Rules 26 to 37 of Title V of the Federal Rules of Civil Procedure (FRCP) deal with depositions and discovery. These rules guide the discovery process at the federal level. Most of the state courts have a similar version of the Federal Rules. A summary of rules 26 to 37 under chapter V is given below.
- Rule 26(a): Parties are required to share evidence supporting their case without being requested by the opposite party. Failure to do so can preclude that evidence from being used at trial. This does not apply to evidence that would harm their case.
- Rule 26(b): Describes what is subject to discovery and what is exempt. Anything that is not privileged or otherwise protected and is relevant can be requested through discovery. Courts are given the power to limit discovery if found that the request is unnecessary, redundant or too difficult to produce vis-à-vis its significance to the case/issue.
- Rule 26(c): Provides for protective order to parties against whom discovery is sought. The party can file a motion seeking protective order, and the court if convinced will pass an order for good cause to protect the party or parties from full or partial discovery.
- Rule 26(d): Provides the timing and sequence of discovery. Generally, parties are not allowed to seek discovery before the parties have conferred. Otherwise, the parties should be authorization by court, stipulation or federal rules, or should be in a proceeding exempted from initial disclosure.
- Rule 26(e): Parties are given chance to correct any wrong information that may have been submitted.
- Rule 26(f): This rule provides for a very significant event, a special meeting between the litigating parties to organize their discovery procedure.
- Rule 26(g): Court can award sanctions to any party who has made use of a discovery device with an intention to subvert the flow of justice, purposefully delay the proceedings or to harass the opposite party.
- Rule 27 (a): Provides for filing a Petition before an action is filed. If a party wants to depose a person or persons relating to a suit the party is later planning to bring in a U.S. court, the party can file a petition before a district court where the person or persons are residing. However, the district court should be convinced about the truthfulness of the petition. In the petition the party should show the following:
- The petitioner is expected to be a party in a case actionable in a U.S. court, but is unable to bring the action presently;
- The petitioner’s interest in the expected action;
- The reason for perpetuating the testimony and the facts the petitioner is trying to establish;
- Name and details of the expected adverse parties and their addresses;
- Name, address and the expected substance of testimony of each deponent.
- Rule 27 (b): Permits perpetuating testimony pending appeal. In a case where judgment has been rendered and is pending appeal, the district court may permit a party upon filing a motion to further take testimony of witness for further proceedings.
- Rule 27(c): Courts are granted power to entertain an action to perpetuate testimony.
- Rule 28 (a): States that depositions in a case subject to U.S. jurisdiction should be taken only before a person or officer authorized by a court or federal law or law in place of examination. The authorized officer should administer oaths.
- Rule 28(b): It is permitted to take deposition in a foreign country. However, the testimony should be taken under applicable treaty or convention, under a letter of request, or on notice. The testimony should be taken only before a person or officer authorized by a court or federal law or law in place of examination to administer oaths.
- Rule 28(c): A person or officer before whom the deposition is taken should not have any interest with the case, parties or party’s attorney.
- Rule 29: States the discovery procedure. Deposition can be taken upon notice before any person, at any time or place, in a manner prescribed by the rules. A court approval is needed if extension of time is required to take the deposition.
- Rule 30(a): Parties are permitted to take deposition of any person which may include a party. Generally, depositions are taken without leave of court, but in certain situations leave of court is required. Depositions are taken through oral questions. Attendance of a deponent can be compelled through subpoena.
- Rule 30(b): A party planning to depose a person should provide the other party a written notice of deposition. The notice should include the time and place of deposition (if known) and the deponent’s name and address (if known). If any documents are required by the deponent to produce, the party requiring the same should list the documents in the notice. The method of recording the deposition should also be notified to the deposing party. Sometimes, it may be taken and recorded through telephone. General methods of recording depositions are audio, audiovisual, or stenographic means.
Depositions are taken before an officer designated or appointed. Deposition process begins with an on-the-record statement by the officer that includes: name of the officer; time, date and place of deposition; deponent’s name; administration of oath by the officer and affirmation by the deponent; and announcing the name or identity of all persons present. When deposition ends, the officer should state on the record that the deposition is completed and should also state on record the arrangement made by the attorneys about the custody of the transcript or recording of exhibits or any other related matters.
- Rule 30 (c): Deposition process is same as any trial process with examination and cross-examination. Once the deponent is put on oath, the officer designated or another person acting in the presence will record the testimony. Parties are free to make objections during deposition. Objections should be in a nonargumentative or non suggestive tone. Along with the depositions all the objections raised are also noted down. The deposition process will continue even if there are objections.
At times, a party can opt for written examination instead of oral examination. In written examination written questions are handed over to the deponent in a sealed envelope. The envelope is opened before the authorized officer and the officer will ask the questions in the envelope and records the exact answers.
- Rule 30(d): Duration of a deposition is limited to one day of seven hours. Court’s permission is required to have additional time. Sanctions are imposed by a court on a person or attorney who impedes the deposition process. A party may file a motion to terminate or stop a deposition if he/she thinks that the deposition is conducted in bad faith. If the court terminates the deposition, the deposition process can be resumed only with the permission of the court.
- Rule 30(e): The deponent is allowed to review the recorded statements or the transcript within 30 days of recoding the same. During the review deponent can also make changes in form or substance of the transcript.
- Rule 30(f): The authorized officer should certify in writing that the deponent was duly sworn and the recoding was done accurately. The deposition should be sealed in an envelope and the envelope should bear the title of the action.
- Rule 30(g): A party required to depose can recover reasonable expenses and attorney fees if the noticing party failed to be present for the deposition or served a subpoena to a nonparty who did not attend.
- Rule 31(a): Leave of court is required to conduct deposition when:
- the parties have not stipulated to the deposition and ;
- more than 10 depositions will be required;
- deponent has already depose in the same case;
- deposition is required to be taken before time; or
- the deponent is in prison.
When a party decides to depose a person through written questions, s/he should provide notice of the same to the other party. Even a corporation, partnership or an association can be deposed through written questions. In case of written question, Cross-questions should be served within 14 days after the service of notice and direct questions, and redirect questions should be served within seven days of serving cross-questions, and recross-questions should be served within seven days of serving redirect questions.
- Rule 31 (b): The officer authorized should also be served with the copy of the written questions. The officer should record, certify, and send the completed deposition back to the party who had sent the questions.
- Rule 31 (c): Party notifying the deposition should also notify all the parties about the completion of the deposition. Likewise, the party filing the deposition should notify all the parties about the filing.
- Rule 32(a): The depositions can be used for or against a party during a hearing or trial. Depositions are also used to impeach a testimony given by the deponent as a witness. When a witness is dead, unable to attend court due to illness, staying more than 100 miles or did not receive the subpoena, the deposition of such a party will be permitted to be used.
Depositions are not permitted to be used against a party who received less than 14 days’ notice. When a deposition is offered for evidence the whole deposition should be offered, and introducing only a part is prohibited.
A deposition taken in a previous action can be used in a later case involving the same subject matter and the parties or their representatives or successors in interest to an extent allowed by the Federal Rules of Evidence.
- Rule 32(b): A party can object to the admission of a deposition as inadmissible if the witness is present and ready to testify.
- Rule 32(c): Parties presenting a deposition as evidence should provide a transcript of the deposition.
- Rule 32(d): An objection to a mistake in the notice of deposition is waived if the irregularity in the notice is corrected promptly. Similarly, an objection about the authorized officer’s qualification will be waived if it is not raised before the deposition begins or as soon as the fact is known. However, an object about the deponent’s competence or materiality is not waived unless the base of objection is corrected on time. Objection to the method of taking deposition is generally waived. Objection to written questions is waived only if the objection is made within seven days. An objection about the method of transcribing the testimony is waived unless a motion to suppress is made immediately.
- Rule 33(a): A party is permitted to serve written interrogatories to another. The interrogatories should not exceed 25 in numbers. Interrogatories are not objectionable just because it requires the party’s opinion or contention pertaining to facts of the case.
- Rule 33(b): The party to who the interrogatories are addressed should answer the interrogatories within 30 days of receiving the interrogatories. Interrogatories should be answered as much as not objectionable. Objections to interrogatories should be stated in writing and with specificity.
- Rule 33(c): Answers to interrogatories are used in compliance of Federal Rules of Evidence.
- Rule 33(d): If an answer can be given only after referring, auditing, compiling or abstracting some documents, the answering party can answer by specifying those documents or give the party interrogating sufficient details to refer the documents by him/herself.
- Rule 34(a): A party may serve on another party a request to produce any type of documents whether electronically stored or not. The type of documents which can be required to be produced will include: writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations. The party requesting can request for a permission to inspect, copy, test, or sample the items/documents in the responding party’s possession, custody, or control.
- Rule 34 (b): The request for documents should describe the items with specificity, should specify the time required for inspecting the item, and specify the form in which the electronically stored items should be produced. Response to the request should be made in 30 days of serving the request. Objections to the request should be made with specificity.
- Rule 34(c): Sometimes a non party may also be required to produce documents and items for inspection.
- Rule 35(a): Courts may require a party to undergo physical or mental examination by a certified examiner, where the party’s mental or physical condition is in controversy in the case.
- Rule 35(b): Upon request a copy of examiner’s report should be given to the party being examined.
- Rule 36(a): A party is permitted to serve a request for admission to the other party. The admission request asks the truth of any matters relating to facts of the case, application of law to facts, and genuineness of certain described documents. Response as answer or objection should be made in 30 days of being served with the admission request.
- Rule 36(b): An admission under this rule is considered conclusive unless the admission is withdrawn or amended with permission of court.
- Rule 37(a): If a party is not complying with discovery procedures, the other party through a motion in good faith can compel the non complying party. A motion to compel disclosure is filed against a party failing to make disclosure, and a motion to compel discovery is filed against a party failing to answer requests, produce documents or inspect items or documents. If the motion is allowed the court will order the non complying party to pay the cost of motion and attorney fees to the party making the motion.
- Rule 37(b): It is treated as a contempt of court if a party required by a court to answer a question on oath fails to obey the court. Sanctions are imposed on a person disobeying the court order.
- Rule 37(c): Failure to disclose or admit by a party is met with sanctions by court.
- Rule 37(d): Failure to attend one’s own deposition, or to serve answers to interrogatories, or to respond to a request for inspection are also met with sanctions by court.
- Rule 37(e): A failure to provide electronically stored information will not be sanctioned if it is found that the electronically stored information was lost in routine, or in good faith.
- Rule 37(f): A party’s failure to participate in the process of developing and submitting discovery plan may be met with sanctions, if the court is not convinced with the party’s explanation for the failure.
Generally, the person who requests the court for initiation of any of the discovery devices has to bear the costs of those devices when the request is granted. Also, if the requesting party eventually succeeds in the lawsuit, the losing party may be asked to reimburse the cost of discovery proceedings to the other party.
Normally, a discovery procedure brings to light some information that would help either party analyze their respective strengths/weaknesses and their chances of successfully litigating the case. Therefore, discovery proceedings quite often result in settlement which eliminates the expense and risks of a trial.