A Jailhouse Lawyer's Manual - Columbia Law School

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Within fourteen days after the Rule 26(f) meeting, Rule 26(a)(1)(A) requires that you and your adversary exchange certain basic information such as the names, addresses, and phone numbers of any persons who may have discoverable information. Since your adversary is entitled to Rule 26(a)(1) information without making any particular request of you, you should read this rule carefully to determine what information you are required to send. Also, you should be familiar with the Rule’s requirements in order to determine whether your adversary has given you all of the information to which you are entitled. If you or your adversary plans to call expert witnesses at trial, Rule 26(a)(2) makes such information discoverable and you should refer to this Rule for the exact information that may be discovered. In addition, Rule 26(a)(3) requires you and your adversary to inform each other of people you plan to call as witnesses in a trial and to exchange summaries of any evidence that you plan to introduce at a trial. The exchange of information under Rule 26(a)(3) must take place at least thirty days before trial. Lastly, Rule 26(e) requires both parties to voluntarily supplement or correct any information already exchanged if they later obtain information which makes the initial information either incomplete or inaccurate. Under Rule 26(g), you must sign and write your address on all information that you supply to your adversary. By doing so, you indicate that to the best of your knowledge the information is complete and correct. Also, remember that Rule 26(g) requires you to tell the truth and disclose all information. (d) Additional Methods of Obtaining Information (i) Depositions: Rules 27, 28, 30, 31, and 32 In a deposition, a party or any other person who may have useful information is questioned. Depositions are usually conducted by the attorney for the party who is seeking the information. Oral depositions take a similar form to the examination of witnesses at a trial. Basically, a meeting is set up by you or your lawyer with the person you want to depose (the defendant or a potential witness), 12 the opposing lawyer (the other side normally will have one), and a stenographer. 13 Under Rule 26(d), depositions (as well as any other forms of discovery) may be sought only after the initial mandatory meeting between the parties has taken place, unless the court gives permission. 14 Rule 30(a)(2)(A) limits the number of depositions each side may take to a maximum of ten. Nevertheless, if you feel that you need to take more depositions, you may seek the court’s permission. To determine whether to grant your request for more depositions, the court will look at several factors, including (1) whether the information you are seeking is unreasonably cumulative or duplicative 15 or if it can be obtained more conveniently from another source; (2) whether you have already had and passed on the opportunity to get the information you are seeking; and (3) whether the burden or expense of the proposed discovery outweighs its likely benefit. 16 At the deposition, you may ask a broad range of questions. Depositions are particularly useful because they give you the opportunity to obtain an uncoached, spontaneous response from the deponent (the person being questioned). 17 Depositions are often considered the most beneficial form of discovery because they provide the parties with face-to-face contact, unlike other discovery methods. The problem with depositions, however, is that they tend to be time-consuming and expensive. If you depose someone, you must usually hire a stenographer and pay the costs of having the stenographer’s notes typed out in readable form. Both sides, their attorneys, and the witness must arrange a suitable time and place for the deposition. Rule 29 of the Federal Rules of Civil Procedure can offer some relief by providing for the use of stipulations. 18 If you and your opponent agree, you can hold the deposition in a place convenient for you (such as the jail or prison), and you can tape record the deposition instead of hiring a stenographer. 12. The “defendant” (sometimes called “respondent”) is the party being sued. The “plaintiff” (sometimes called “petitioner”) is the party who filed the papers to bring the suit. The “deponent” is the person questioned in a deposition. 13. The “stenographer” is a professional secretary who types in shorthand everything said during the deposition. 14. Fed. R. Civ. P. 26(d). 15. “Cumulative” refers to discovery requests so broad and including so much material they are difficult or impossible to fulfill within a reasonable time period. “Duplicative” means discovery requests repeating earlier discovery requests needlessly. These requests are often made with the goal of making it hard for the other side to meet requests. 16. Fed. R. Civ. P. 26(b)(2)(C). 17. The deponent may not be as well prepared by his attorney as he will be at the trial, and the attorney will not have an opportunity to review the deponent’s responses before you receive them. 18. A “stipulation” is a written agreement between the parties to a court proceeding which states that they agree to a certain fact, rule, or way of proceeding.
If your opponent is unwilling to stipulate to alternative methods of taking a deposition, you can also make a motion to the court to order him to cooperate. 19 Be prepared to show specific reasons for your request (for example, that you cannot afford a stenographer). Another option is to obtain written depositions. If you choose to use written depositions, you should refer to Rule 31 for the exact procedure. However, you should note that the use of written depositions does not allow you to get the face-to-face, un-coached answers which you can probably get with oral depositions. (ii) Interrogatories: Rule 33 Interrogatories are written questions that must be answered in writing under oath. Only parties to a suit (you and your opponent) can be ordered by the court to respond to interrogatories. Unlike depositions, outside witnesses cannot be ordered to respond to interrogatories. Apart from this important limitation, interrogatories are a very useful device because they are inexpensive. Rule 33(a) limits the number of questions each party may ask to twenty-five. Nonetheless, if you feel you need to ask more than twenty-five questions, you may ask the court for special permission to do so. To determine whether your request should be granted, the court will consider whether the information you are seeking is unreasonably repetitive, whether you have already had the opportunity to obtain the information, and whether the burden or expense of the additional interrogatories would outweigh their likely benefit. 20 Interrogatories may be sent as soon as you and your opponent have attended the mandatory meeting under Rule 26(f). Note that many local courts and individual judges have their own special rules for handling interrogatories. If you are considering serving interrogatories, you should check with the clerk of the court to find out if special rules apply to you. After sending the interrogatories to your opponent, he must answer within thirty days unless there is a court order stating otherwise, or you and your opponent agree that there should be more or less time allowed. 21 As with depositions, your questions must be relevant to the case, they cannot ask for privileged material, and they cannot be unduly or unreasonably burdensome to the other side. If you are suing a prison official for assault, for example, you might ask the following questions in your interrogatory: (1) Were you on Block 8 at or around 8:00 P.M. on January 30, 1999? (2) Why were you on Block 8 at 8:00 P.M. on January 30, 1999? (3) At 8:00 P.M. on January 30, 1999, did you hear any noise coming from the east dayroom? (4) Did you go inside the east dayroom shortly after 8:00 P.M. on January 30, 1999? You will notice that in order to obtain specific answers, you will need to ask specific questions. You should be careful not to phrase your questions in a manner that allows only a “yes” or “no” answer if you want more information. Questions (1), (3) and (4) above are types of questions that would be answered with only a “yes” or “no.” But question (2) cannot be answered by a “yes” or “no.” If you have trouble getting answers to your interrogatories and there is no legitimate reason for your opponent’s failure to respond (such as a claim that you are seeking privileged or irrelevant information), then you can submit a motion for an order compelling discovery under Rule 37(a)(2)(B). However, in order for a court to grant your motion, you must be able to show that, before asking the court for help, you made every effort to get the answers from your opponent. If the judge does grant your motion, your opponent will be penalized by the court if he does not respond to your interrogatories. Some judges are reluctant to issue orders compelling discovery, so you should read the Federal Rules of Civil Procedure closely and prepare an argument to show why you need the information requested and that you have a right to receive it. (iii) Production of Documents: Rule 34 Rule 34 of the Federal Rules of Civil Procedure enables you to obtain documents and other physical objects in your opponent’s possession. Once again, you may only get those materials that are relevant to your case and are not privileged. Like other forms of discovery, permission of the court is not generally required and it is assumed by the Rule that the parties will cooperate in disclosing the needed material. You can request materials after you have met with your opponent under Rule 26(f), or you can ask the court for permission to request materials sooner. As with interrogatories, there is a thirty-day period in which to respond. If your opponent refuses to cooperate with a reasonable request, you can file an order to 19. Fed. R. Civ. P. 26(c)(2). 20. Fed. R. Civ. P. 26(b)(2)(C). 21. Fed. R. Civ. P. 33(b)(3).
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A Jailhouse Lawyer's Manual - Columbia Law School

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