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.” ------- 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 —2— ------- 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”; —3— ------- (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: —4— ------- 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 ------- 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 VI — 17 ------- ) 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. —7-. ------- 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. —8— ------- (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”. —9— ------- (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. —10— ------- (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 —11— ------- 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. —12— ------- (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. —13— ------- (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.” —14— ------- (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 —15— ------- 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. —16— ------- (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.” —17— ------- 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: —18— ------- 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. - 19— ------- (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. —20— ------- 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. —21— ------- 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 —22— ------- 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). —23— ------- 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. —24— ------- 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. —25— ------- (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). —26— ------- (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) —27— ------- (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.” —28— ------- (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.’ —29— ------- (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. —30— ------- 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. —31— ------- 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.” —32— ------- 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. —33— ------- 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). —34— ------- 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.” —35— ------- 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. —36— ------- 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. —37— ------- 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 —38— ------- 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. —39— ------- 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. —40— ------- 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] —41— ------- 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 —42— ------- 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. —4;— ------- 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 —44— ------- 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. —45— ------- 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. —46— ------- 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. —47— ------- 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. —48— ------- 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 —49— ------- 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. —50— ------- 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. —51— ------- 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, —52— ------- 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 —53— ------- 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. —54— ------- 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 —55— ------- 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 —56— ------- 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 —57— ------- 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 —58— ------- 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 —59— ------- 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 —60— ------- 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. —61— ------- 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 —62— ------- 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 —63— ------- 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. —64— ------- 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 —65— ------- 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 —66— ------- 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 —67— ------- 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 —68— ------- 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. —69— ------- 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’?” -70— ------- 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, —71— ------- 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. —72— ------- 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, —73— ------- 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 —74— ------- 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, —75— ------- 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. —76— ------- 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. —77— ------- 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 —78— ------- 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. —79— ------- 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. —80— ------- 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 —81— ------- 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. —82— ------- 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. ii- ------- 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 ------- 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 ------- 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% ------- 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. ------- —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 ------- - 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- ------- — 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. ------- — 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 ------- —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 ------- - 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. ------- - 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 / ------- 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 ------- -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 ------- -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 ------- -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: ------- 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 ------- 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 ------- —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 ------- —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. - ------- —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. ------- —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 ------- |