Discovery and Federal Rule of Civil Procedure 11

This subchapter will discuss the events that occur during the discovery process and related Rule 11 issues. The discovery process is the period in the litigation when information related to the substance of the lawsuit is gathered by both parties. It normally begins after the parties’ pleadings (the plaintiff’s complaint and the defendant’s answer) are finalized and are completed prior to the beginning of trial. Discovery, as it is generally referred to, is a crucial period in a lawsuit. The information and evidence gathered during discovery determines what the lawyers will present at trial. Thorough information gathering is therefore necessary to build a strong case and a sound discovery plan and execution will increase the likelihood of a successful outcome. Therefore, this subchapter will focus on the different parts of the discovery process, the various methods that attorneys may use in obtaining information, and the types of information that can be introduced. In addition, this subchapter will conclude with a brief discussion of Rule 11 of the Federal Rules of Civil Procedure, which contains the obligations of attorneys and the potential ramifications of their deviation from these rules.

Discovery in general

As stated above, discovery is the fact-gathering portion of a lawsuit. Lawsuits are based on facts, and discovery of the relevant facts are necessary to support a party's theory of a case. Take the following example:

On September 1, 2013, Mary was driving her car southbound on Main Street. She was stopped at a red light at the intersection of Main Street and North Street. Steven was driving east on North Street and was approaching the intersection where Mary was located. Steven, seeing that the yellow light was about to turn to red, applied his breaks but they did not work. Instead, his car continued through the intersection and struck Mary’s car. The side of Mary’s car was impacted by Steven’s car, causing significant damage. In addition, Mary suffered severe whiplash. Mary’s sister Ruth, who was standing 10 feet away from the intersection, witnessed the entire accident. Police and an ambulance rushed to the scene, and Mary was treated for her injuries at a nearby hospital. A week later, Mary brought a lawsuit against Steven for damages and injuries.

In the above example, there are several pieces of information that will be critical to ascertaining whether Steven is liable for Mary’s injuries. Mary’s version of the story would probably state that Steven ran the red light, and that she proceeded through the intersection when the light turned green. Steven will argue that he had tried to stop his car but the breaks failed, causing the accident. It will be important to find out what Ruth saw from the sidewalk as well as what the doctors found when they treated Mary. It will also be important for the parties and their attorneys to have access to the repair records for Steven's car, both before and after the accident. During discovery, attorneys for each party will seek out this type of information that will help the court and a potential jury in assessing the liability of the parties and the damages that should be awarded, if any.

Discovery is established in the Federal Rules of Civil Procedure. Rules 26 through 37 establish the procedures and rules that govern discovery. The scope of discovery, the various methods that may be implemented during discovery and the requisite procedures, and any applicable requirements and restrictions for obtaining information are located in this series of federal rules. Rule 26 sets the scope of discovery and the duty of each of the parties to disclose certain types of information. Rules 27 through 32 establish the rules for depositions taken during a lawsuit. Rule 33 establishes the rules and procedures for taking interrogatories. Rule 34 specifies the scope of distributing documents, such as maps, charts, photographs and other things, for purposes of discovery. It also identifies similar procedures for accessing real property related to the lawsuit (such as access to a party’s home in a lawsuit related to a dispute over its sale). Rule 35 focuses on regulating access to physical and mental examinations of persons. Physical and mental examinations may be a factor in a lawsuit where a person may have sustained an injury as a result of someone’s negligence, or where a person’s mental state at the time of an incident may be a factor in determining a person’s liability. Rule 36 governs the submission of party admissions. Admissions are written documents containing information that a party agrees to freely admit to and is therefore no longer a disputed issue in the lawsuit. Admissions may be made, for example, on the veracity of a map’s origins or the identity of the author of a letter. Finally, Rule 37 governs the sanctions, or penalties, that may be implemented against a party that refuses to comply with the discovery rules. A 2015 amendment to Rule 37 addresses a party’s failure to preserve electronically stored information. These rules will be explored in greater depth throughout this subchapter.

Lawsuits are based on one or more legal controversies between two or more parties. Therefore, discovery is largely constrained to illuminating the facts and information arising among these parties and controversies. Rule 26 of the Federal Rules of Civil Procedure identifies the scope of discovery and the limitations on the type of information that can be requested by one party and must be relinquished by the other party. On a related note, relevance also plays a role in determining what evidence is admissible under the Federal Rules of Evidence. In legal terminology, the parties may only request information that a court would find as relevant to the subject matter of the lawsuit. For example:

Marty purchased a cellular phone from CellularAdvantage (CA), a cellular phone manufacturer and service provider on August 3, 2003. On August 25, Marty was making a call to his office when he suddenly received a strong electric shock that knocked him unconscious. Marty hired Larry Lawyer to represent him in a lawsuit against CA to recover medical expenses for related injuries and an extended hospital stay. Larry Lawyer had heard of other similar incidents where customers using this particular type of phone had also received electric shocks. The parties would probably seek out discovery for information related to Marty’s injury and its relationship to the cellular phone manufactured by CA. Marty’s attorney may also seek information regarding any prior complaints of injuries caused by CA’s cell phones, in addition to any reports or data related to manufacturing defects or product recalls, to support the lawsuit. On the other hand, CA’s attorney may request access to Marty’s medical reports documenting the injuries that he alleges were caused by the cell phone. A court would most likely consider this information relevant to the lawsuit. See Food Lion, Inc. v. United Food and Commercial Workers Intern. Union, AFL-CIO-CLC, 103 F.3d 1007, 1012 (D.C. Cir. 1997).

There is one cautionary note that should be discussed regarding the issue of relevancy. Rule 26 applies one significant limitation to discovery. Discovery does not extend to accessing information that is privileged. Privileged information is information that is protected by a confidential relationship recognized by law, such as attorney-client, doctor-patient, etc. Therefore, CA’s attorneys would not be able to seek information pertaining to Marty’s discussions with his attorney Larry. These conversations are protected by a special kind of privilege known as the “attorney client privilege”. The attorney client privilege prevents the disclosure of information related to the strategy being planned by the attorney and the discussions between an attorney and his client. The purpose of this particular privilege is to encourage clients to fully disclose information to their attorneys to facilitate a trusting relationship and to help attorneys fully represent their clients.

Another rule, called the "work product" doctrine, protects an attorney’s notes, logs, and other materials that have been prepared in anticipation of the litigation from being discovered by the other party. See Hickman v. Taylor, 329 U.S. 495 (1947). Other privileges include spousal privilege (protecting against the revelation of communications between married spouses), doctor-patient privilege, and psychiatrist-patient privilege. It is important to remember that information protected by attorney-client privilege and other types of privileges is typically not accessible under discovery at all. In addition, it is important to check your jurisdiction’s privilege laws to identify any variances from the general privilege rules. See In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 69 (2d Cir. 2003).

Disclosing information

Rule 26 requires that certain types of information must be disclosed even without any request by the opposing party. One broad category of information that parties are required to disclose under this rule is information specifically related to claims and defenses of the parties. This type of information includes the names and addresses of potential witnesses, lists identifying documents and physical evidence, documents calculating the monetary damages and relief that the plaintiff seeks, and any insurance agreements that may contribute to settling the judgment. For example:

Same facts as the previous example. Larry was gathering information for Marty’s trial and decided to call Dr. No, the physician that treated Marty for his cell phone-related injuries. He also planned on asking Dr. No to testify at trial from his medical notes, which detailed Marty’s precise physical symptoms and condition. Attorneys for CA were planning to call on their expert, Mr. Ernest, who possessed doctoral degrees in physics and engineering, to testify as to the limited risks of shocks from cell phones as well as his detailed scientific report which support these findings. Larry would have to submit the name and address of Dr. No as well as a copy of the medical report (or to have it available for inspection). Similarly, CA’s attorneys would have to submit the name and address of its expert and information regarding their scientific report. These experts and documents would be considered part of a claim or defense and must be disclosed even without request. There may also be additional requirements for the disclosure of information regarding the expert’s knowledge and background, which will be discussed later on in this subchapter.

Rule 26 contains some exceptions to this automatic disclosure requirement. These include actions that involve enforcement of arbitration awards, benefit payments by the federal government, and various other categories. Required disclosures must be made within 30 days of the trial. Any objections that any of the parties may have to the disclosures listed in Rule 26 must be raised within 14 days of the disclosure.

As described above, the scope of discovery is extremely broad. Rule 26 states that it may contain anything related to a party’s claim or defense to a lawsuit. However, there are other limitations in addition to privileged information. The court hearing a lawsuit has a significant amount of discretion to draw its own limitations to the discovery rules. These limitations are also known as local rules. The local rules may limit the number of depositions and interrogatories. They may also limit discovery of information that may be found “cumulative or duplicative”, or information that is already available to the discovering party through other sources. Other limitations that a court may apply would be to prevent the discovery process from being overly costly or burdensome to a party. For example, a discovery request may involve documents or records with several hundred or thousand pages, and thus may be too expensive to reproduce. Instead, the court may order the party in possession of the documents to make them available for inspection, if the other party wants to come look at them or copy them at the other party's expense. One should be mindful of these limitations and any other limitations contained in the local rules of the relevant jurisdiction when making discovery requests. See In re Ford Motor Co., 345 F.3d 1315, 1316 (11th Cir. 2003).

Statements

Statements are broadly defined to include written or recorded statements that are adopted by the person making the statement. Therefore, a statement may be a written statement, it may be videotaped or digitally recorded, or it may be a written transcript. Parties who have made statements are entitled to have copies of their statements delivered to them. Therefore, if a witness at a trial made a statement to the police, he or she is automatically guaranteed access to it. As discussed earlier, statements made by a party to his or her lawyer are protected by the attorney client privilege, and all other privileges (spousal, doctor-patient, etc.) are also applicable.

Experts

Experts are playing increasingly important roles in lawsuits. Where there are technical, scientific, or other complex issues at stake, experts are often called in to consult or testify for a party at trial. However, because of the complexity of the issues that they handle, experts are treated differently than other types of witnesses.

EXAMPLE: Marty’s attorney intends to refute CA’s expert by introducing his own expert, Dr. Spock, a renowned computer engineer from MIT who will testify at trial. Dr. Spock will discuss the wiring of the phone and state how his own research has led to known electrical shortages and malfunctions that could cause the type of injury sustained by Marty.

When experts like Dr. Spock are introduced to discuss and refute (or establish) complicated scientific schemes, their expertise in the field must be established for the court and any potential jurors. The testimony or evidence that the expert offers is to be treated with elevated importance, as compared with the opinion of an eyewitness or lay witness. In addition, it is important for the court or jury to understand that the expert has been hired by one of the parties to the lawsuit (which may affect the perception of the expert’s opinion). Therefore, Rule 26 requires that a party offering expert testimony produce a signed written report that states that the expert is retained for his or her expertise and the report must contain all data, exhibits, qualifications and opinions offered by that particular expert. This report may also contain all published journals or articles produced by the expert.

Parties to a lawsuit may also contact experts and consult with them during the lawsuit but who will not testify at trial. Instead, these experts may be hired on retainer to offer their opinion as information and evidence is revealed during discovery and trial. For these experts, the party using the expert is not required to disclose the information that would be required for testifying experts like Dr. Spock. Their opinions are considered privileged under the attorney client privilege and work product rule and are protected from discovery.

Interrogatories

The plaintiff bringing the lawsuit often sustains some type of injury that the defendant allegedly caused. Frequently, at the heart of the controversy, each of these parties has a different version of the events that led to the accident.

EXAMPLE: Joan was driving her car late one night along Main Street, where the city had hired a contractor to perform some roadwork. The contractor, Ace Contracts (Ace) was constructing new sidewalks. Ace was pulling up some dead trees and debris along Main Street and laying down new wiring for sidewalk lamps. At the end of the workday on August 1, 2013, Ace had collected a sizeable amount of debris and had piled it at the corner of Main and State Streets, and had erected several barriers with blinking lights and cones around the area. Later that evening, Joan pulled up at that corner and, not seeing any blinking lights, drove directly into the pile of debris. Joan sustained significant damage to her car.

In the above example, it is critical for Joan and Ace to learn what the other party thinks happened on August 1, 2003. For instance, Ace may want to learn what speed Joan was driving to determine whether she had an opportunity to identify the warnings and barriers. Joan may want to determine whether Ace knows how many barriers they set up along the street area to identify whether they were aware of the potential danger the road conditions posed to the public. These and many more questions must be answered in order to determine the plaintiff’s likelihood of winning a lawsuit (or the defendant’s likelihood of successfully defending itself from liability) before proceeding to trial.

In these situations, parties use interrogatories. Interrogatories are written sets of questions sent by one party to another party to ascertain information related to a lawsuit. Interrogatories are governed in Rule 33 of the Federal Rules of Civil Procedure. Unlike depositions (discussed below), interrogatories are strictly reserved for parties; depositions may be used for nonparties, such as witnesses. But they both serve the same purpose: to learn what the other party knows.

Interrogatories are given under oath and require that the target party truthfully state the facts as the party understands them. Therefore, if a party lies or offers an answer that does not reflect the facts as he or she knows them, the court could impose punishment. In many ways, interrogatories and depositions are treated as if they are spoken in a courtroom during trial. Therefore, it is imperative that a party answer interrogatories as truthfully as possible.

Here is a sample interrogatory for the example stated earlier from Ace to Joan.

1. State your name for the record.
2. State your address.
3. State your age.
4. State whether you require any corrective lenses for reading or driving. If the answer is affirmative, state whether it is for one or both activities.
5. State whether you suffer from any medical conditions that restrict you from driving, such as seizures or sleep disorders.

Interrogatories are frequently used to supplement information already learned after the automatic disclosures under Rule 26. They often serve to fill in gaps in information. In addition, interrogatories can serve many other purposes. They help identify parties and their employees or agents. They can illuminate whether a party knows about the location of documents or objects involved in a lawsuit, such as bank records or jewelry in an inheritance dispute. They can identify the sequence of events leading up to an accident from a particular party’s perspective or recollection.

Interrogatories are answered by both the parties and attorneys. The courts permit a party to consult with his or her attorney when answering interrogatories. Therefore, an attorney may help a party carefully construct the responses. This collaborative effort can help to minimize any damaging effects of responses that a party may give, while ensuring that the interrogatory is answered.

Sometimes, a party may feel that one or more of the interrogatories are improper. In such as case, a party may object to those interrogatories. If a party decides to object, he or she must also specify the reasons or “grounds” under which the party is objecting to the question. For example, the party may object because the interrogatory seeks the disclosure of privileged information. A party may also object to a question contained in an interrogatory if it is asked for the purpose of embarrassing the party or is unduly burdensome or expensive. A party may also object to an interrogatory if it asks for information prepared by an attorney in anticipation of litigation (under the "work product" doctrine). The party who has been refused the information can ask the judge to force the other party to answer the unanswered interrogatory. At that point, the judge will determine whether the question is proper. If so, the judge can compel the other party to answer the question.

Interrogatories must be signed by the party’s attorney and sent to the receiving party’s attorney by any method identified as permissible under Rule 5 of the Federal Rules of Civil Procedure. See Anderson v. Cryovac, Inc., 805 F.2d 1, 12 (1st Cir. 1986).

Depositions

Depositions, like interrogatories, are used during discovery to gain information. However, unlike interrogatories, depositions can be used for obtaining information from persons who are not parties as well as those who are parties to the lawsuit. Therefore, witnesses to an accident may be deposed to learn what they saw or heard or otherwise observed.

Depositions are important because they are opportunities for the attorneys for both the plaintiffs and the defendants to interview the witnesses in person and to assess their credibility. In addition, the witness or party being deposed is responsible for his or her responses. Since the person being deposed is typically questioned in the presence of the parties and their attorneys, this person is required to give immediate answers. Unlike with interrogatories, where attorneys and parties may carefully craft the responses, depositions elicit immediate and unprepared responses. Therefore, an attorney conducting a deposition can often access more information using this method than by using interrogatories.

Furthermore, depositions give attorneys more latitude in the type of information they can obtain than do interrogatories. Since the attorneys are present and are interacting with the witness or party, the attorneys may style their questions according to the flow of the deposition. Therefore, depositions afford greater flexibility than do prepared interrogatories.

Rule 30 of the Federal Rules of Civil Procedure limits each side of a lawsuit to 10 depositions. As with many other topics discussed in this chapter, a court may alter this amount in its local rules or by written stipulation (agreement) by the parties. When a party deposes a witness, it must give the opposing parties reasonable notice, typically five days, before the deposition. The notice must identify the name and address of the persons to be deposed. This identification is particularly important for corporate parties, when multiple employees or agents may be deposed during the course of a lawsuit. The party or witness being deposed must also receive notice of the impending deposition. If the person to be deposed is a witness and not a party, a subpoena must be issued as required under Rule 45.

Depositions may be conducted anywhere. A court reporter is typically present at the deposition as well as the person to be deposed, the parties to the lawsuit and their attorneys. The court reporter records the questions and responses. This record can be used as evidence during trial if the witness is unavailable. The deposition may also be recorded by video, audio, or written by stenography. The deposed party must sign the transcript after reviewing it. While the court reporter (or other means used to record the deposition) records the answers posed by a party’s attorney, the reporter also records the objections made by the responding witness or the opposing party. If privileged information is sought by a question, an attorney may instruct his client to not answer.

Here is an example of a portion of Joan’s deposition from the above example:

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Question: What is your name?
Answer: Joan Jensen

Question: How old are you?    
Answer: 54 years old.

Question: Do you live in River City?
Answer: Yes. I was born and raised there.

Question: Where were you on the evening of August 1, 2013?
Answer: I was driving down Main Street.

Question: Do you wear glasses when you drive?
Answer: Yes.

Requests to produce documents

A party may serve an opposing party with a request to produce certain identified documents. The term "document" is broadly interpreted by the courts to include writings, photographs, electronic documents, charts, graphs, drawings, and other physically tangible things. Pursuant to a request, each party is typically required to produce any and all sought documents that are relevant to the case. Therefore, it is important to know what documents the other party may have in his possession or control, or that may exist that the other party can access. While all relevant documents can be requested, it is critical to identify the documents with as much detail as possible to ensure that the proper documents are targeted. As with interrogatories and depositions, objections may be offered in response to requests to produce documents on the same bases.

Physical and mental examinations

In the example above, Joan, the car accident victim, sustained physical injuries. In car accidents and other cases where the result was some type of physical or mental injury, physical and mental examinations are important for several reasons. One reason is that an examination documents the extent and severity of the injury, particularly if it is performed immediately after the accident. Another reason that examinations are important is that they tend to link the injuries to the accident, thereby documenting and supporting the claim of liability. Examinations may also reveal that the injury is attributable to a cause other than the basis for the lawsuit. For this and numerous other reasons, physical and mental examinations play important roles in discovery.

Rule 35 of the Federal Rules of Civil Procedure require that the party requesting an examination obtain a court order before carrying out the examination unless the person to be examined voluntarily submits to the examination. The courts look to the role that the examination plays in the lawsuit. If the lawsuit is based on physical injuries suffered in a car accident, the court would be more amenable to ordering the party to submit to the examination. If the lawsuit is based on tax fraud, it is less likely that the court would grant the court order. A physician is normally suggested by the party seeking the examination and later approved by the court, unless the party or person to be examined objects. The party conducting the examination has the obligation to deliver a copy of the physician’s findings and report to the other parties. After the examination takes place, the party may request additional reports regarding the same illness or condition.

Requests to admit

Requests to admit facts or the genuineness of documents are part of the legal tool known as a request for admission. An admission is a party’s attestation that a fact is true or a document is valid. After a fact is admitted, both parties may freely introduce those facts without having to prove their validity or truthfulness. The court looks favorably upon admissions because they streamline the lawsuit by reducing the number of facts that must be proven at trial.

These requests are governed by Rule 36 of the Federal Rules of Civil Procedure. They can be used with regard to three areas: the genuineness of documents, the truthfulness of facts, or an application of law to fact. The party making the request must address each fact, document, or application of law separately. This request is served upon a party, who then can object to the request, admit to the request, deny the request, or neither admit or deny (because a dispute remains or because the party simply doesn't know whether the information is true or false). If the party refuses to admit or deny the request, the party must explain their reasons for doing so.

See Langer v. Monarch Life Ins. Co., 966 F.2d 786 (3d Cir. 1992).

Motions for protective orders and compelling discovery

Rule 30 provides that if a person feels that the testimony or evidence that is being sought in discovery is embarrassing, duplicative, serves only to harass, is unduly burdensome, or would be too expensive to comply with, it may seek a protective order. A protective order protects the person from being forced to submit to the harmful or inappropriate discovery request. It functions to bar, limit, or delay discovery on the particular information. As with other types of motions, the motion for a protective order must contain facts and show adequate cause why the court should impose the order.

Rule 37 provides an instrument for parties to utilize when a party refuses to adequately answer any of the discovery devices identified above. In these situations, a party could move to compel discovery from that party. This tool may be necessary when a party refuses to answer an interrogatory, is evasive in a deposition, or ignores a request to admit facts or produce documents. A court that enforces a motion to compel discovery will often award reasonable expenses and attorney’s expenses to the party that had to seek the judicial intervention.

Rule 11

Rule 11 of the Federal Rules of Civil Procedure is an important rule for three reasons. First, Rule 11 requires attorneys to sign any submission to a court. Every motion, notice, pleading, and document must be signed. Any submission to the court that is not signed is stricken from the record and ignored by the court. If a party is representing itself (also known as “pro se” representation), then the party must sign all court submissions.

Second, Rule 11 establishes that all submissions containing the attorney’s (or party’s) signature are submitted as the truth to the best of the knowledge or belief. The signature represents the signatory’s good faith belief that the information contained in the document is not frivolous or put forth in contravention of the pursuit of justice. The signature also signals the signatory’s efforts to make a reasonable inquiry into the law and facts at the time of the submission. This section of Rule 11 attempts to limit excessive or frivolous content by holding the signatory accountable for the submissions to the court. If an attorney asserts a legal claim in a lawsuit that he or she has knowledge is frivolous, false or is a misstatement of the law, he or she may be in violation of Rule 11.

Third, Rule 11 authorizes the courts to apply sanctions against any party for any conduct by any party that the court finds to be in violation of this rule. Alternatively, a party may make a motion to seek sanctions against opposing counsel. If attorneys, law firms, or any people that work for them (such as paralegals) fail to uphold the requirements of Rule 11, the court may impose sanctions in the form of monetary penalties, payment of reasonable expenses and attorneys’ fees of the opposing party, the revocation of an attorney’s license to practice law, or even possible imprisonment, depending on the violation. The sanction imposed by the court typically reflects the person’s wrongdoing; the more significant the wrongdoing, the greater the sanction. The rule does give the person accused of wrongdoing a chance to respond after notice of the possible sanction.

See Whitehead v. Food Max of Mississippi, Inc., 332 F.3d 796 (5th Cir. 2003).