defendant’s failure to appear, or to Note. Federal Discovery Rules. Ef-
answer questions or interrOgatofles, fects of the 1970 Amendments 8
in pretrial proceediflP 6 ALR3d Columbia J of Law & Social Prob-
t pAgTtsih oium 5t 5i
835

-------
cc: UJ, land & Nat. Resources Div., Pollution Control Section, Wash, DC
Attn Michael Canton, Attorney
tc: i.S. EPA, Region IV, 345 Courtland, St. Atlanta, GA 30308
Copies mailed: 9-15-81
•1/
4..
UNITED STATES DISTRICT COURT S.? 1
EASTERN DiSTRICT OF KENTUCKY
PIKEVILLE ,
r. C L4
COU
•CIvIL ACTION NO. 78-234 C L-
UNITED STATES OF AMERICA PLAINTIFF
VS. ORDER
CANADA COAL COMPANY, INC DEFENDANT
* * * * * * *
The Court being sufficiently advised,
IT IS HEREBY ORDERED,
(1) That the joint statement of agreed facts
is FILED.
(2) That the statement of issue of law is FILED
(3) That the answers or objections to plainL .ffs
request for admissions is FILED
(4) That all pre-crial motions are to be f ]ed
on or before :.:.e 4th day of January .
As provided for by standing order of the Court, each
motion shall be accompanied by a me ’iorandum of law anQ
the opposing party shall have an opportunity for response.
(5) That the trial of the above styied action
is CONTINUED until the 25th day of January
1982 at the hour of 9:00 A . .M.
This the /f ’t1ay of September, 1981.
I -
C. WIX UN NK, JUDC

-------
L.
t’:nmo SIAJES D)STF )CT COt T
EASi ihN DISfRJCT OF K NFUC} Y R 2
P 1KEVILLE
n p , ; - c
iN RE I IOFIONS iN TEE P1kEVILLE DiViSiON OF TH] S
ORDER
iT is ORDERED that the fo]Io.cing procedure be estab-
lished for lijolions in the Pikev,fle Division of the United
States District Court for the Eaciern Distflct of Eentucky.
1. Civil Notions Other Than Notions for Extension
of Time . Each motion shall be accorpanied by a ‘ norandurn
in support thereof. F.e5ponsive menoranda s ’ all be filed
not later than fifteen (15) days from the date of se:vice
of the not ion. Time may be e):tended up to thirty (30)
days additional by written stipulation of mo vant and re-
spondant f ] ad vith the CoLrt , ‘ithout further 0.! der of
the Court. Thereafter, the notion .‘ill be subn tted,
unless the Court orders oral argulient. For good cause,
a party may, by separate motion and affidavit, reç est
that these time periods be shortened. A response to
‘uch separate ;notion shall be faed \3thin ciue )
eays, after which it shall be submttted
2. Notions For E>.zens c.ns of T me In C:vi]qg s
i-artaes may by agreeo oroer extend all discovery Lime
limits, subject to any deadline for comp)etion of d s-
covery set by the Court. Parties shall confer regarding
other time limits and submit agreed orders, unless the
extension is opposed. A party way file a n’otaon and
tender an order if he verifies to the Court in writing,
after conferring with opposing counsel, that the motion is
unopposed. If the motion for extension of ti ie is opposed,
the respondent shall file a response thereto within five (5)
days of the d the motion is served.
This 29’day of September, 1980.
. j __
. W1X ,IJNTHANK, JUDGE

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136 23 FEDERAL RULES DECISIONS
Shafroth, “Pre-Trial Techniques of Federal Judges,” 4 F.R.D.
183.
Pre-Trial Clinic, conducted under auspices of Committees for
Improvement of the Administration of Justice and Section of Ju-
dicial Administration of American Bar Association, Sept. 12, 1944,
Chicago, III., 4 F.R.D. 35.
Fee, “Pre-Trials in Criminal Cases,” 4 F.R.D. 338.
Kennerly, ‘Pre-Trial Hearings Under Rule 16,” 1 F.R.D. 185.
Dobie, “Use of Pre-Trial Practice in Rural Districts,” 1 F.R.D.
371.
Holtzoff, “Report of the Committee of the Judicial Conference
of the District of Columbia: Pre-Trial Procedure,” 1 F.R.D. 759.
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
Plaintiff(s) No.
v. (Form of)
Defendant(s) PRETRIAL ORDER
Pre-trial conference before , United
States District Judge, on
Appearances for plaintiff(s):
Appearances for defendant(s):
1. Jurisdiction was conceded by counsel and found by the
Court to be present. (If otherwise, strike out foregoing).
2. In general, the plaintiff(s) claim(s):
3. In general, the defendant(s) claim(s):
4. The following facts are established by admissions in the
pleadings or by stipulations of counsel at the pre-trial conference:
5. The contested issues of fact are:
6. The contested issues of law, in addition to those implicit
in the foregoing issues of fact, are: (Or) There were no special

-------
PRE-TRIAL CONFERENCE 137
Cite u 23 T.R.D. 129
issues of law reserved other than such as are implicit in the fore-
going issues of fact.
7. There were received in evidence:
(a) Plaintiff’s exhibits:
(b) Defendant’s exhibits:
(c) Except as otherwise indicated, the authenticity of received
exhibits has been stipulated but they have been received subject
to objections, if any, by the opposing party at the trial as to their
relevancy and materiality. If other exhibits are to be offered and
their necessity reasonably can be anticipated, they will be sub-
mitted to opposing counsel at least ten days prior to the trial.
8. Witnesses: (Indicate which will be called in the absence of
reasonable notice to opposing counsel to the contrary, and which
may be called as a possibility only).
(a) Plaintiff’s witnesses:
(b) Defendant’s witnesses:
(c) In the event there are other witnesses to be called at the
trial, their names and addresses and the general subject matter
of their testimony will be reported to opposing counsel at least
ten days prior to trial. This restriction shall not apply to rebuttal
witnesses, the necessity of whose testimony reasonably cannot be
anticipated before the time of trial.
9. Ifthecaseistobetriedtoajury,itisdirectedthatre-
quests for instructions be submitted to the Court at the commence-
ment of the case, subject to the right of counsel to supplement
such requests during the course of the trial on matters that can-
not reasonably be anticipated.
10. The following additional matters to aid in the disposition
of the action were determined:
11. This pre- trial order has been formulated after conference
at which counsel for the respective parties have appeared. Rea-
sonable opportunity has been afforded counsel for corrections or
additions prior to signing by the Court. Hereafter, this order
will control the course of the trial and may not be amended except
by consent of the parties and the Court or by order of the Court
to prevent manifest injustice. The pleadings will be deemed
merged herein. In the event of ambiguity in any provision of this
order, reference may be made to the record of this conference to
the extent reported by stenographic notes, and to the pleadings.
12. Possibility of settlement of this case was considered
13. The probable length of the trial of this case is
days. The case was set down for trial (with) (without) a jury
13 F.R.D.—9%

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138 23 FEDERAL RULES DECISIONS
on at o’clock — m. (Or) No definite
setting was made, but it is estimated that the case will be reached
for trial about -.
Dated this day of
United States District Judge
(Use alternate forms below depending upon whether counsel joint-
ly approved this completed order at the pre-trial conference or
the proposed order was completed thereafter and mailed to
counsel).
APPROVED;
Counsel for Plaintiff(s)
Counsel for Defendant(s)
A copy of the proposed pre-trial order was sent by mail to coun-
sel of record on with notice that it would
be signed and filed at the expiration of three days after service
if no objections or suggestions were received.
No objections or suggestions have been received. (Or) Sug-
gestions have been received and approved by the Court and in-
corporated herein.
Datedthis dayof
Judge’s Secretary

-------
Cc. Ccci LCk4-.i 4P%
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
Western Division
)
UNITED STATES OF AMERICA, )
)
Plaintiff,
V.
CONSERVATION CHEMICAL COMPANY, )
et al., )
— Civil Action No.
Defendants! ) No. 82-0983-CV-W-5
Third-Party )
Plaintiffs,
v. )
)
AEROQUIP CORPORATION, et al., )
Third-Party
Defendants.
___________________________________________________________)
Plaintiff’s Motion for
Protective Order and
Supporting Suggestions
Plaintiff, United States of America, by its undersigned
attorneys, moves the Special Master to recomend the issuance of
a protective order pursuant to Fed. R. Civ. P. 26(c) and 26(b)(3)
prohibiting discovery and production of the following privileged
documents:
a) Draft Focus Feasibility Study for Conservation Chemical
Site prepared by the U.S. Army Corps of Engineers, Waterways
Experiment Station, consisting of approximately 60 pages,
submitted to the Environmental Protection Agency approximately
October 24, 1984, and
b) Draft Report, Endangerment Assessment: Conservation
Chemical Company, Kansas City, Missouri, prepared by various
individuals employed by a contractor for the U.S. Environmental
Protection Agency (EPA), consisting of three sections, approximately
ill pages, plus table and exhibits, dated October 17, 1984.

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—2—
INTRODUCTION
On November 14, 1984, the Special Master issued a ruling on
issues which had arrisen during various depositions occuring that
week. Because these depositions had been established by the pre-
trial schedule as “fact depositions” as distinguished from
“expert depositions” scheduled to commence January 15, 1985,
counsel for the United States had objected to questions posed
of “fact witness” employees of the United States, requiring
their opinions on matters which counsel for the United States
believed constituted expert testimony. The ruling of the
Special Master was:
[ T]hat the witness, Mrs. Herndon, should produce
all data relating to studies and site assess-
ments, including pathways under the river,
including prior interpretations of data, and
including her own opinions as to endangerment
and remedial releif.
Mrs. Herndon has the right to state whether
or not she has formed an opinion as to those
matters and counsel may object for the record
to her qualifications as an expert, but she
must answer the questions for the purposes of
depositions.
The same will apply to all other government
witnesses called with regard to the case.
The United States is filing this request for a protective
order to assert that the scope of the ruling requiring produc-
tion of “. . .studies and site assessments, including pathways
under the river, including prior interpretations of data. . .“
should not apply to the two documents cited above.

-------
-3—
ARGUMENTS
These Documents are Privileged
Under the Work Product Rule
It is of extreme significance to this situation that the
documents in question contain opinion work product as distinguished
from ordinary work product, and are thus entitled to the highest
degree of protection from discovery. Rule 26(b)(3) provides
that in ordering discovery of trial preparation materials, even
when the showing required by the rule has been made, a Court
must protect against the disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or
other representative of a party concerning the litigation in
question. Under the Rule, representative is defined to include
a “consultant.” The above referenced Draft Focus Feasibility
Study and Draft Endangerment Assessment and the contents therein
constitute “work product,” and contain opionions and work
product prepared by Plaintiff’s consultants in preparation for
trial, and are thus protected by the work product doctrine outlined
in Rule 26(b)(3). Rule 26(b)(3) of the Federal Rules of Civil
Procedure states;
Subject to the provisions of subdivision (b)(4)
of this rule, a party may obtain discovery of
documents and tangible things otherwise dis-
coverable 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
his attorney, consultant, surety, indemnitor,

-------
-4—
insurer, or agent) only upon a showing that the
party seeking discovery has substantial need of
the materials in the preparation of his case and
that he 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 representa-
tive of a party concerning the litigation.
Subsection (b)(3) requires 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 subsection then goes on to protect against the disclosure,
the mental impressions, conclusions , opinions or legal theories
concerning the litigation of an attorney orotherrepresentative
of.a.party . 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. *1
The purpose of the work product doctrine is to shelter the
mental processes of the attorney or other representative of a
party, providing a privileged area within which they can analyze
and prepare the case for trial. Rule 26(b)(3) requirements of
a special showing for the discovery of trial preparation materials
It should be noted that in cases were the privileged
— information is not completely intertwined with non-
privileged information Courts have ordered disclosure of
a document with the privileged portions deleted. Notes
of Advisory Committee on Rules, Note to Subdivision(o)(3),
Trial. Preparation Materials . —__________________

-------
-5-
and opinion work product reflect the view that each sides’ 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.
On several occasions the Eighth Circuit has recognized
the critical importance of protecting opinion work product and
mental impressions. The Court in In Re•Murphy , 560 F.2d 326
(8th Cir. 1977) held that opinion work product enjoyed a near
absolute immunity and could be discovered only in rare extraordinary
circumstances. 1.4. at 336. See, also United States.v. Real Estate
Board .of .Metropolitan .St . .Louis , 59 F.R.D. 637 (E.D.Mo. 1973).
The Court in In-Re Murphy, supra , stated:
It is clear that opinion work product is
entitled to substantially greater protec-
tion than ordinary work product. There-
fore, unlike ordinary work product, opinion
work product cannot be discovered upon a
showing of substantial need and an inability
to secure the substantial equivalent of the
material by alternative means without undue
hardship. Id at 336.
The Court in In Re-Murphy, supra , also noted that other - -
courts have shielded opinion work product with absolute immunity.
Duplan-Corp.-v.-Moulinage et Retordeire de-Chavanoz , 509 F.2d 730
at 734 (4th Cir. 1974); Sinedley-v.-Travelers-InsuranceCo. , 53
F.R.D. 591 (D.N.H. 1971); United States v. Legett & Platt,
Inc. , 542 F.2d 655 (6th Cir. 1976). Such protection covered
both attorneys and representatives under Rule 26(b)(3). See
Duplan Corp. v. Moulinage et Retordeire de Chavanoz , 509 F.2d

-------
—6-
730, 734 (4th Cir. 1974), cert. denied , 95 SCt. 1438, 420 U.s.
997, 43 L. Ed 2d 68.
The United States is not attempting to prohibit the dis-
closure or production of documents containing information which
is uniquely within the knowledge of the Plaintiff or its represen-
tatives or which is not obtainable from any other source. The
Government has disclosed and will disclose all the underlying
data which support both documents, but strenuously objects to dis-
closure of the conclusions, opinions, or interpretations of that
data by its consultants. The Defendants have retained and identi-
fied several experts in this case who are qualified to interpret
and analyze the underlying data contained in both documents.
Defendants have demonstrated no substantial need for the materials.
As stated above, these documents are clearly opinion work
product as distinguished from ordinary work product. This distinc-
tion appears not to have been considered when the Special Master’s
ruling of November 14, 1984 was entered because the exceptional
circumstances which the Special Master cites as justifying the
discovery of work product matters, are that the Defendants have
demonstrated a “substantial need” for the materials in the
preparation of their case and that they are unable without
undue hardship to obtain the substantial equivalent of the
materials by other means. (Rule 26(b)(3)) Discovery of ordinary
work product such as documents and related tangible things,
i.e., the testimonial substitute of a document prepared in
anticipation of litigation or for trial, can only be allowed
upon the showing of “substantial need” and “undue hardship.”

-------
—7—
The Special Master in previous suggestions to •the Court concerning
Plaintiff’s site assessment documents has stated that discovery
of matters that are clearly Plaintiff’s work product prepared
in anticipation of litigation is warranted because of the fol-
lowing findings:
Therefore, as a matter of public policy,
those conducting the RI/FS should have
the benefit of all available data and
interpretations of that data while the
RI is being conducted and prior to the
FS phase. Thus, the “substantial equi-
valent” of plaintiff’s work product
would not be available at a meaningful
time if the defendants were forced to
wait until depositions are taken of
the experts. . . . (October 9, 1984
Recommendation Concerning Plaintiff’s
Claims of Work Product Privilege, page 4)
It must be assumed that the same rationale applies to the November
14, 1984 ruling requiring the Plaintiff to submit to discovery of
work product matters, as no other reason has been given in the
record.
Assuming arguendo , that the documents are not opinion work
product and thus not entitled to a “near absolute immunity” as
recognized in In re Murphy , and the documents are thus ordinary - •work
product, the conclusion that the Defendants have demonstrated a
“substantial need” for discovery of Plaintiff’s work product
because they are now conducting an RI, is unwarranted. As
previously stated their RI has finally been distributed.
Therefore, it is absurd to believe that Plaintiff’s work product
conclusions could be factored into their RI.

-------
—8—
The Feasibility Study which must be prepared to assess
the most appropriate remedy for this site is required by Sec. 104
CERCLA and the regulations published pursuant thereto in the
National Contingency Plan (40 CFR Part 300). The responsibility
of the agency to independently evaluate the significance of the
facts available about the site, to consider the best available
opinions of professional experts of several disciplines regarding
the potential pathways of endangerment to health or the environment,
and the technologies of preventing further hazard to health or
the environment, is a duty which exists by law, and cannot be
delegated completely to private parties. At a minimum, the
agency must retain sufficient independence of action, based
upon expert evaluation, that it can assure that decisions
regarding site evaluation and clean-up are reached after frank
and honest internal deliberations based upon the best available
expert opinions, without undue influence by affected parties.
There has been no commitment by Defendants in this case to the
preparation of an adequate Feasibility Study, and even if there
were, such commitment would not obviate the agency’s responsibility
for independent decision-making.
Clearly, the Draft Focus Feasibility Study and the Draft
Endangerment Assessment are an integral part of the agency’s
background documents for decision-making in this case and are
entitled to exception from discovery as opinion work product.

-------
—9-
These Documents are Privileged under
the Deliberative Process Rule -
These documents are. also protected under the deliberative
process privilege. The deliberative process privilege is a well-
recognized privilege against disclosure of agency deliberations,
i.e., the “give-and-take of the consultative process” of agency
decision making. Coastal-States -Gas -Corp. -v. -Dept..of -Energy ,
617 F.2d 854, 866 (D.C. Cir. 1980); United States v. Morgan ,
313 U.S. 409, 422 (1941); NLRB -v -Sears,-Roebuck -&-Co. , 421 u.s.
132, 150, 151 (1975) ; United States-v. Exxon Corp. , 87 F.R.D.
624, 637 (D. D.C. 1980); U.S . -Dept.-of-Energy-v . -Brett , 659
F.2d 154 (Temp. Emer. Ct. App. 1981), cert. denied , 102 S.Ct.
1912 (1982). The privilege was described as follows in United
States-v.•ExxonCorp., supra :
It is clear that the government enjoys a
privilege for intra agency memoranda and
documents that record the deliberative,
predecisional process leading to an agency
decision. This privilege protects the
“administrative reasoning process,” Kaiser
Aluminum and Chemical Corp. v. United States ,
157 F.Supp. 939, 946, 141 Ct. CL. 38 (1958),
-of those thoughts, ideas, and analyses that
encompasses the process by which an agency
reaches a decision. United States v. Morgan ,
313 U.S. 409, 422, 61 S.Ct. 999, 1104, 8 L.Ed.
1429 (1941). Disclosure of predecisional
documents would injure that consultative pro-
cess within the government. Kaiser Aluminum,
supra . 157 F.Supp. at 946. Id. at 636.
The reason for the longstanding recognition of this
privilege is manifest: to protect the free flow of information

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- 10 -
necessary to informed decision making by the agency.
The privilege subserves a preponderating
policy of frank expression and discussion
among those upon whom rests the responsi-
bility for making the determinations that
enable government to operate.
Car l.Zeiss.Stiftung .v..V.E.3..Carl .Zeiss,
Jena , 40 F.R.D. iLB, 324 (D. D.C. 1966),
aftd sub nom, V E.B. .CarlZeiss,.Jena .v .
C1ark,3 4TT2d 979 (D.C. Cir. 1967), cert.
denied , 389 U.S. 952 (1967); Kaiser•Aluminum
& Chemical Corp. v. United States , 157 F.
Siipp. 939, 945—46, 141 Ct. Cl. .38 (1958).
This reasoning is similar to that underlying the justification for
the common law privileges protecting attorney-client privilege and
husband-wife communications. Carl Zeiss Stiftung, supra , 40 F.R.D.
at 325 n.l7.
It has been held that documents recommending the filing of a
future lawsuit, NLRBv.-Sears, supra , and drafts of final documents
and deliberative-type documents that weigh the pros and cons of
future agency action are exempt. Coastal .States•Gas Corp..v.
Dept..of Energy, supra . The exemption thus covers recommenda-
tions, draft documents, proposals, suggestions and other subjective
documents which reflect the personal opinions of the writer
rather than the policy of the agency.” Coastal States Gas, supra ,
617 F.2d at 866.
Illustrative of this point is the recent case of F.T.C.
v. Warner Communications,•Inc ., et al , 742 F.2d 1156 (9th Cir.
1984). Analogous to the federal Plaintiff’s burden to show
endangerment in the instant case, the federal plaintiff in
Warner was required to show a reasonable probability of anti-

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— 11 —
competitive effects to enjoin a proposed merger. The federal
plaintiff in that case, the Federal Trade Commission, engaged
the Bureau of Economies to investigate the proposed merger.
The Bureau generated two memoranda containing analyses of the
industry, potential anticompetitive effects and recommendations
on whether the Commission should challenge the venture. In
Warner , the Ninth Circuit confirmed the Commission’s positon
that the memoranda were exempt from disclosure under the
deliberative process privilege, because “ [ t]he memoranda (went]
to the heart of the deliberative and policy making processes.”
Id. at 1161. Central to that decision was the fact that the
defendants had ample evidence of their own. The two memoranda
which are the subject of today’s Motion contain information
analogous to the Bureau’s memoranda in the Warner case.
Illustrative of the import placed upon the defendants
having access to enforcement data is the recent ease of F.T.C.
V. .BassBrothers Enterprizes, -Inc. , 39 Fed.R.Serv.2d 800, 1984-
1 Trade Cas. (CCH) 66009 (N.D.Ohio 1984). In Bass Brothers ,
the federal plaintiff engaged a staff economist and an accountant
to prepare a “report” that analyzed enforcement data and made
the suggestions concerning the merits of a prospective lawsuit
and proposed remedial action. The court in Bass Brothers issued
an order protecting the “report” from disclosure because the
document was predecisional and deliberative and the federal
plaintiff had “supplied the defendants with the raw data upon
which the experts based their opinion and analysis.” Id. at 802.

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— 12 —
In this case, the agency’s Draft Focus Feasibility Study
and Draft Endangerment Assessment are based upon data, much of
which have been previously produced to the Defendants for
purposes of completing their own RI; moreover these documents
are currently in draft form and are undergoing significant
review and revision by the litigation team assigned to this
case. In addition to their trial p eparation purposes, these
documents are being prepared to assist the agency in its decision
making process with regard to its statutory duty to investigate
and remedy uncontrolled hazardous waste sites. As noted above,
§105 of CERCLA provides that the process of selecting a remedy
under CERCLA is charged to the agency. Sec. 105 of CERCLA
authorizes EPA to publish a National Contingency Plan, setting
forth, inter alia :
Pursuant to that authority, EPA adopted NCP
regulations under which EPA, as the lead
agency makes the determination as to the
appropriate remedy to abate a threatened
release of hazardous substances at a
facility (40 CFR 300.68). It is critical
to the NCP that the agency be afforded a
fair opportunity to rationally assess
endangerment and select an appropriate
remedy.
The Draft Endangerment Assessment and Draft Focus Feasibility
Study both were prepared to contribute to this process. As
noted in a recent memorandum from the Environmental Protection
Agency Administrator (See Exhibit A , Attachment 1), the agency
opposes the release of such reports until “they have been completely
and fully peer reviewed and concerns raised by review have been

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—13—
adequately addressed.” Further, the Administrator has issued a
mecnoradum on the assertion of the deiiberativeprocess privilege
(See Exhibit A, Attachment 2), requiring that the doctrine be
exercised only under limited circumstances, which have been found
to exist herein. (See Exhibit A).
These documents are the core of the agency’s considerations
of the proper site remedy. Following agency procedure, this
ongoing consideration will lead to a Record of Decision (ROD),
signed by the Environmental Protection Agency Assistant Administrator
for Solid Waste and Emergency Response (OSWER), detailing an
acceptable site remedy that meets the requirements of CERCLA.
The Defendants should be precluded from unwarranted intrusion into
this decision making process. The Defendants have access to
the facts relied upon by the Environmental Protection Agency
personnel, and are free to make further inquiry on facts and on
the details and application of the selected remedy. Similarly,
experts may be deposed starting January 15, 1985, on expert
matters, including the selected remedy. The bounds of permissible
inquiry do not include probes into the mental impressions and
the evaluative discussions among agency and contractor personnel
regarding administrative decisional process to select an appropriate
remedy at this site.
The privilege may not be overriden unless there is a
“pressing need” for the information, SEC v.•Bausch & Lomb, Inc. ,
19 Fed.R.Serv.2d 332, 334 (S.D.N.Y. 1974), which is not lightly

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- 14 -
found in view of the importance accorded preservation of the
free flow of agency deliberations. E.g., NLRBv. Sears, supra;
Carl.Zeiss.Stiftung.v.V.E.B ..Carl•Zeiss,.Jena , 40 F.R.D. 318
(D. D.C. 1966), aff’d subnom., V.E.B. Carl Zeiss, Jena v.
Clark , 384 F.2d 979 (D. D.C. 1967), cert. denied , 389 U.S. 952
(1967). Defendants have not and cannot make the required showing
of necessity. The factual bases for the deliberative process of
the agency and its experts are available to the Defendants
through routine discovery and the United States has already pro-
duced virtually all background data upon which these documents
are based. The United States is willing to produce these documents
prior to the commencement of the expert deposition period.
Expert opinions on these documents are similarly discoverable
from those expert witnesses expected to be called at the trial.
CONCLUSION
Because the later versions will be disclosed by the Plaintiff
and because Defendants currently have all the necessary background
information to obtain substantially equivalent materials, there -
is no showing of substantial need, let alone undue hardship. -.
Here, there is no need to invade the agency’s deliberations,
thereby jeopardizing the frank discussion necessary for informed
decisions.
For the aforementioned reasons, a protective order should
issue prohibiting the discovery of the Plaintiff’s Draft Focus
Feasibility Study and Draft Endangerment Assessment.

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- 15 -
Respectfully submitted,
ROBERT C. ULRLCH
United States Attorney
By: . 4 1 .d4 ;:?h ,A é
KEth E111 JOSEPHSON
KENNETH E. WEENFURT
Assistant United States Attorneys
549 United States Courthouse
811 Grand Avenue
Kansas City, Missouri 64106
CERTIFICATE OF SERVICE
I her by certify that a copy of the foregoing was mailed
this ‘ 1 day of November 1984 to the following:
James Horn
Blackwell, Sanders, Matheny,
Weary & Lombardi
2480 Pershing Road
Kansas City, MO 64108
Slagle & Bernard
127 West Tenth Street
Kansas City, MO 64105
Gary Whittier
Shook, Hardy & Bacon
Mercantile Bank Tower
1101 Walnut
Kansas City, MO 64106
John Wittenborn
Land & Natural Resources Division
Environmental Defense Secton
Department of Justice
P.O. Box 23986
Washington, DC 20026
Special Master
Robert J. Freilich
Freilich & Leitner, PC
4635 Wyandotte
Kansas City, MO 64112
Jerome T. Wolf
Spencer, Fane, Britt & Browne
1100 Power & Light Bldg.
106 W. 14th Street
Kansas City, MO. 64105
James F. Duncan
Watson, Ess, Marshall & Enggas
1006 Grand Avenue
Kansas City, MO. 64106
Martin J. Purcell
Morrison, Hecker, Curtis,
Kuder & Parrish
1400 Bryant Bldg.
1102 Grand Avenue
Kansas City, MO. 64106
John M. Kilroy
Shughart, Thompson & Kilroy
922 Wa].nut
Kansas City, MO. 64106
______
i t N /

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
UNITED STATES OF AMERICA,•
Plaintiff
V.
CONSERVATION CHEMICAL COMPANY, Civil Action
ARMCO, INC., AT&T TECHNOLOGIES, ) 82-0983-CV-W-5
INC., FMC CORPORATION, and )
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendants and
Third-Party,
V.
)
AEROQUIP CORPORATION, et al.,.
Third-Party )
Defendants.
AFFIDAVIT OF ENVIRONMENTAL PROTECTION AGENCY
REGIONAL ADMINISTRATOR
Comes now the A.ffiant and states as follows:
1. That he is the Regional Administrator for the United
States Environmental Protection Agency, Region VII, Kansas
City, Missouri, and is charged with responsibility for manage-
ment of the operations of the Environmental Protection Agency
in Missouri, Kansas, Iow and Nebraska.
2. That the Administrator of the Environmental Protection
Agency, William D. Ruckeishaus, issued a memorandum on October 4,
E iIBIT A

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-2-
1984 (Attachment 1) regarding Release by EPA of Draft Reports.
That policy states that information or data from draft agency
reports are not appropriately released to the public until
after they h ve been co pletely and fully reviewed by internal
agency processes and concerns raised by such internal review
have been addressed adequately. That the memorandum states
that the only exception to the policy against release of
draft reports is under circumstances when public comment on
such reports is necessary prior to final release.
3. That the Administrator of the United States Environmental
Protection Agency, William D. Ruckeishaus, issued a memorandum
to all Regional Administrators on October 3, 1984 (Attachment 2),
relating to Guidance for Assertion of Deliberative Process
Privilege. That said policy 1 provides that the deliberative
process privilege may be claimed only for documents which are
truly deliberative or recommendatory in nature, and consist
of advisory matter, and that the authority to assert the
privilege must be obtained under the circumstances described
more fully in the memorandum, and referenced hereinafter.
4. That the documents for which Affiant asserts exemptio
from disclosure on the basis of the policy on draft reports and
on the basis of the deliberative process privilege are:
a. -Draft Focus Feasibility Study for Conservation
Chemical Si,te, prepared by Cullinane and Crabtree
of the U.S. Army Engineer Waterways Experiment
Station, consisting of approximately 60 pages, sub-
mitted to the Environmental Protection Agency
approximately October 24,1984, and

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-3-
b. A Draft Report, Endangerment Assessment:
Conservation Chemical Company, Kansas City,
Missouri, prepared by various individuals employed
by a contractor, for the U.S. Environmental
Protection Agency, consisting of three sections
approximately ill pages, plus tables and exhibits,
dated October: 17, 1984.
5. That each of .these documents was prepared under contract
for the Environmental Protection Agency pursuant to its responsi-
bilities to protect public health or welfare or the environment,
and are not intended for public disclosure until agency internal
review processes are complete to verify the accuracy of the data
and the validity of the tentative recommendations therein,
based upon the professional judgment of Environmental Protection
Agency staff, and that such review cannot be complete unti .
data expected to be received 1n the near future is included in
the evaluation and internal t!eview process.
6. That he has personaLly reviewed each of these documents.
7. That, in the judgment of Affiant, disclosure of the.
documents may cause an identifiable harm to the public in that:
a. The dDcuments each are in draft form and contain pro-
posed conclusions which have not been subject to agency review
and evaluation, or peer review, and which may damage public -
confidence in the agen y, if released, by providing misleading
or erroneous information which may be corrected if the document
is given full, agency internal review before release, and further
that information which ay come to the agency’s possession in
the near future may change the proposed conclusions of the
draft EPA reports, and

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-4-
b. Further that the release of the draft documents
containing tentative and unconfirmed conclusions may impair the
agency’s ahility to di.scharge its duty under the public trust
doctrine in that certain administrative powers held by the
agency for the benefit of the public, one being the power to
direct technical studies to a conclusion without the influence
of financial interests, would be interrupted at a critical
stage of development and would therefore deprive the public of
its right to have technical analysis performed in an honest and
frank environment insulated from litigious concerns.
8. That the material is available to the Court for in
camera review.
9. That by agency order’, the authority to assert the
deliberative process privilege has been delegated to Regional
Administrators, including Affiant, and that the concurrence of
General Counsel has been obtained as. required by the delegation.
Further Affiant sayeth not.
Regional Administrator
.

Da
te
I .. ’
. :
Subscribed and sworn to before me this 16th day of November, 1984.
My Commission Expires:

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MEMORANDUM
SUBJECT:
TO:
TME ADMINISTRATOR
ST 4 p
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
11U101t’ WASHINGTON. D.C. 20460
OCT 4E84
Release by EPA of Draft Reports
Assistant Administrators
•Inspector General
General Counsel
Associate Administrators
Regional Administrators
Laboratory Directors
Office Directors
Our concern with making EPA an open agency has led toa number of
questions regarding the official re’ease of draft reports prepared for or
by this agency. Although we do not t wish to withhold information from the
public, we.also do not wish to release reports or data from reports until
after they have been completely and fully peer reviewed and conCernsraised
by review have been adequately addressed. Only then we can be confident
that we are providing the public with the most accurate data and findings
possible. The only cases in which we will release draft reports are when
public comment on such reports Is necessary prior to final release.
William D. Ruckeishaus
EXhIBIT A
Attachmeri 1

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iO 3I 4p
(g \
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC. 20460
3 84
THE ADM,MISTRAroR
MEMORANDUM
SUB3ECT: Guidance for Assertion of Deliberative Process
- Privilege
TO: Assistant Administrators
General Counsel
Inspector General
Associate Administrators
Regional Administrators
The following guidance covers the assertion of the
deliberative process privilege in response to depositions,
motions to compel discovery and questions posed at a trial or
hearing. 1 !
By separate action today, I have approved a delegation of
authority authorizing you to assert this privilege on behalf
of EPA. The guidance should be consulted and applied when
exercising the authority to assert this privilege. (See dele-
gation entitled NAssertion of Deliberative Process Privilege.)
The guidance covers three areas:
• When should EPA assert the privilege?
• Who should assert the privilege?
Now should one assert the privilege?
The purpose of this privilege is to prevent disclosure of
certain documents or other materials containing personal advice,
recommendations or opinions relating to the development of
1/ This guidance does n t cover assertion of this privilege in
reedom of InformatiorVAct matters. Nor does it cover other
discovery privileges such as attorney work product, attorney
client, etc. Finally, proper objections may lie to discovery
that are not based on any privilege such as objections to cis-
covery of legally irrelevant evidence.
E)G IBIT A
Attachment 2

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—2—
Agency policy, rulemaking, use of enforcement discretion, the
settlement of cases, etc. Public disclosure-of such material
would be likely either to inhibit the honest exchange of views
or inaccurately reflect or prematurely disclose the views of
the Agency.
I. Background
The deliberative process privilege applies to information
which is generated as part of the process leading to a final
Agency decision or action on a matter. The function of the
privilege is to encourage the honest and free expression of
opinion, .suggestions and ideas among those formulating policy
for government agencies. United States v. Berrigan , 482 F.2d
171 (3rd Cir. 1973).
Inherent in this rationale is the assumption that, absent
the privilege, the range of fresh ideas will be limited by
fear of later public scrutiny of internal statements and sug-
gestions. Thus, effective and innovative government wilL
suffer. This purpose has been recognized in deciding that the
privilege applies to documents so candid or personal in
nature that public disclosure, is likely in the future to stifle
the honest and frank communication within the agency. Coastal
States Gas Corp . v. Dept. of Energy , 617 F.2d 854, 866 (D.C.
Cir. 1980).
The privilege likewise ‘covers recommendations, draft
documents, proposals, suggestions and other subjective documents
which reflect the .persona]. opinion of the writer rather than
the policy of the agency. Id. Perhaps the most encompassing
definition holds that it is well established that the privilege
obtains with respect to intra—governmental documents reflecting
advisory opinions, recommendations, and deliberations compris-
ing part of a process by which governmental decisions and
policies are formulated. Carl Zeiss Stiftung v. V.E.B. Carl
Zeiss, Jena , 40 F.R.D. 3)8, 324 (D.D.C. 1966), aff’d 384 F.2d
979, cert. denied 389 U.S. 952 (1967).
There are several limitations upon the otherwise broad
reach of the privilege. First, the document or other written
material must be predecisional, meaning generated before the
policy to which it pertains was adopted by the Agency. In the
case of mental impressions or opinions, predecisional means
that the information sought in discovery consists of thoughts
that were never communicated in writing as part of the policy
setting or rulemaking process. Any document written to explain
or support an established policy is not privileged. . NL.RB v.
Sears, Roebuck and Co. , 42]. U.S. 132 (1975) Furthermore even

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—3—
if a document was predecisional when prepared, it can lose that
status if it is adopted, formally or informally, as the agency
position on an issue or is used by the agency in its dealings
with the public.•Coastal States Gas Corp . v. Dept. of Energy ,
617 F.2d at 866. The ptivilege also does not apply to matters
which are purely factual in nature unless such factual material
is inextricably bound within truly deliberative or opinion
matters. Smith V. FTC,. 403 F. Supp. 1000 CD. Del. 1975).
II. When to Assert the Privilege
Although the law allows the Agency to assert this privilege
in a wide variety of situations, it does not require the Agency
to exercise that right. Indeed, it is EPA policy that the
Agency will not assert the privilege in every case where it
applies. The Agency has a responsibility to the public to
provide the relevant facts which underlie a particular policy.
This responsibility suggests that we disclose data and the
reasons supporting a policy on occasion which might otherwise
fall within the scope of the privilege.
- The Agency should release documents or other materials
otherwise subject to the deliberative process privilege except
where:
• release of the d.ocuments or other
matters may cause harm to the public
interest (See Section IV (5) for
definition of harm),
• the documents or other matters are
subject to another privilege which
would justify nondisclosure, or
• release of the material would be
unlawful 2,
Documents or other materials should not be withheld solely
because they would reveal flaws in the case or information
embarrassing to the government.
III. Who Sh u1d Assert the Privilege
In general, the head of the office .responsib].e for devel-
oping the document or material in question should assert the
2/ It is the responsibility of counsel to decide whether the
materials are sub)ect to some other privilege or their release
is unlawful. -

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—4-
privilege on EPA’S behalf where appropriate. Thus, if a liti-
gant makes a discovery request at a regional office seeking
production of matters which originated with a Headquarters
program office, the decision to assert the privilege should
probably be made by the head of that Headquarters program
office. Of course, if he document was produced in a regional
office, the Regional Administrator would assert the privilege,
if appropriate.
IV. How to Assert the Privilege
The guidance contained in this section should be followed
in asserting the deliberative process privilege. The delibera-
tive process privilege may be claimed only for documents or
other materials which are truly deliberative or recommendatory
in nature and consist of advisory matter or personal opinion
rather than factual matter or Agency policy. Material or
documents which, are essentially factual in nature or which
embody policies upon which the Agency has relied may not be
withheld under the claim of deliberative process privilege.
•Furthermore, material which is clearly factual and which can
be excised from deliberative material must be extracted and
disclosed.
At a deposition, trial; or hearing, or similar circuin—
stances where it is impracticable for the Agency to have a
high official on call to claim the privilege, the privilege
may initially be asserted by the attorney representing the
Agency. He or she will raise and protect any potential claim
of privilege by objecting to a question posed and directing
the witness not to answer. If necessary — for example, in
order to respond to a motion to compel — the attorney must
furnish an affidayit from the appropriate Agency official
which formalizes and supports the assertion of the privilege.
The affidavit would be furnished to opposing counsel and, when
appropriate, to the hearing officer or trial judge.
In formally asserting the privilege, the delegatee should
comply with the following:
1) All delegatees must obtain the advance concurrence
of the Office of General Counsel before asserting the privilege.
2) The privilege shall be claimed by executing an
affidavit to be furnished to opposing counsel and, when
appropriate, to the hearing officer or .trial judge.
3) Where appropriate, the affidavit shall identify
each document, portion of the document or other matter for
which the privilege is claimed.

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—5—
4) The affidavit shall specify that the delegatee has
personally reviewed each document or other matter f or which
the privilege is being claimed.
In cases involving an extraordinarily large amount of
material,.the delegatee need only review a representative
sample. It is understood that these will be extreme cases. In
addition, the process of selecting the representative sample
will be under close Bcrutiny. Alternatively, the delegatee may
rely upon a personal briefing of a responsible Agency employee
with personal knowledge of the matters for which the claim of
privilege is sought or upon a comprehensive affidavit of such
a responsible Agency employee in lieu of a briefing. The
affidavit of the delegatee shall state the extent of the review
and whether he or she is relying upon the briefingor affidavit-
of another.
5) The affidavit shall contain a statement that in the
judgment of the affiant (delegatee), disclosure of the documents
or other matters may cause an identifiable harm to the public
interest. For these purposes, harm may be found where public
disclosure is likely in the future to inhibit honest and frank
canmunication necessary to effective policy making or might
inaccurately reflect or prematurely reveal the views of the
Agency. Documents or other aterials should not be withheld
solely because they would reveal flaws in the case or informa-
tion embarrassing to the government.
6) Any agency official wishing to assert this privilege
must be prepared to provide the material in question to the
court for an in camera review.
William D. Ruckeishaus
LE—3OA:J.Libber:lt:426—75O3:p . 34O4M:2/22/84:DISK:LIBBER:8/9
- Reision 2/27/84 ,3/l/84,3/6/84,3/30/84.4/5/84,4/9/84,4/12/84
5,’7/84, 5/10/84, 7/27/84

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