* FRCP Rules 1, 3, 7, 8, 10

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1 Class 2- Getting the Lawsuit Started 1. Starting a Lawsuit by Filing the Complaint- Why Notice Pleading? *Ashcroft v. Iqbal First Moves, Schulansky Goes to Court (You should look carefully at the part of this chapter called "Resulting Documents," which shows you a copy of a civil litigation complaint.) * FRCP Rules 1, 3, 7, 8, Responding to the Complaint: Motions to Dismiss and Answers 3. Discovery The Defendant's Perspective: Ronan's Answer and Counterclaim (You should look carefully at the part of this chapter called "Resulting Documents," which shows you a copy of a civil litigation answer and counterclaim.) Preliminary Objections: Jones Seeks a Way Out (You should look carefully at the part of this chapter called "Resulting Documents," which shows you a copy of a civil litigation motion to dismiss a claim.) * In-Class Problem Solving: Flannel v. JC Penny Please be prepared to discuss the steps necessary to decide the question posed by this problem. You might want to try writing out your answer before class. Remember that, in deciding a motion to dismiss, the court considers the allegations and all reasonable inferences that can be drawn from them in the light most favorable to the non-moving party (i.e. to the plaintiff, in this case) * FRCP Rules 8, 12 Discovery Techniques A Practical Perspective: Sample Interrogatories, Answers, and Comments FRCP Rules (These are all of the Federal Rules of Civil Procedure that govern discovery in federal courts. You should read the parts in bold and skim the rest.)

2 * Zubulake v. UBS Warburg Ethical Issues in Discovery Discovery Exercise Please see the information sheet that is attached to this syllabus. This exercise should take between 90 minutes and two hours to complete. You must complete this before Class 3. You can do this exercise at any time, but it will probably be easier and more enjoyable after we have had our discovery discussion in class.

3 Filing the Complaint

4

5 West law, FOR EDUCATIONAL USE ONLY Page S.Ct. 1937, 173 L.Ed.2d 868, 77 USLW 4387, Trade Cases P 76,785, 73 Fed.R.Serv.3d 837, 09 Cal. Daily Op. Serv. 5961,2009 Daily Journal D.A.R. 7005,21 Fla. L. Weekly Fed. S 853 (Cite as: 129 S.Ct. 1937) This case has been edited for class. I have highlighted some of the portions of the case that are worth noting. P" Supreme Court of the United States John D. ASHCROFT, Former Attorney General, et al., Petitioners, v. Javaid IQBAL et al. No Argued Dec. 10,2008. Decided May 18, Background: Muslim Pakistani pretrial detainee brought action against current and former government officials, alleging that they took series of unconstitutional actions against him in connection with his confinement under harsh conditions after separation from the general prison population. Holdings: The Supreme Court, Justice Kennedy, held that: Q} Second Circuit had subject matter jurisdiction to affirm district court's order denying officials' motion to dismiss on grounds of qualified immunity, and ill detainee's complaint failed to plead sufficient facts to state claim for purposeful and unlawful discrimination. KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and AUTO, JJ., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ.,joined. BREYER, J., filed a dissenting opinion. Justice KENNEDY delivered the opinion of the Court. Respondent Javaid Iqbal is a citizen of Pakistan and a Muslim. In the wake of the September 11, 2001, terrorist attacks he was arrested in the United States on criminal charges and detained by federal officials. Respondent claims he was deprived of various constitutional protections while in federal custody. To redress the alleged deprivations, respondent filed a complaint against numerous federal officials, including John Ashcroft, the former Attorney General of the United States, and Robert Mueller, the Director of the Federal Bureau of Investigation (FBI). Ashcroft and Mueller are the petitioners in the case now before us. As to these two petitioners, the complaint alleges that they adopted an unconstitutional policy that subjected respondent to harsh conditions of confmement on account of his race, religion, or national origin. In the District Court petitioners raised the defense of qualified immunity and moved to dismiss the suit, contending the complaint was not sufficient to state a claim against them. The District Court denied the motion to dismiss, concluding the complaint was sufficient to state a claim despite petitioners' official status at the times in question. Petitioners brought an interlocutory appeal in the Court of Appeals for the Second Circuit. The court, without discussion, assumed it had jurisdiction over the order denying the motion to dismiss; and it affirmed the District Court's decision. Respondent's account of his prison ordeal could, if proved, demonstrate unconstitutional misconduct by some governmental actors. But the allegations and pleadings with respect to these actors are not before us here. This case instead turns on a narrower question: Did respondent, as the plaintiff in the District Court, *1943 plead factual matter that, iftaken as true~ states a claim that petitioners deprived him of his clearly established constitutional rights. We hold respondent's pleadings are insufficient. Following the 2001 attacks, the FBI and other entities within the Department of Justice began an investigation of vast reach to identify the assailants and prevent them from attacking anew. The FBI dedicated more than 4,000 special agents and 3,000 support personnel to the endeavor. By September 18 "the FBI had received more than 96,000 tips or potential leads from the public." Dept. of Justice, Office of Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks 1, (Apr.2003) (hereinafter OIG 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

6 FOR EDUCATIONAL USE ONLY Page2 129 S.Ct. 1937, 173 L.Ed.2d 868, 77 USL W 4387, Trade Cases P 76,785, 73 Fed.R.Serv.3d 83 7, 09 Cal. Daily Op. Serv. 5961,2009 Daily Journal D.A.R. 7005,21 Fla. L. Weekly Fed. S 853 (Cite as: 129 S.Ct. 1937) Report). In the ensuing months the FBI questioned more than 1,000 people with suspected links to the attacks in particular or to terrorism in general. /d., at 1. Of those individuals, some 762 were held on immigration charges; and a 184-member subset of that group was deemed to be "of 'high interest' "to the investigation. ld., at 111. The high-interest detainees were held under restrictive conditions designed to prevent them from communicating with the general prison population or the outside world. /d., at Respondent was one of the detainees. According to his complaint, in November 2001 agents of the FBI and Immigration and Naturalization Service arrested him on charges of fraud in relation to identification documents and conspiracy to defraud the United States. Pending trial for those crimes, respondent was housed at the Metropolitan Detention Center (MDC) in Brooklyn, New York. Respondent was designated a person "of high interest" to the September 11 investigation and in January 2002 was placed in a section of the MDC known as the Administrative Maximum Special Housing Unit (ADMAX SHU). As the facility's name indicates, the ADMAX SHU incorporates the maximum security conditions allowable under Federal Bureau of Prison regulations. AD MAX SHU detainees were kept in lockdown 23 hours a day, spending the remaining hour outside their cells in handcuffs and leg irons accompanied by a four-officer escort. Respondent pleaded guilty to the criminal charges, served a term of imprisonment, and was removed to his native Pakistan. He then filed a Bivens action in the United States District Court for the Eastern District of New York against 34 current and former federal officials and 19 "John Doe" federal corrections officers. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The defendants range from the correctional officers who had day-to-day contact with respondent during the term of his confinement, to the wardens of the MDC facility, all the way to petitioners-officials who were at the highest level of the federal law enforcement hierarchy. First Amended Complaint in No. 04-CV (JG)(JA), ~~ 10-11, App. to Pet. for Cert. 157a (hereinafter Complaint). The 21-cause-of-action complaint does not challenge respondent's arrest or his confinement in the MDC's general prison population. Rather, it concentrates on his *1944 treatment while confined to the ADMAX SHU. The complaint sets forth various claims against defendants who are not before us. For instance, the complaint alleges that respondent's jailors "kicked him in the stomach, punched him in the face, and dragged him across" his cell without justification, id., ~ 113, App. to Pet. for Cert. 176a; subjected him to serial strip and body-cavity searches when he posed no safety risk to himself or others, jd., ~~ , App. to Pet. for Cert. 182a; and refused to let him and other Muslims pray because there would be "[n]o prayers for terrorists," id., ~ 154, App. to Pet. for Cert. 184a. The allegations against petitioners are the only ones relevant here. The complaint contends that petitioners designated respondent a person of high interest on account of his race, religion, or national origin, in contravention of the First and Fifth Amendments to the Constitution. The complaint alleges that "the [FBl], under the direction ofdefendantmueller, arrested and detained thousands of Arab Muslim men... as part of its investigation of the events of September 11." I d., ~ 47, at 164a. It further alleges that "[t]he policy of holding post-september-11th detainees in highly restrictive conditions of confinement until they were 'cleared' by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001."!d., ~ 69, at 168a. Lastly, the complaint posits that petitioners "each knew of, condoned, and willfully and maliciously agreed to subject" respondent to harsh conditions of confinement "as a matter of policy, solely on account of [his] religipn, race, and/ or national origin and for no legitimate penologicaj interest." Id., ~ 96, at 172a-173a. The pleading names Ashcroft as the "principal architect" ofthe policy, id., ~ 10, at 157a, and identifies Mueller as "instrumental in [its] adoption, promulgation, and implementation." I d., ~ 11, at 157a. Petitioners moved to dismiss the complaint for failure to state sufficient allegations to show.their own involvement in clearly established unconstitutional conduct. The District Court denied their motion. Accepting all of the allegations in respondent's complaint as true, the court held that "it cannot be said that there [is] no set of facts on which [respondent] would be entitled to relief as against" petitioners. /d., at 136a-137a (relying on Conley v. Gibson, 355 U.S. 41, 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

7 FOR EDUCATIONAL USE ONLY Page S.Ct. 1937, 173 L.Ed.2d 868,77 USLW 4387, Trade Cases P 76,785,73 Fed.R.Serv.3d 837,09 Cal. Daily Op. Serv. 5961,2009 Daily Journal D.A.R. 7005,21 Fla. L. Weekly Fed. S 853 (Cite as: 129 S.Ct. 1937) 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Invoking the collateral-order doctrine petitioners filed an interlocutory appeal in the United States Court of Appeals for the Second Circuit. While that appeal was pending, this Court decided Bell Atlantic Corp. v. Twombly. 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), which discussed the standard for evaluating whether a complaint is sufficient to survive a motion to dismiss. established right, respondent must plead sufficient factual matter to show that *1949 petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin. IV * * * III In Twombly, supra. at , 127 S.Ct. 1955, the Court found it necessary first to discuss the antitrust principles implicated by the complaint. Here too we begin l::iy.w<ing note of the eletl1en,ts.a plaintiff must plead to state a Claim of Ul1constit\ltional discrimination against officials entitled to assert the defense of qualified immunity. ill In Bivens, this Court "recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights." Based on the rules our precedents establish, respondent correctly concedes that Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. Because vicarious liability is inapplicable to Bivens and 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution. [2J The factors necessary to establish a Bivens violation will vary with the constitutional provision at issue. Where the claim is invidious discrimination in contravention of the First and Fifth Amendments, our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose, Under extant precedent purposeful discrimination requires more than "intent as volition or intent as awareness of consequences." It instead involves a decisionmaker's undertaking a course of action " 'because of,' not merely 'in spite of,' [the action's] adverse effects upon an identifiable group." It follows that, to state a claim based on a violation of a clearly A [101[11] We tum to respondent's complaint. Under Federal Rule of Civil Procedure 8(a}(2), a. pleading must contain a "short and plain statement ofthe claim showing that the pleader is entitled to relief." As the Court held in Twombly. 550 U.S. 544,127 S.Ct. 1955, 167 L.Ed.2d 929, the pleading standard Rule 8 announces does not require "detailed factual ~legations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of"further factual enhancement." [121[131 To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief tnat is plausible on its face." A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Wh.ere a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.' " Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.!d., at 555, 127 S.Ct (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we *1950 "are not bound to accept as true a legal conclusion couched as a factual allegation" (internal quotation marks omitted)). Rule Thomson Reuters. No Claim to Orig. US Gov. Works.

8 FOR EDUCATIONAL USE ONLY Page4 129 S.Ct. 1937, 173 L.Ed.2d 868, 77 USLW 4387, Trade Cases P 76,785, 73 Fed.R.Serv.3d 837, 09 Cal. Daily Op. Serv. 5961,2009 Daily Journal D.A.R. 7005,21 Fla. L. Weekly Fed. S 853 (Cite as: 129 S.Ct. 1937) marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. I d.. at 556, 127 S.Ct Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific. task that requires the reviewing court to draw on its judicial experience and comm()n sense, 490 F.3d, at 15" But where the well-pleaded. facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not "show[n]"-"that the pleader is entitled to relief." Fed. Rule Civ. Proc. ~- In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determitle whether they p1ausibly give rise to an entitlemenfto relief. Our decision in Twombly illustrates the two-pronged approach. There, we considered the sufficiency of a complaint alleging that incumbent telecommunications providers had entered an agreement not to compete and to forestall competitive entry, in violation of the Sherman Act, 15 U.S.C. 1. Recognizing that U enjoins only anticompetitive conduct "effected by a contract, combination, or conspiracy," the plaintiffs in Twombly flatly pleaded that the defendants "ha[ d] entered into a contract, combination or conspiracy to prevent competitive entry... and ha[d] agreed not to compete with one another." The complaint also alleged that the defendants' "parallel course of conduct... to prevent competition" and inflate prices was indicative of the unlawful agreement alleged. The Court held the plaintiffs' complaint deficient under Rule 8. In doing so it first noted that the plaintiffs' assertion of an unlawful agreement was a" 'legal conclusion' " and, as such, was not entitled to the assumption of truth. Had the Court simply credited the allegation of a conspiracy, the plaintiffs would have stated a claim for relief and been entitled to proceed perforce. The Court next addressed the "nub" of the plaintiffs' complaint-the well-pleaded, nonconclusory factual allegation of parallel behavior-to determine whether it gave rise to a "plausible suggestion of conspiracy." Acknowledging that parallel conduct was consistent with an unlawful agreement, the Court nevertheless concluded that it did not plausibly suggest an illicit accord because it was not only compatible with, but indeed was more likely explained by, lawful, unchoreographed free-market behavior. Id.. at 567, 127 S.Ct Because the well-pleaded fact of parallel conduct, accepted as true, did not plausibly suggest an unlawful agreement, the Court held the plaintiffs' complaint must be dismissed. Jd., at 570, 127 S.Ct B ll4l Under Twombly 's construction of Rule 8, we conclude that respondent's complaint*1951 has not "nudged [his] claims" of invidious discrimination "across the line from conceivable to plausible." Ibid. We begin our analysis by identifying the allegations in the complaint that are not entitled to the assumption of truth. Respondent pleads that petitioners "knew of, condoned, and willfully and maliciously agreed to subject [him]" to harsh conditions of confinement "as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest." Complaint, 96, App. to Pet. for Cert. 173a-174a. The complaint alleges that Ashcroft was the "principal architect" of this invidious policy, id.,, 10, at 157a, and that Mueller was "instrumental" in adopting and executing it, id.,, 11, at 157a. These bare assertions, much like the pleading of conspiracy in Twombly. amount to nothing more than a "formulaic recitation of the elements" of a constitutional discrimination claim, namely, that petitioners adopted a policy " 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." As such, the allegations are conclusory and not entitled to be assumed true. Twombly. supra. 550 U.S., at 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

9 FOR EDUCATIONAL USE ONLY Page S.Ct. 1937, 173 L.Ed.2d 868, 77 USLW 4387, Trade Cases P 76,785, 73 Fed.R.Serv.3d 837,09 Cal. Daily Op. Serv. 5961,2009 Daily Journal D.A.R. 7005,21 Fla. L. Weekly Fed. S 853 (Cite as: 129 S.Ct. 1937) , 127 S.Ct To be clear, we do not reject these bald allegations on the ground that they are unrealistic or nonsensical. We do not so characterize them any more than the Court in Twombly rejected the plaintiffs' express allegation of a " 'contract, combination or conspiracy to prevent competitive entry,' " because it thought that claim too chimerical to be maintained. It is the conclusory nature of respondent's allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth. We next consider the factual allegations in respondent's complaint to determine if they plausibly suggest an entitlement to relief. The complaint alleges that "the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men... as part of its investigation ofthe events of September 11." Complaint, 47, App. to Pet. for Cert. 164a. It further claims that "[t]he policy of holding post-september-!! th detainees in highly restrictive conditions of confinement until they were 'cleared' by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001."!d.,, 69, at 168a. Taken as true, these allegations are consistent with petitioners' purposefully designating detainees "of high interest" because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose. The September II attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. AI Qaeda was headed by another Arab Muslim-Osama bin Laden-and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts. As between that "obvious alternative explanation" for the arrests, Twombly, supra. at 567, 127 S.Ct and the purposeful, invidious discrimination respondent*1952 asks us to infer, discrimination is not a plausible conclusion. But even if the complaint's well-pleaded facts give rise to a plausible inference that respondent's arrest was the result of unconstitutional discrimination, that inference alone would not entitle respondent to relief. It is important to recall that respondent's complaint challenges neither the constitutionality of his arrest nor his initial detention in the MDC. Respondent's constitutional claims against petitioners rest solely on their ostensible "policy of holding post-september-11th detainees" in the AD MAX SHU once they were categorized as "of high interest." Complaint, 69, App. to Pet. for Cert. l68a. To prevail on that theory, the complaitj,t must contain facts plausibly showing that petitioners purposefully adopted a policy of classifying post-september-11 detainees as "of high interest" because of their race, religion, or national origin. This the complaint fails to do. Though respondent alleges that various other defendants, who are not before us, may have labeled him a person of "of high interest" for impermissible reasons, his only factual allegation against petitioners accuses them of adopting a policy approving "restrictive conditions of confinement" for post-september-11 detainees until they were" 'cleared' by the FBI." Ibid. Accepting the truth of that allegation, the complaint does not show, or even intimate, that petitioners purposefully housed detainees in the ADMAX SHU due to their race, religion, or national origin. All it plausibly suggests is that the Nation's top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity. Respondent does not argue, nor can he, that such a motive would violate petitioners' constitutional obligations. He would need to allege more by way of factual content to "nudg[ e ]" his claim of purposeful discrimination "across the line from conceivable to plausible." Twombly, 550 U.S., at 570, 127 S.Ct Thomson Reuters. No Claim to Orig. US Gov. Works.

10 FOR EDUCATIONAL USE ONLY Page S.Ct. 1937, 173 L.Ed.2d 868,77 USLW 4387, Trade Cases P 76,785,73 Fed.R.Serv.3d 837,09 Cal. Daily Op. Serv. 5961, 2009 Daily Journal D.A.R. 7005, 21 Fla. L. Weekly Fed. S 853 (Cite as: 129 S.Ct. 1937) Yet respondent's complaint does not contain any factual allegation sufficient to plausibly suggest petitioners' discriminatory state of mind. His pleadings thus do not meet the standard necessary to comply with Rule 8. * * * Respondent finally maintains that the Federal Rules expressly allow him to allege petitioners' discriminatory intent "generally," which he equates with a conclusory allegation. Iqbal Brief32 (citing Fed. Rule Civ. Proc. 9). It follows, respondent says, that his complaint is sufficiently well pleaded because it claims that petitioners discriminated against him "on account of [his] religion, race, and/or national origin and for no legitimate penological interest." Complaint~ 96, App. to Pet. for Cert. 172a-173a. Were we required to accept this allegation as true, respondent's complaint would survive petitioners' motion to dismiss. But the Federal Rules do not require courts to credit a complaint's conclusory statements without reference to its factual context. unlawful discrimination against petitioners. The Court of Appeals should decide in the first instance whether to remand to the District Court so that respondent can seek leave to amend his deficient complaint. The judgment ofthe Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered Justice SOUTER, with whpm Justice. STEVENS, Justice GINSBURG, and.justice BREYERjoin, dissenting. I respectfully dissent from both the rejection of supervisory liability as a cognizable claim and from the holding that the complaint fails to satisfy Rule 8(a)(2) ofthe Federal Rules of Civil Procedure. I UQ1 It is true that Rule 9(b) requires particularity when pleading "fraud or mistake," while allowing "[m]alice, intent, knowledge, and other conditions of a person's mind [to] be alleged generally." But "generally" is a relative term. In the context of Rule 9, it is to be compared to the particularity requirement applicable to fraud or mistake. Rule 9 merely excuses a party from pleading discriminatory intent under an elevated pleading standard. It does not give him license to evade the less rigid-though still operative-strictures of Rule 8. See 5A C. Wright & A. Miller, Federal Practice and Procedure 1301, p. 291 (3d ed. 2004) ("[A] rigid rule requiring the detailed pleading of a condition of mind would be undesirable because, absent overriding considerations pressing for a specificity requirement, as in the case of averments of fraud or mistake, the general 'short and plain statement of the claim' mandate in Rule 8(a)... should control the second sentence of Rule 9(b )"). And Rule 8 does not empower respondent to plead the bare elements of his cause of action, affix the label "general allegation," and expect his complaint to survive a motion to dismiss. v We hold that respondent's complaint fails to plead sufficient facts to state a claim for purposeful and A Respondent Iqbal was arrested in November 2001 on charges of conspiracy to defraud the United States and fraud in relation to identification documents, and was placed in pretrial detention at the Metropolitan Detention Center in Brooklyn, New York. He alleges that FBI officials carried out a discriminatory policy by designating him as a person" 'ofhigh interest' " in the investigation of the September 11 attacks solely because of his race, religion, or national origin. Owing to this designation he was placed in the detention center's Administrative Maximum Special Housing Unit for over six months while awaiting the fraud trial. As I will mention more fully below, Iqbal contends that Ashcroft and Mueller were at the very least aware of the discriminatory detention policy and condoned it (and perhaps even took part in devising it), thereby violating his First and Fifth Amendment rights. Iqbal claims that on the day he was transferred to the special unit, prison guards, without provocation, "picked him up and threw him against the wall, kicked him in the stomach, punched him in the face, and dragged him across the room." First Amended Complaint in No. 04-CV (JG)(JA), ~ 113, App. to Pet. for Cert. 176a (hereinafter Complaint). He says that 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

11 FOR EDUCATIONAL USE ONLY Page S.Ct. 1937, 173 L.Ed.2d 868, 77 USLW 4387, Trade Cases P 76,785, 73 Fed.R.Serv.3d 837, 09 Cal. Daily Op. Serv. 5961,2009 Daily Journal D.A.R. 7005,21 Fla. L. Weekly Fed. S 853 (Cite as: 129 S.Ct. 1937) after being attacked a second time he sought medical attention but was denied care for two weeks.!d., ~~ , at 189a. According to Iqbal's complaint, prison staff in the special unit subjected him to unjustified strip and body cavity searches, id., ~~ , at 181a, verbally berated him as a" 'terrorist' "and " 'Muslim killer,' " id., ~ 87, at 170a-171 a, refused to give him adequate food, id., ~ 91, at 17la-172a, and intentionally turned on air conditioning during the winter and heating during the summer, id., ~ 84, at 170a. He claims that prison staff interfered with his attempts to pray and engage in religious study, id., ~~ , at 183a-184a, and with his access to counsel, id., ~~ 168, 171, at 186a-187a. Ashcroft and Mueller conceded in their petition for certiorari that they would be liable if they had "actual knowledge'~ of discrimination by their subordinates and exhibited " 'deliberate indifference' "to that discrimination. Pet. for Cert. 29. II Given petitioners' concession, the complaint satisfies Rule 8(a)(2). Ashcroft and Mueller admit they are liable for their subordinates' conduct if they "had actual knowledge of the assertedly discriminatory nature of the classification of suspects as being 'ofhigh interest' and they were deliberately indifferent to that discrimination." Brief for Petitioners 50. Iqbal alleges*1959 that after the September 11 attacks the Federal Bureau of Investigation (FBI) "arrested and detained thousands of Arab Muslim men," Complaint~ 47, App. to Pet. for Cert. 164a, that many of these men were designated by high-ranking FBI officials as being " 'of high interest,' " id., ~~ 48, 50, at 164a, and that in many cases, including Iqbal's, this designation was made "because of the race, religion, and national origin of the detainees, and not because of any evidence of the detainees' involvement in supporting terrorist activity," id., ~ 49. The complaint further alleges that Ashcroft was the "principal architect of the policies and practices challenged," id., ~ 10, at 157a, and that Mueller "was instrumental in the adoption, promulgation, and implementation of the policies and practices challenged," id., ~ II. According to the complaint, Ashcroft and Mueller "knew of, condoned, and willfully and maliciously agreed to subject [Iqbal] to these conditions of confinement as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest." Id., ~ 96, at 172a-173a. The complaint thus alleges, at a bare minimum, that Ashcroft and Mueller knew of and condoned the discriminatory policy their subordinates carried out. Actually, the complaint goes further in alleging that Ashcroft and Muller affirmatively acted to create the discriminatory detention policy. If these factual allegations are true, Ashcroft and Mueller were, at the very least, aware of the discriminatory policy being implemented and deliberately indifferent to it. Ashcroft and Mueller argue that these allegations fail to satisfy the "plausibility standard'' of Twombly. They contend that Iqbal's claims are implausible because such high-ranking officials "tend not to be personally involved in the specific actions of lower-level officers down the bureaucratic chain of cormhalld." Brief fur Petitioners 28. But Twombly does not require a court at the motion-to-dismiss stage to consider whether the factual allegations are probably true. We made it clear, on the contrary, that a court must take the allegations as true, no matter how skeptical the court may be. See Twomblv. 550 U.S., at 555, 127 S.Ct (a court must proceed "on the assumption that all the allegations in the complaint are true (even if doubtful in fact)"); id., at 556, 127 S.Ct ("[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable"); see also Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ("Rule 12(b)(6) does not countenance... dismissals based on a judge's disbelief of a complaint's factual allegations"). The sole exception to this rule lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiffs recent trip to Pluto, or experiences in time travel. That is not what we have here. Under Twombly, the relevant question is whether, assuming the factual allegations are true, the plaintiff has stated a ground for relief that is plausible. That is, in Twombly 's words, a plaintiff must "allege facts" 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

12 FOR EDUCATIONAL USE ONLY Page S.Ct. 1937, 173 L.Ed.2d 868, 77 USLW 4387, Trade Cases P 76,785, 73 Fed.R.Serv.3d 837, 09 Cal. Daily Op. Serv. 5961,2009 Daily Journal D.A.R. 7005,21 Fla. L. Weekly Fed. S 853 (Cite as: 129 S.Ct. 1937) that, taken as true, are "suggestive of illegal conduct." In Twombly. we were faced with allegations of a conspiracy to violate...l of the Sherman Act through parallel conduct. The difficulty was that the conduct alleged was "consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market." We held that in *1960 that sort of circumstance, "[a]n allegation of parallel conduct is... much like a naked assertion of conspiracy in a il complaint: it gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility of 'entitlement to relief.' " Here, by contrast, the allegations in the complaint are neither confined to ilaked legal conclusions nor consistent with legal conduct. The. complaint alleges that FBI officials discriminated against Iqbal solely on account ofhis race, religion, and national origin, and it alleges the knowledge and deliberate indifference that, by Ashcroft and Mueller's own admission, are sufficient to make them liable for the illegal action. Iqbal's complaint therefore contains "enough facts to state a claim to relief that is plausible on its face." Iqbal's claim is not that Ashcroft and Mueller "knew of, condoned, and willfully and maliciously agreed to subject" him to a discriminatory practice that is left undefined; his allegation is that "they knew of, condoned, and willfully and maliciously agreed to subject" him to a particular, discrete, discriminatory policy detailed in the complaint. Iqbal does not say merely that Ashcroft was the architect of some amorphous discrimination, or that Mueller was instrumental in an ill-defined constitutional violation; he alleges that they helped to create the discriminatory policy he has described. Taking the complaint as a whole, it gives Ashcroft and Mueller" 'fair notice of what the... claim is and the grounds upon which it rests.' " Twombly. 550 U.S., at 555, 127 S.Ct (quoting Conlev v. Gibson. 355 U.S. 41, 47,78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (omission in original)). * * * I respectfully dissent. [Justice BREYER, dissenting opinion omitted]. END OF DOCUMENT 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

13 30 First Moves: Schulansky Goes to Court The Dt;afting Request MEMORANDUM TO: FROM: RE: DATE: David E. Howard.Associate.Phyllis Slater Schulansky construction dispute Our file No November 20, 2004 Deborah Schulans.ky, a clien!: of ours, has consulted me concerning a dispute that has arisen between her and a contractor who recently built an addition to her vacation home. It appears that this problem cannot be resolved without filing suit. I would like you to help me with the case. Although Schulansky lives here in Plymouth, Massachusetts, she also owns an antique colonial home in Alton, New Hampshire, which she uses as a vacation home. The house dates from 1782 and is listed in the National Register of Historic Places. Last spring, Ms. Schulans.ky met Richard Ronan, a New Hampshire contractor, while he was restoring a house in Plymouth. After some negotiations at her home in Plymouth, the parties agreed that 569

14 5 70 Pan Six. The Rules in Action Ronan would build an addition on the back of the Alton house. Ronan mailed a "Proposal and Estimate" to Schulansky in Plymouth, and she signed and returned it. I have attached a copy of the Proposal and Estimate for the job, signed by both parties. [Seep ED.] The work involved taking out part of the back wall of the house and building an 18' X 25' addition behind the living room, with a full cellar under the addition. The contractor was to excavate the earth from the original foundation, excavate the adjacent area to be occupied by the addition, lay a cellar floor and foundation walls in the excavated area to support the addition, and build the addition above the new cellar area. In order to provide access to the new cellar, the contractor was to break a doorway through the original foundation of the main house adjacent to the addition. There were problems from the beginning of the construction work. Ronan hired a backhoe operator named Jones to do the excavation work, as he had told Schulansky he would. When Jones excavated the earth from the original foundation with his backhoe, he discovered that the lower part of the foundation was simply loose rubble. Evidently, in colonial days it was fairly common to simply pile large rocks around the perimeter of the house site and build brick and mortar foundations on top of the rocks. These rubble foundations apparently last remarkably well as long as they are undisturbed, but are less stable if exposed, as was necessary here to construct the cellar for the new addition. Apparently, there was some discussion during the negotiations about possible problems with the old foundation. Schulansky asked Ronan if he anticipated any problems due to disturbance of the foundation. He responded that he doubted that it would be a problem, but if anything was loose he would do whatever was needed to provide adequate support for the addition. When Schulansky visited the site during construction and observed the excavation, she became concerned about the stability of the original foundation. For one thing, she could see that the foundation was just loose rubble, with no mortar or other support except the surrounding earth. For another, the backhoe had repeatedly ploughed into the old foundation in the course of excavating the new cellar, and loose rocks from the foundation were lying in the ditch next to the foundation. Schulansky asked Ronan several times if the old foundation was adequate and asked him to reinforce or rebriild it. Ronan refused to do any major reconstruction, on the ground that he had not agreed to do so and that it was unnecessary. Instead, he simply poured some cement in between the rocks and left it at that. In May, when the job was virtually complete, Schulansky began to n<;>tice cracks in the plaster walls of the living room, in the bedroom above it, and in the addition itself. She also observed some sagging in the floor at the joint between the main house and the addition. She had a friend who is a structural engineer come and look at the house. He concluded that the cracks

15 30. Fll'St Moves 571 resulted from settling of the old foundation, evidently due to shifting of the rubble after exposure during the excavation. He is unsure whether the settling resulted from negligent exca\ration (that is, the rubble being disturbed by the backhoe), or from the removal of the supporting earth on the outside of the old foundation. In either case, his opinion is that the sett:lfu.g will continue, causing major structural damage, unless the foundation is rebuilt. Because the addition is now completed, that reconstruction will be substantially more expensive than it would have been if it had been done during construction of the addition. He estimates that it could cost as much as $25,000 to jack. up the house and reconstruct the fuundation, and another $80,000 to repair the damage to the house due to the settlement of the foundation. Schulansky has tried to work this out with Ronan, but he denies any responsibility. Consequendy, she refused to make the :final payment under' the contract. I have talked to Ronan myself, and written him a demand letter, but it is clear that he will refuse to provide any satisfaction- to our client. Instead, he has threatened to file suit himself if Schulansky does not pay him the last progress payment under the contract. I intend to initiate suit against Ronan personally and against Ronan Construction Company fur breath of contract and negligence. Although we could probably bring suit in federal court on the basis of diversity (Ronan lives in Nashua, Ronan Construction is incorporated in New Hampshire, and its principal place of business is probably in New Hampshire)," I would prefer to litigate here in Plymouth Superior Court. I realize that we may have a claim against Jones as well. At the moment, however, I am not even sure of Jones's full name, much less where he lives, whether he is insured, and whether he is subject to personal jurisdiction here." We will have to learn more about Jones through discovery and amend to add him if necessary. But I have some hope that this can be settled quickly without the expense of lengthy, multi-party litigation. Please draft a complaint and summons to initiate this suit in the Superior Court for Plymouth County. If you need further information, talk to me or call Ms. Schulansky directly. As you know, Rules 8-11 of the Massachusetts Rules of Civil Procedure are similar to Rules 8-11 of the Federal Rules of Civil Procedure. One important distinction for our purposes is that it is unnecessary under the Massachusetts version of Rule 8 to allege the basis for subject matter jurisdiction. Compare Fed. R. Civ. P. 8(a)(l). We will also want to assert our right to a jury trial. See Mass. R. Civ. P. 38(b) (identical in relevant part to Fed. R. Civ. P. 38(b)).

16 572 Part Six. The Rules in Action ~he Associate's Response MEMORANDUM TO: FROM: RE: DATE: Phyllis Slater David E. Howard Complaint in Schulansky 11. Ronan Our file No December 1, 2004 I have attached a draft complaint and summons in the Schulansky matter. Please note that I have made both Richard Ronan and Ronan Construction Company defendants in the suit. (I refer to them collectively as "Ronan" in this memo.) The contract is signed by Richard Ronan, but on the stationery of Ronan Construction Company. At this stage, it is not clear whether RonaJJ. signed on behalf of the corporation or individually, or both. Since either or both may be liable, I have named both as defendants. As my draft complaint indicates, Schulansky may be entitled to relief on two separate theories, breach of contract and negligence. Ronan may have breached the contract in several ways. First, Ronan may have agreed to reconstruct the foundation if necessary, but failed to do so. The Proposal and Estimate is hardly dear on this; the only relevant provision is paragraph two, which requires construction of "... foundation walls to support 18' x 25' addition." However, an argument can be made that the old foundation wall at the ju.ncture of the house and the addition is part of the foundation of the addition, and therefore the contractor had a duty to make sure that that part of the foundation was solid as welf. Paragraphs 23 and 24 of the draft complaint assert this basis for recovery for breach of contract. Our argument that paragraph two required Ronan to reconstruct the foundation is bolstered by the negotiations between Ronan and Schulansky concerning possible reconstruction of the foundation if it turned out to be inadequate. The potential problem here is that these dlscussions took place before the Proposal and Estimate was signed. The defendants will no doubt argue that the written contract embodies the entire agreement between the parties, that on its face it does not include any obligation to reconstruct the old foundation, and that the parol evidence rule bars evidence of prior negotiations to vary the terms of the contract. See generally, Farnsworth on Contracts 7.12 ( 1998 ). We Will have to argue that paragraph two is ambiguous, so that evidence of the prior negotiations is proper to demonstrate the intent of the parties. Alternatively, it may tum out that the settling resulted from damage done to the foundation by Jones in the course of excavating the cellar. If this

17 30. First Moves 573.f ~ is true, Ronan would still be liable on a breach of contract theory. Certainly, an implied term of the contract between Ronan and Schulansky is that the work will be carried out in a careful manner, including the work that Ronan chooses to delegate to his employees or agents. See ~tatement (Second) of Contracts 318(3) (delegation of duties under contract does not discharge delegating party from its duty to pecfonn those duties). Even if it was Jones who damaged the foundation with the backhoe, this would constitute a breach of Ronan's duty to perform the contract work carefully. Thus, even if we cannot prove that Ronan had agreed to rebuild the foundation, this would constitute a separate breach of the contract, which gives rise to a claim for whatever subsidence resulted from the damage. I have included this allegation in paragraph 25 of the draft. The second claim for relief in my draft complaint asserts a tort claim for negligence, based on the allegation that the negligent excavation by Jones led to the subsidence. IfJones acted as Ronan's employee in performing the excavation work, Ronan will be liable for Jones's negligent acts, since employers are liable for the torts of their employees in the scope of employment. Restatement (Second) of Agency 219. It is not clear at this stage whether Jones operated as an employee or independent sub-contractor in performing the excavation work. The legal distinction between an employee and independent contractor turns on the employer's right to control the details of the work. Cowan 11. Eastern Racing.Aun., 330 Mass. 135, (1953);see generally J. Glannon, TheLawofTorts: Examples and Explanations, 3rd ed ; Restatement (Second) of Agency 220. If Ronan exercised detailed control over Jones in the manner of digging the new cellar, Jones acted as Ronan's employee, and Ronan would be liable for Jones's negligence. However, ifronan simply hired Jones to complete the excavation work in his own manner for an agreed price, Jones may have acted as an independent subcontractor. There is some reason to believe that Jones acted as Ronan's employee, since (according to Schulansky) Ronan appeared to direct him in the course of the excavation work. Thus, I have drafted the second claim fur relief on this theory. An important goal of discovery on our second claim for relief will be to ascertain the exact course of dealing between Ronan and Jones, to detetmine whether Jones acted as Ronan's employee or as an independent contractor. Once you have reviewed the draft and made a.jly changes, I will arrange for filib.g of the complaint and service on the defendants in New Hampshire.

18 574 Part Six. The Rnles in Action The :R..~ulting Documents COli!IMONWEALTH OF MA.BSACHUSETI'S PLYMOUTH COUNTY SUPERIOR COURT CIVIL ACTION NO. 1. DEBORAHSCBULANSKY Pla.intiff v. RICHARD L. RONAN RONAN CONSTRUCTION CO. COMPLAINT AND DEMAND FOR JURY TRIAL Defendants 2._, ~~ PARTIES The plaintiff, Deborah Schula.nsky, is an 1ndividua.l residing a.t 219 Pa.rker Street, Plymouth, Plymouth County, Ma.ssa. ohusetts. 2. The defendant Rona.n Construotl.on Company is a. corporation incorporated in New Hampshire with offtces a.t 1124 Newa.rk Road, Nashua., New Ha.mpsb1re. 3. The defendant Richard L. Ronan is an 1ndiv1dua.l residing a.t 3 Carleton Drive, Nashua., New Hampshire, a.nd the president of Ronan Construction Compa.ny. 4. At &11 relevant times, the d.efend.a.nt Richa.rd L. Rona.n acted a.s the authorized agent of Ronan CoDBtruction Compa.ey ~~ 5. { 5. The pla.tntiff owns a.n a.nti.q'ue oolonia.l house located a.t 53 School Street, Alton, New Hampshire. The house was built in 1782, a.ndis listed in thena.tionalregl.sterofhistoric Places. 6. InFebruary, 2004, thepla.1ntiffmetthe d.efenda.nt, Richa.rd L. Rorum, wblle Ronan wa.s worlrlng on a restora.ti.on project in Plymouth, Massa.ob.usetts. 7. At this first meeting, Ronan represented to the pla.int1ff that he wa.s experienced at restora.tion of historic houses in New Hampshire and :Massa.ahusetts.

19 30. First Moves In early Maroh, 2004, the pl8jnt1ff met With Rona.n a.t her home in Plymouth, Ma.ssaohusetts, to disouss the possibility of hiring h1m to build a.n addition on her house in Alton, New He.mpsblre. 9. Duifng tha.t meeting, the pa.rties d1scussed the need for extensive rebuilding Of the foundation of the ma.1n house ~a.cent to 'the planned addition. 1 o. During that meeting, the defendant Riohard L. Ronan agreedths.ta.nyneoossa.ryreoonstructionoftheoldfonndat1on would be included as pa.rt of the construction of an adequate foundation for the addition. 11. After the March meeting, Richard L, Rona.n sent a Proposal a.nd Estimate to the platnt1ff 1n Plymouth, Massachusetts, describing the work to be done a.nd offering to perform the work for $60,000. A oopy of the Proposal a.nd Est~te is 6. ~~-- atta.ched to this oomplajnt as Exhibit A. 12. The pl&intiff a.coepted the defendants' offer by signing the Proposal and Est1ma.te and mailing it to the defendants, at their office in Nashua, New Hampshire, on April 3, The defendants commenoed work on the addition on April IS, 2004, a.nd oontinued until June 3, In the COUI'Se'Of the work, the defendants or their agents excavated the earth from the outside of the foundation of the me.in house to a. depth of appro:ldmately seven feet. 16. Tb1s excavation revealed that the base of the foundation consisted of loose rooks piled on top of each other a.nd held In place by the sul'l'oullding earth. 16. In the process of excavation, the defendants ortheira.gents damaged the foundation of the m&1n house by d1ggfug up and displacing large bouldel>s, wb!ch formed part of that founda tion As a result of the removal of the supporting earth outside the foundation, or the damage done to it durlng the exoa.va.tion, or both, it beca.me necessa.ry to reoonstruct this part of the foundation to a.dequately support the ma.1n house and the.addition. 18. Despite their agreement to do so, the defendants falled to reconstruct the ortglna.l foundation to provide adequate suppprt for the bouse and the a.ddition. 19. Even after the plajntiff broug'ht the problem to the defendants' attention during construction, a.nd demanded that they reconstruct the foundation in acoorda.nce with their agreement, the defendants refused to do so. 20. As a result of the ~equate foundation work, the ma.1n house and the addition ba.ve susta.ined major

20 576 Part Six. The Rules in Action structural damage, inclu.dhlg ora.oks in the walls and sa.ggtng of the first floor 1mmed1a.tely a.bove the affected area F.IRBT CLAIM FOR RELIEF: BREACH OF CONTRACT 21. The plaintiff repeats a.nd rea.lleges the allegations 1n pa.ra.gra.phs 1-20 of the oompla.1n.t. 22. The Proposal and Eat1mate signed by the defend&nt Richard.L. Ronana.nd the piaintiff constltutes a. wioitten contra.ct for a valuable considera.tl.on between the defendants a.nd the pla.1ntiff. 23. Under paragraph two of the contract, the defendants agreed to construct a.n adequ&te foundation to support the addition and a4)acent portion of the ma.1n house. 24. The defendants brea.ched the contract by failing to perform their obligation to construat an e.dequa.te foundation for the additlon. 26. The defendants also brea.ohed the contract by fa.wng to perform the excavation work requ:lred. by the contract in a. ca.reful ):na.nner, which resulted in da.m.a.ge to the existing foundation of the house. 26. The pla.lntiff made all progress payments under the contract in a thnely manner, until she became aware of the defendants' brea.oh. 27. As a result of the defendants' breach, both the ma.ln house and the addition ha.ve susta.1ned severe structural da.ma.ge, which w1ll require extensive repair and reconstruction. SECOND ClLAIM ~RELIEF: NEGLIGENCE 28. The pla.intiff repeats and reaj.ieges the allegations in paragraphs 1-20 of the compla.lnt. 29. In the OOUl'lle of the construction of the addition. the defend&nts ar their employees neg'hgently excavated the area. adjacent to the foundation of the ma.1n house. 30. As a result of this negligent ex:oa.va.tion, the foundation of the main house was dtspla.ced a.nd. da.m.a.ged, causing subsidence of the foundation a.nd structura.l damage to the ma.1n house and the a.dd1t1on.

21 30. First Moves = _. DEMAND FOR RELIEF WHEREFoRE, the pla.intiff dema.ndsjudgmentin the amount of her actual d.a.ma.ges plus interest and costs, a.nd such other relief as the court finds just and equitable f----_.. DEMAND FOR JURY TRIAL Pursuant to Mass. R. Civ. P. 38(b), the pl.a.intiff d.emb.ndbjury tl'ibj. of all issues triable of right by a jury r ~-- - :rt,liw SlJ$t, Phyllis Slater Gomez, RobbinS and Slater Attorney for Plaintiff 322 Puritan Ro&d Plymouth, MA (508)

22 578 Part Six. The Rules in Action Exhib1tA RONAN CONSTRUCTION CO Newa.rk Road Nashua, New Hampshire TO: RE: Debora.b. Schula.nsky 219 Pa.rker Street Plymouth, MA Addition to premises a.t 53 School Street, Alton, New Hampshire DATE: March 18,2004, 1. ' ",, ~.~ r PROPOSAL AND ESTIUATE Excavate 18' x 26' x 7' deep area at l'ig'bt rear of house; remove f:l.ll. Construct footings, oell.a.r floor, and founda.tion walls to support 18' x 26' a.ddition. Cut doorway through present found.e.tton into new cellar area. Construct one-story addition with pea.ked roof and llilflnished attic crawl space -standard trame oodbtruotion, includ1dg c:eda.r cla.pboa.rd siding a.nd. a.sp~t sbingle roof. 5. Two standard double-hudg windows each side (west a.nd. east), and two 6' ba,:v windows (double glazed) on main south wan. 6. Interior walls sta.nda.rd drywa.ll construction; clear ms.ple fl.nish floor a.nd baseboards. 7. Remove wall where addition abuts house; support upper floors with steel beam spa.milng opentng. 8. Clean-up of site; broom olean, no seeding or plantln.g. 9. Electrical work to be done by sepa.ra.te contractor hired by owner. 10. Contra.ctor reserves the right to sub-contract exoa.vattng a.nd concrete work. 11. Work to be completed by June 20, 2004.

23 30. First Moves 579 Estimated Cost: P~entschedtae: $60,000 $6,000 on completion of exoa.va.tion $6,000 on completion of foundation $10,000 on completion offra.m.1ng $10,000 on completion of exterior Finish work Ba.J.a.noe upon completion of job. Richard L. Ronan Bid accepted:.

24 580 Part Six. The Rules in Action PL Y>IOVTH, n. COMMO:O."WEALnt OP MASSA.C.IIl!SETTS SCPEIUOR COL"RT o ;PA.RTME:'ft OF TilE TRIAl. COllltT OF THE CO:MMO:W."EAL TH C:l\o1L A.CI"lOI'i NO. llichard L. ltonan.lllmad...ci1llbtdiu i gn.j:gmpa~- Dereadut(o) "l"o lbe abo e.namcd derendont: Sl~lONS Phyllis Slat or, \'oa are b.onb:r JUIIJmoaod aad r q irod to.. rn upon :~!.:-~~~~!!!~...!~~tlintiff attorney, wbooc addreso-ls m...euuu.-.&4..,.. ~clt~aa6q. &Dauwer to tbacomplaijol,.11icb il hcrewilh...-t.j up011 you. "fllllhln %1 cla)'ll &filii" service ortbls nmmons upoll yo11, tiduslvc oflhe day nrftr1"11:~. (f)'oii raillo du n,fud&llltlll byddauh.-jii be 12ka apldsi y<11l ror the relftc demanded id tbc co~~tplainl. V"u ""::1st rtqu(rod to file )'Oor anower 10 I be comploiotln lh~ offkot oft!m-'lcrk ofllolo cuurl I Pl;ymoutb ol~hrr berorc.. nke uron plaintiff altomev pr.. ubha a rn onable lime thernn... t:nlns otb..,..,.,. pro\"ldod by Rille 13(1), rour onswft" MUll SUit.. a CDUDitrclaim aay claim wbil:b you may ba ~ in<ttllt plalarur,... ida arisn olll or cbe enmactloa or -urrer~.e dur b cbt 111llj~r maller or lhr pl:alntllf daim or you will lhorhoer be barred rro111..._.ki"& such claim In any ocber..,ttan. \\lidrn, Barbara.1.RG11se [sqalre, at Plymuulb lilt _.!!JI.h.IJL day or.j?.!t.c:..,.j:_~ ~ ta the year orour l.nnl"cwo llaousond and ~-ft. :;z..,., o.erk. ~QTF.o; 1. I Tbk summaas Is lssuod panuanl to Rule 4 of lhe i\iassachuhtts Ruin or Clvlll'roctdure. 2. Wben more Ill all ue dererutetla Involved, Cbe IIIIICI or 1111 ddt~daais oh<tttld appear In tbo eaplloo. lr a separate sumiiiou is usod for each wreadant, itkh okoul be addrtutd to tile partlc~tlar ddflldiuii. J. I<~lhe plo!ntil"l't otlnrl!!!) : pleare elrelt type ohdiva iji>oiyed.tori;.."wotor Vohlde l"ort-coulracl Equllable Rdlef OIIter. -. PRQOf OF SEBVJCf:.OII PBQCf.SS J hereby corlify aad relura that on ~---~-..:;:.;_.100 ;"J servod a eopy oc lbe witbht lliidiiiods IOJOibor willla copy wilb 1 copy or lilt e<~mplalntl IINs acnoa, apaa '"" wldoi~~onamcd dtftlldanl, in tile fo)lowinc mnucr(sre )1111. R.Civ.l'. 4(d)(1-5)'---~ ~ Dalcd:.zoo.. _ ;u TO PROCES~~-" PLF..ASE PLA ~YOU.)tAJQ; SERVICE ON DEFESDA."'T rn THIS BOlt ru!.ljie ORIGIN ~'fi>o!'(q)py SEI!YEJ> ON DEfENJ)A.NT. loo 1

25 30. First Moves 581 Co~ents on the Schulansky Compl~t ' Although Schulansky's complaint has been drafted to comply with tile pleading requirements of the Massachusetts Rules of Civil Procedure (Mass. R. Civ. P ), those rules are very si.milar to Rules 8-11 of the Federal Rules of Civil Procedure. The following comments (keyed to the numbers to the left of the complaint) therefore refer to the rules generically unless the federal and state versions differ on the particular point under discussion. l. While some of the contents of pleadings are a matter of custom in a particular, court or personal preference of the drafting attorney, the Rules spedfically govern many aspects of pleadip.g. For example, Rule 1 0( a) requires every pleading to have a caption such as that in Schulansky's complaint. Under Rule 10( a), the caption must include the name of the court (Commonwealth of Massachusetts, Plymouth County, Superior Court Department), the docket number of the action (Civil Action No.), the names of the parties, and a designation of the pleading (Complaint and Demand for Jury Trial). The docket number is a number assigned to each case by the court clerk, for administrative purposes. On Schulansky's complaint, the docket number is left blank because the case will not be assigned a docket number until the complaint is filed with the clerk. 2. Note that Howard has included a number of subheadings in the complaint. W1)ile these are not required by the Rules, such subheadings are frequently included for the sake of clarity. Particularly in a lengthy complaint that asserts a number of claims, or where the factual allegations are complex, separate sections for Parties, Facts, and Claims for Reliefmake it easy for the court and the parties to quickly find and review parts of the complaint during motion arguments and other proceedings. In federal actions, a Jurisdittion subheading is frequently added because Fed. R. Civ. P. 8(a)(l) specmcally requires the plaintiff to allege the basis for subject matter jurisdiction over the action. Such an allegation is not required under Massachusetts Rule 8 because, unlike the federal district courts, the Superior Court is a court of general jurisdiction. For many simple cases, such as an action on a note or a straightforward motor vehicle tort case, the complaint may be so brief that subheadings are unnecessary. See the Appendix of Forms accompanying the Federal Rnles of Civil Procedure, Forms 3-18 for examples of such complaints. 3. The Federal Rules do not explicitly require separate paragraphs identifying the parties to the action. 1 However, it is customary to begin the complaint with descriptions of the plaintih{s) and the defendant(s). This information is important to various issues, including personal jurisdiction, I. The Massachusetts roles do, however, require that the residence or place of business of the parties be specified. Mass. R. Civ. P. lo(d).

26 582 Part Six. The llnles in Action venue, capacity to sue and be sued, and (particularly in federal diversity actions) subject matter jurisdiction. In Schulansky's complaint, for example, the allegation that Schulansky resides in Plymouth County indicates the plaintiffs basis under state law for laying venue there. See Mass. Gen. L. ch. 223, 1 (venue proper in county where plaintiff lives). 4. Many complaints will include a subheading entitled Facts, or Factual. Allegations, setting forth a brief description of the events that gave rise to :', the plaintiff's claim for relief. This type of breakdown is useful, particularly in complex cases, to distinguish the underlying facts giving rise to the claim from the plaintiff's asserted claims arising out of those facts. In Schulansky's case, for example, there is enough tactual background that a separate fact! section fitcilitates a dear understanding of her claims. It is true that Rnle 8 (a)(2) only requires a "short and plain statement of the claim," and that very brief, general allegations Will suffice to avoid dismissal. Conley v. Gibson, 355 U.S. 41, (1957). But a little more detail than the minimum required by the pleading rules will give the court a dearer picture of the case, from the plaintifl's point ofvicw. And since Rule 8(b) requires the defendant to respond paragraph by paragraph to the allegations in the complaint, a more detailed complaint will elicit more specific denials or admissions in the defendant's answer. 5. The Rules require all allegations in the body of the complaint to be set forth in numbered paragraphs. Rule 10(b). This facilitates quick reference to the allegations in the complaint. It also allows defendants to respond to each of the plaintiff's allegations by number and allows the plaintiff to incorporate allegations by number in later parts of the complaint, as Howard has done in paragraphs 21 and 28 of the Schulansky complaint. Rule l 0( b) also provides that the allegations in each paragraph of the complaint "shall be limited as far as practicable to a statement of a single set of circumstances... " However, reducing specificity to the atomic level (for example, by breaking Schulansky's paragraph five into three paragraphs), would make the complaint unduly tedious. The allegations in paragraph five all relate closely to the issue of the age and value of the house and form a logical grouping for a single paragraph. The Rule does not limit each paragraph to a single filet, but to a single "set of circumstances," and calls for a commonsense breakdown of allegations "as fur as practicable." 6. The Rules authorize parties to attach exhibits to their pleadings, as Schulansky has done here. Rule 10(c). Parties should exercise care in incorporating documents in the complaint, however, since doing so may constitute an admission at least of the authenticity of the documents, if not their accuracy. Here, for example, Schulansky's inclusion of the Proposal and Estimate, together with her allegation that it constitutes the contract between her and Ronan, may weaken her argument that Ronan had an additional duty, arising from their prior discussions, to repair the old foundation. See the Third Defense in Ronan's answer p. 607.

27 30. First Moves In paragraphs and 28~30, Howard has recast the factual allegations in terms of claims for relief for breach of contract and negligence. These sections of the complaint are intended to show the court that the facts alleged satisfy the elements of legally recognized claims that, if proved, entitle Schu Iansky to relief? The subheading Claim for Relieftrads the language of Rule 8 (a)(2), which requires the complaint to include a "short and plain statement of the claim showing that the pleader is entitled to relief." Here, Schulansky has asserted a right to relief under two distinct theories. If the court concludes that she has proved a right to recovery on either her contract theory or her tort theory, it will grant her whatever relief is proper under that claim. This "pleading in the alternative" is expressly authorized by Rule 8 (e)(2). The rules do not require the pleader to state the legal theory on which he claims a right to relief. A brief description of the "claim," that is, the events giving rise to the action, is sufficient. See Friedenthal, Kane & Miller, 5.7. However, it is certainly appropriate and helpful to allege the elements of each claim clearly, especially in cases involving multiple theories of relief based on the same underlying facts. See O'Donnelll'. Elgin,] & E. Ry. Co., 338 U.S. 384, 392 ( 1949) ("We no longer insist upon technical rules of pleading, but it will ever be difficult in a jury trial to segregate issues which counsel do not separate in their pleadw.g, preparation or thinking."). Separate pleading theories are often labeled as different "counts" instead of Claims for Relie In simple complaints, such subdivisions are unnecessary. See, e.g~, Appendix offorms accompanying Federal Rules of Civil Procedure, Form 17, which asserts two theories of relief quite clearly without separate,. counts or subheadings. Students sometimes ask why Schulansky's counsel assert two theories of relief. If they have a viable claim for breach of contract, why take on the extra burden of alleging and proving the negligence claim as well? Well, Schulansky's lawyers would do their client a serious disservice by omitting the negligence claim from their complaint. After all, they may notrecover on the breach of contract claim. Perhaps they missed the limitations period, or the jury will find that Schulansky had waived the rebuilding of the foundation, or for some other reason the contract theory may fall by the wayside. If so, Schulansky's counsel will clearly want to preserve their options, by asserting any other viable theories of relief based on the defendants' conduct. Indeed, they would likely be liable for malpractice if they put all their eggs in one 2. Schulansky might have other claims for relief in addition to the two asserted in the complaint. For example, other claims might be based on the failure of-ronan to properly supervise Jones or negligent selection of Jones as the subcontractor. For illustration purposes, however, I have tried to keep the complaint to a manageable length.

28 584 Part Six. The Rules in Action basket, by leaving out a viable negligence claim, only later to lose on the contract claim. Clients expect their lawyers to assert all supportable rights they may have, not pick and choose among them based on which they think has the best chance of success. Thus, lawyers feel considerable pressure to include any supportable theory of recovery in their complaints. Better to assert it and lose on it rather than leave it out and explain to the client later why they abandoned a claim that might have provided her some relief At the same time, lawyers are under considerable pressure under Rule 11 of the Rules of Civil Procedure not to assert theories for which they lack support. See note 11 below. Such conflicting pressures, among other things, make a litigator's life interesting. 8. :Rule 1 0( c) authorizes a pleader to incorporate prior allegations by reference in later parts of his pleading. Here Howard has done so in order to make clear that the breach of contract claim is based on the facts alleged in the cited paragraphs. 9. At the end of the complaint, Howard includes a demand for the relief Schu1ansky seeks on both claims, as required by Rule 8( a )(3 ). In this case, the relief sought is damages, but in other actions different types of relief are also commonly sought, such as specific performance; an injunction, a divorce, or a declaration of the rights of the parties. Attorneys differ as to Whether to put a demand for relief after each claim for relief, or to place a single demand at the end of the complaint. Clearly, if the relief requested differs on the different claims, separate demands for relief are approp.j;iate. For example, if Schulansky were seeking specific performance of the contract with Ronan, inserting separate demands for relief after each claim for relief would help to make it clear that specific performance is sought under the contract claim rather than the negligence claim (which would not support a demand for specific performance). Because she seeks only damages on each claim, however, and the measure of damages on each theory is apparently the same, either a single demand at the end of the complaint or demands after each claim would be appropriate. Compare the separate demands for relief in Ronan's third-party complaint, infra pp Note that the demand for relief in the Schulansky complaint does not state a specific dollar amount requested. This is because a Massachusetts statute bars plaintiffs from stating a specific dollar demand. Mass. Gen. L. ch. 231, 13B. Several states have enacted such statutes, to avoid adverse publicity and possible jury prejudice from inflated damage figures in pleadings. 10. Rule 38(b) provides that a demand for jury trial "may be indorsed upon a pleading," which means, in plain English, that it may be asserted in the complaint (or answer). Because the right to trial by jury is waived if not demanded within ten days of the close of the pleadings (see Rule 38(b)), it is wise to insert the demand for jury trial in the complaint. Otherwise,

29 30. First Moves 585 plaintifi's counsel may forget about it, and the period for seeking jury trial may slip by unnoticed. 11. Rule 11 governs signature of the complaint and other pleadings. 3 It requires the attorney to sign the complaint and state his address. The rule also imposes important ethical duties on attorneys who sign complaints and other court papers. Under Federal Rule 11, an attorney's signature on a complaint certifies to the court that the attorney believes, after reasonable inquiry, that the factual allegations in the complaint "have evidentiary support," or (for specifically identified allegations) "are.likely to have evidentiary support after a reasonable opportunity for further investigation or discovery." The attorney's signature also certifies that the legal positions taken in the complaint (in the Schulansky case, for -example, that the plaintiff has the right to sue for breach of contract, or that Ronan is liable for the acts oft ones) "are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." Rule 11 (b)(2). Last, the signing attorney certifies that the pleading or motion is not filed for any improper purpose. Rule ll (b)(1). The "reasonable inquiry" requirement was added to Federal Rule 11 in 1983 to strengthen the attorney's obligation to the court to avoid frivolous or unethical pleadings. This language docs not require Slater and Howard to complete their research or investigation before filing suit against Ronan, but it doys require them to have a factual basis beyond mere opinion or speculation to support the pleaded facts, as well as a colorable argument for the legal positions asserted in the complaint. The factual standard in Rule 11 would be met by the information Schulansky gave her attorneys about the construction problem before they drafted the complaint. They knew that the damage appeared shortly after the construction work began, in the area where the work was being done. They also knew' that an engineer had viewed the damage and concluded that it resulted from the inadequate construction work. This provides "evidentiary support" for the factual allegations in the Schulansky complaint. The rule does not require certainty or admissible evidence at this early stage of the suit, only a reasonable pre-filing inquiry. The- legal standard in Rule 11 would also be satisfied in the Schulanslzy case. Howard and Slater had a copy of the contract, which required Ronan to construct walls to support the addition. If the damage to the house resulted from inadequate support, that would arguably constitute a breach of the contract. In addition, the discussions between Ronan and Schulansky during the negotiations may well support a claim that Ronan had agreed to 3. The complaint is shown here with the attorney's signature affixed. Subsequent pleadings and motions have not been signed because they are suggested pleadings for the partner's review and have not yet been filed in court.

30 586 Pan Six. The Rules in Action reinforce or rebuild the foundation. Similarly, if the engineer's alternative conclusion that the backhoe damaged the foundation is accurate, that would certainly constitute actionable negligence. Interestingly, the pleading requirements in Massachusetts Rule 11 are less stringent than those in Federal Rule 11. Under Massachusetts Rule 11, the: attorney's signature certifies that "to the best ofhls knowledge, information and belief there is good ground to support" the pleading, and that it is not interposed for delay. It does not impose a requirement of pre-filing inquiry and does not make reference to improper purposes other than delay (as, for. example, cscalating'the expense oflitigation to the point where the opponent cannot sustain it). In addition, the Massachusetts version only authorizes sanctions for "wilful violations." The Massachusetts rulemakers have been unwilling to impose the stricter requirements of Federal Rule 11. Consequently, sanctions for improper pleading are invoked less frequently in the Massachusetts state courts than in the federal courts. Comments on the Summons Rule 4 requires both a summons and complaint to be served on the defendant. The complaint is written by the plaintiff or his attorney, setting out the allegations against the defendant. The summons, by contrast, is an official order from the court requiring the defendant to respond to the complaint. Hence, Rple 4 requires that the summons bear the seal of the court and be signed by the clerk. In many courts printed summonses like the one used here, already signed and sealed, may be obtained in blank from the clerk's office. The plaintiff's attorney fills in the blanks and arranges for service of the summons with the complaint. Compare the printed summons with the detailed requirements of Federal Rule 4(a). (Mass. R Civ. P.4(b) closely parallels Federal Rule 4(a).) The swrunons includes the seal of the court, 4 the name of the court, space for the names of the parties, and the name and address of the plaintiff's attorney. It also warns the defendant, as required by Massachusetts Rule 4( b), that he must answer within 20 days or default judgment will be entered against hlm. See Rule 55, which authorizes entry of a default judgment if the defendant fails to respond to the complaint. The first paragraph of the summons quite properly distinguishes. between service and filing of the defendant's answer. Rule 12( a) requires the defendant to serve his answer on the plaintiff within 20 days of service of the complaint. See Chapter 17 for a discussion of methods of service of process. As the 4. The cow't seal is embossed on the Schultlnrley swnmons, but docs not show up in the reproduction.

31 30. First Moves 587 swnmons states, the answer must also be.filed with the court before it is served or within a reasonable time thereafter. Nothing in Rule 4(b}"requires inclusion of the second paragraph of the summons, warning defendants that they must assert compulsory counterclaims under Rule l3(a). The purpose of the warning is obviously to remind defendants, who must respond within a short time, that they must assert any compuisory counterclaims in their answer or risk loss of those claims. The printed sununons usually includes space. (here, at the bottom of the page) for the sheriff, constable, or other process server to provide proof of service. Sec Federal Rule 4(1). The server fills out the form, indicating the date and manner in which service was made, and files it with the court. If service is made directly by the plaintiff's attorney (for example, in a case such as this one, where service on the out-of-state defendants will likely be made by mail), a separate sworn affidavit must be filed setting forth the time and manner in which service was made. Federal Rule 4(1).

32

33 Form PROCESS Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions Rule 4 Rule Page A Scope of Rules B. In Personam Actions: Attachment and Garnishment C. In Rem Actions: Special Provisions D. Possessory, Petitory, and Partition Actions E. Actions in Rem and Quasi in Rem: General Provisions F. Limitation of Liability G. Forfeiture Actions in Rem Comparative Federal and State Provisions (See Index to Comparative State Provisions, Part XI, infra.) TITLE I. Rule 1. SCOPE OF RULES-ONE FORM OF ACTION Scope and Purpose These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding. Rule 2. One Form of Action There is one form of action-the civil action. TITLE II. COMMENCING OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS, AND ORDERS Rule 3. Commencing an Action A civil action is commenced by filing a complaint with the court. Comparative State Provision Kansas Statutes Annotated (a) A civil action is commenced at the time of: (1) Filing a petition with the court, if service of process is obtained or the first publication is made for service by publication within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff; or (2) service of process or first publication, if service of process or first publication is not made within the time specified by paragraph (1). Rule 4. Summons (a) Contents; Amendments. (1) Contents. A summons must: (A) name the court and the parties; 11

34 PLEADINGS AND MOTIONS Rule 7 (B) any day declared a holiday by the President or Congress; and (C) for periods that are measured after an event, any other day declared a holiday by the state where the district court is located. (b) Extending Time. (1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time: (A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act because of excusable neglect. (2) Exceptions. A court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b). (c) Motions, Notices of Hearing, and Mfidavits. ( 1) In General. A written motion and notice of the hearing must be served at least 14 days before the time specified for the hearing, with the following exceptions: (A) when the motion may be heard ex parte; (B) when these rules set a different time; or (C) when a court order-which a party may, for good cause, apply for ex parte-sets a different time. (2) Supporting Affidavit. Any affidavit supporting a motion must be served with the motion. Except as Rule 59(c) provides otherwise, any opposing affidavit must be served at least 7 days before the hearing, unless the court permits service at another time. (d) Additional Time Mter Certain Kinds of Service. When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a). TITLE III. PLEADINGS AND MOTIONS Rule 7. Pleadings Allowed; Form of Motions and Other Papers (a) Pleadings. Only these pleadings are allowed: (1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; 29

35 Rule 7 RULES OF CIVIL PROCEDURE (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer. (b) Motions and Other Papers. (1) In General. A request for a court order must be made by motion. The motion must: (A) be in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order; and (C) state the relief sought. (2) Form. The rules governing captions and other matters of form in pleadings apply to motions and other papers. Comparative State Provisions Pennsylvania Rules of Civil Procedure 1017(a) to (a) Except as provided by Rule , the pleadings in an action are limited (1) a complaint and an answer thereto, (2) a reply if the answer contains new matter, a counterclaim or a crossclaim, (3) a counter-reply if the reply to a counterclaim or cross-claim contains new matter, (4) a preliminary objection and a response thereto. Pennsylvania Rules of Civil Procedure 1029(b) & (d) (b) Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. * * * (d) Averments in a pleading to which no responsive pleading is required shall be deemed to be denied. Rule 7.1 Disclosure Statement (a) Who Must File; Contents. A nongovernmental corporate party must file two copies of a disclosure statement that: (1) identifies any parent corporation and any publicly held corporation owning 10% or more of its stock; or (2) states that there is no such corporation. (b) Time to File; Supplemental Filing. A party must: (1) file the disclosure statement with its first appearance, pleading, petition, motion, response, or other request addressed to the court; and (2) promptly file a supplemental statement if any required information changes. 30

36 Rule 8. General Rules of Pleading PLEADINGS AND MOTIONS Rule 8 (a) Claim for Relief. A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. (b) Defenses; Admissions and Denials. ( 1) In General. In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party. (2) Denials-Responding to the Substance. A denial must fairly respond to the substance of the allegation. (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading-including the jurisdictional grounds-may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. ( 4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. (5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. (6) Effect of Failing to Deny. An allegation-other than one relating to the amount of damages-is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided. (c) Mfirmative Defenses. (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: accord and satisfaction; arbitration and award; 31

37 Rule 8 RULES OF CIVIL PROCEDURE assumption of risk; contributory negligence; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver. (2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so. (d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency. (1) In General. Each allegation must be simple, concise, and direct. No technical form is required. (2) Alternative Statements of a Claim or Defense. A party may set out two or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient. (3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency. (e) Construing Pleadings. Pleadings must be construed so as to do justice. 1. Stating a right to relief Comparative State Provisions (a) Rule B(a) California Civil Procedure Code (a)(l) A complaint or cross-complaint shall contain * * * the following: 32

38 PLEADINGS AND MOTIONS Rule 8 (1) A statement of the facts constituting the cause of action, in ordinary and concise language. New York Civil Practice Law and Rules 3013 Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense. New York Civil Practice Law and Rules 3041 Any party may require any other party to give a bill of particulars of such party's claim, or a copy of the items of the account alleged in a pleading. * * * New York Civil Practice Law and Rules 3043 (a) Specified particulars. In actions to recover for personal injuries the following particulars may be required: (1) The date and approximate time of day of the occurrence; (2) Its approximate location; (3) General statement of the acts or om1sswns constituting the negligence claimed; (4) Where notice of a condition is a prerequisite, whether actual or constructive notice is claimed; (5) If actual notice is claimed, a statement of when and to whom it was given; (6) Statement of the injuries and description of those claimed to be permanent, and in an action designated in * * * [ 5104(a)] of the insurance law, for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, in what respect plaintiff has sustained a serious injury, as defined in * * * [ 5102(d)] of the insurance law, or economic loss greater than basic economic loss, as defined in* * * [ 5102(a)] of the insurance law; (7) Length of time confined to bed and to house; (8) Length of time incapacitated from employment; and (9) Total amounts claimed as special damages for physicians' services and medical supplies; loss of earnings, with name and address of the employer; hospital expenses; nurses' services. (b) Supplemental bill of particulars without leave. A party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than thirty days prior to trial. Provided however that no new cause of action may be alleged or new injury claimed * * *. (c) Discretion of court. Nothing contained in the foregoing shall be deemed to limit the court in denying in a proper case, any one or more of the foregoing particulars, or in a proper case, in granting other, further or different particulars. See also North Carolina Rules of Civil Procedure, Rule 84--[Form] (3) Complaint for Negligence as set out following Form 11 of the Appendix of Forms, Federal Rules of Civil Procedure, infra p Pleading the relief sought California Civil Procedure Code (a)(2), (b) [A complaint or cross-complaint shall contain:] (a)(2) A demand for judgment for the relief to which the pleader claims to be entitled. If the recovery of money or damages is demanded, the amount demanded shall be stated. 33

39 I! T Rule 8 RULES OF CIVIL PROCEDURE (b) Notwithstanding subdivision (a), where an action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded shall not be stated * * *. Florida Statutes Annotated (1) In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. Georgia Code Annotated 9-ll-8(a)(2)(B) [An original complaint shall contain:] A demand for judgment for the relief to which the pleader deems himself entitled; provided, however, that in actions for medical malpractice, as defined in this Code section, in which a claim for unliquidated damages is made for $10, or less, the pleadings shall contain a demand for judgment in a sum certain; and, in actions for medical malpractice in which a claim for unliquidated damages is made for a sum exceeding $10,000.00, the demand for judgment shall state that the pleader "demands judgment in excess of $10,000.00," and no further monetary amount shall be stated. Relief in the alternative or of several different types may be demanded. Illinois Compiled Statutes ch. 735, 5/2-604 Every count in every complaint and counterclaim shall contain specific prayers for the relief to which the pleader deems himself or herself entitled except that in actions for injury to the person, no ad damnum may be pleaded except to the minimum extent necessary to comply with the circuit rules of assignment where the claim is filed. Relief may be requested in the alternative. Prayers for relief which the allegations of the pleadings do not sustain may be objected to on motion or in the answering pleading. In actions for injury to the person, any complaint filed which contains an ad damnum, except to the minimum extent necessary to comply with the circuit rules of assignment where the claim is filed, shall, on motion of a defendant or on the court's own motion, be dismissed without prejudice. Except in case of default, the prayer for relief does not limit the relief obtainable, but where other relief is sought the court shall, by proper orders, and upon terms that may be just, protect the adverse party against prejudice by reason of surprise. In case of default, if relief is sought, whether by amendment, counterclaim, or otherwise, beyond that prayed in the pleading to which the party is in default, notice shall be given the defaulted party as provided by rule. Nothing in this Section shall be construed as prohibiting the defendant from requesting of the plaintiff by interrogatory the amount of damages which will be sought. New York Civil Practice Law and Rules 3017(c) In an action to recover damages for personal injuries or wrongful death, the complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled. If the action is brought in the supreme court, the pleading shall also state whether or not the amount of damages sought exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction. Provided, however, that a party against whom an action to recover damages for personal injuries or wrongful death is brought, may at any time request a supplemental demand setting forth the total damages to which the pleader deems himself entitled. A supplemental demand shall be 34

40 PLEADINGS AND MOTIONS Rule 8 provided by the party bringing the action within fifteen days of the request. In the event the supplemental demand is not served within fifteen days, the court, on motion, may order that it be served. * * * 1. In general (b) Rule B(b)(l}-(4) Illinois Compiled Statutes ch. 735, 5/2-610 (a) Every answer and subsequent pleading shall contain an explicit admission or denial of each allegation of the pleading to which it relates. (b) Every allegation, except allegations of damages, not explicitly denied is admitted, unless the party states in his or her pleading that he or she has no knowledge thereof sufficient to form a belief, and attaches an affidavit of the truth of the statement of want of knowledge, or unless the party has had no opportunity to deny. (c) Denials must not be evasive, but must fairly answer the substance of the allegation denied. (d) If a party wishes to raise an issue as to the amount of damages only, he or she may do so by stating in his or her pleading that he or she desires to contest only the amount of the damages. 2. Importance of verification California Civil Procedure Code (d) If the complaint is * * * not verified, a general denial is sufficient but only puts in issue the material allegations of the complaint. If the complaint is verified, * * * [then, with exceptions for certain actions,] the denial of the allegations shall be made positively or according to the information and belief of the defendant. * * * California Civil Procedure Code 446(a) Every pleading shall be subscribed by the party or his or her attorney. * * * When the complaint is verified, the answer shall be verified. * * * (c) Rule 8(c) New York Civil Practice Law and Rules 3018(b) A party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as arbitration and award, collateral estoppel, culpable conduct claimed in diminution of damages * * *, discharge in bankruptcy, facts showing illegality either by statute or common law, fraud, infancy or other disability of the party defending, payment, release, res judicata, statute of frauds, or statute of limitation. The application of this subdivision shall not be confined to the instances enumerated. (d) Rule B(b)(S)-(6) New York Civil Practice Law and Rules 3018(a) A party shall deny those statements known or believed by him to be untrue. He shall specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief and this shall have the effect of a denial. All other statements of a pleading are deemed admitted, except that where no responsive pleading is permitted they are deemed denied or avoided. 35

41 r Rule 8 RULES OF CIVIL PROCEDURE (e) Rule B(d)(l) Colorado Rule of Civil Procedure 8(e)(l) Each averment of a pleading shall be simple, concise, and direct. When a pleader is without direct knowledge, allegations may be made upon information and belief. No technical forms of pleading or motions are required. Pleadings otherwise meeting the requirements of these rules shall not be considered objectionable for failure to state ultimate facts as distinguished from conclusions of law. (0 Rule 8(d)(2)-(3) Georgia Code Annotated (e)(2) A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them, if made independently, would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has, regardless of consistency and whether based on legal or on equitable grounds or on both. * * * Rule 9. Pleading Special Matters (a) Capacity or Authority to Sue; Legal Existence. (1) In General. Except when required to show that the court has jurisdiction, a pleading need not allege: (A) a party's capacity to sue or be sued; (B) a party's authority to sue or be sued in a representative capacity; or (C) the legal existence of an organized association of persons that is made a party. (2) Raising Those Issues. To raise any of those issues, a party must do so by a specific denial, which must state any supporting facts that are peculiarly within the party's knowledge. (b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally. (c) Conditions Precedent. In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity. (d) Official Document or Act. In pleading an official document or official act, it suffices to allege that the document was legally issued or the act legally done. (e) Judgment. In pleading a judgment or decision of a domestic or foreign court, a judicial or quasi-judicial tribunal, or a board or officer, it suffices to plead the judgment or decision without showing jurisdiction to render it. 36

42 Rule 11 RULES OF CIVIL PROCEDURE required that a court "shall impose" appropriate sanctions if a violation of the rule occurred. Additionally, the new rule makes clear that not only the attorney in violation of the rule, but also that attorney's firm, may be sanctioned, in effect overturning the Supreme Court's decision in Pavelic & Leflore v. Marvel Entertainment Group, 493 U.S. 120, llo S. Ct. 456, 107 L. Ed.2d 438 (1989). Finally, the language contained in subdivision (d) of the revised rule has been added to make clear that the provisions of Rule ll are inapplicable to discovery. Certification standards for discovery are contained in Rules 26(g) and 37. (c) Comparative State Provisions Georgia Code Annotated (b) Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. Georgia Code Annotated In all cases where the plaintiff files a pleading with an affidavit attached to the effect that the facts stated in the pleading are true to the best of his knowledge and belief, the defendant shall in like manner verify any answer. If the defendant is a corporation, the affidavit may be made by the president, vice-president, superintendent, or any officer or agent who knows, or whose official duty it is to know, about the matters set out in the answer. Georgia Code Annotated (a) The action for divorce shall be brought by written petition and process, the petition being verified by the petitioner. Pennsylvania Rule of Civil Procedure 1024 (a) Every pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer's personal knowledge or information and belief and shall be verified. The signer need not aver the source of the information or expectation of ability to prove the averment or denial at the trial. A pleading may be verified upon personal knowledge as to a part and upon information and belief as to the remainder. (b) If a pleading contains averments which are inconsistent in fact, the verification shall state that the signer has been unable after reasonable investigation to ascertain which of the inconsistent averments, specifying them, are true but that the signer has knowledge or information sufficient to form a belief that one of them is true. (c) The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of the person's information as to matters not stated upon his or her own knowledge and the reason why the verification is not made by a party. Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing (a) Time to Serve a Responsive Pleading. (1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows: 42

43 PLEADINGS AND MOTIONS Rule 12 (A) A defendant must serve an answer: (i) within 21 days after being served with the summons and complaint; or (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States. (B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim. (C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time. (2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney. (3) United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later. (4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows: (A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or (B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served. (b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; ( 4) insufficient process; (5) insufficient service of process; 43

44 Rule 12 RULES OF CIVIL PROCEDURE (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19. A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion. (c) Motion for Judgment on the Pleadings. After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings. (d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. (e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order. (f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. (g) Joining Motions. (1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule. (2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion. (h) Waiving and Preserving Certain Defenses. 44

45 PLEADINGS AND MOTIONS Rule 12 (1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)-(5) by: (A) omitting it from a motion m the circumstances described in Rule 12(g)(2); or (B) failing to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(l) as a matter of course. (2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised: (A) in any pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule 12(c); or (C) at trial. (3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action. (i) Hearing Before Trial. If a party so moves, any defense listed in Rule 12(b)(l)-(7)-whether made in a pleading or by motion-and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial. Comparative State Provisions and Notes on Amendments to Federal Rule 12 Maryland Rule (a) Rule 12(a) (a) General Rule. A party shall file an answer to an original complaint, counterclaim, cross-claim, or third-party claim within 30 days after being served, except as provided by sections (b) and (c) of this Rule. (b) Exceptions. (1) A defendant who is served with an original pleading outside of the State but within the United States shall file an answer within 60 days after being served. (2) A defendant who is served with an original pleading by publication or posting, pursuant to Rule 2-122, shall file an answer within the time specified in the notice. (3) A person [whose required agent is] * * * served with an original pleading by service upon the State Department of Assessments and Taxation, the Insurance Commissioner, or some other agency of the State authorized by statute to receive process shall file an answer within 60 days after being served. (4) The United States or an officer or agency of the United States served with an original pleading pursuant to Rule 2-124(m) or (n) shall file an answer within 60 days after being served. (5) A defendant who is served with an original pleading outside of the United States shall file an answer within 90 days after being served. 45

46 Rule 12 RULES OF CIVIL PROCEDURE (6) If rules for special proceedings, or statutes of this State or of the United States, provide for a different time to answer, the answer shall be filed as provided by those rules or statutes. (c) Automatic Extension. When a motion is filed pursuant to Rule 2-322, the time for filing an answer is extended without special order to 15 days after entry of the court's order on the motion or, if the court grants a motion for a more definite statement, to 15 days after the service of the more definite statement. Missouri Rule of Civil Procedure 55.25(a) A defendant shall file an answer within thirty days after the service of the summons and petition, except where service by mail is had, in which event a defendant shall file an answer within thirty days after the acknowledgment of receipt of summons and petition or return registered or certified mail receipt is filed in the case, or within forty-five days after the first publication of notice if neither personal service nor service by mail is had. 1. In general (b) Rule 12(b) California Civil Procedure Code The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer * * * to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. (c) There is another action pending between the same parties on the same cause of action. (d) There is a defect or misjoinder of parties. (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. * * * "[U]ncertain" includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. * * * California Civil Procedure Code (a) When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading. (b) When any ground for objection to a complaint or cross-complaint does not appear on the face of the pleading, the objection may be taken by answer. (c) A party objecting to a complaint or cross-complaint may demur and answer at the same time. California Civil Procedure Code A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded. 46

47 PLEADINGS AND MOTIONS Rule 12 California Civil Procedure Code (b) If the party against whom an answer has been filed fails to demur thereto, that party is deemed to have waived the objection unless it is an objection that the answer does not state facts sufficient to constitute a defense. 2. Challenging jurisdiction over the subject matter Pennsylvania Rule of Civil Procedure 213(f) When an action is commenced in a court which has no jurisdiction over the subject matter of the action it shall not be dismissed if there is another court of appropriate jurisdiction within the Commonwealth in which the action could have originally been brought but the court shall transfer the action at the cost of the plaintiff to the court of appropriate jurisdiction. * * * 3. Challenging venue Illinois Compiled Statutes ch. 735, 5/2-104(b) All objections of improper venue are waived by a defendant unless a motion to transfer to a proper venue is made by the defendant on or before the date upon which he or she is required to appear or within any further time that may be granted him or her to answer or move with respect to the complaint, except that if a defendant upon whose residence venue depends is dismissed upon motion of plaintiff, a remaining defendant may promptly move for transfer as though the dismissed defendant had not been a party. 4. Challenging personal jurisdiction, process, and service of process Illinois Compiled Statutes ch. 735, 5/2-301 (a) Prior to the filing of any other pleading or motion other than a motion for an extension of time to answer or otherwise appear, a party may object to the court's jurisdiction over the party's person, either on the ground that the party is not amenable to process of a court of this State or on the ground of insufficiency of process or insufficiency of service of process, by filing a motion to dismiss the entire proceeding or any cause of action involved in the proceeding or by filing a motion to quash service of process. Such a motion may be made singly or included with others in a combined motion, but the parts of a combined motion must be identified in the manner described in Section Unless the facts that constitute the basis for the objection are apparent from papers already on file in the case, the motion must be supported by an affidavit setting forth those facts. (a-5) If the objecting party files a responsive pleading or a motion (other than a motion for an extension of time to answer or otherwise appear) prior to the filing of a motion in compliance with subsection (a), that party waives all objections to the court's jurisdiction over the party's person. (b) In disposing of a motion objecting to the court's jurisdiction over the person of the objecting party, the court shall consider all matters apparent from the papers on file in the case, affidavits submitted by any party, and any evidence adduced upon contested issues of fact. The court shall enter an appropriate order sustaining or overruling the objection. No determination of any issue of fact in connection with the objection is a determination of the merits of the case or any aspect thereof. A decision adverse to the objector does not preclude the objector from making any motion or defense which he or she might otherwise have made. (c) Error in ruling against the objecting party on the objection is waived by the party's taking part in further proceedings unless the objection is on the ground that the party is not amenable to process issued by a court of this State. 47

48 Rule 12 RULES OF CIVIL PROCEDURE Minnesota Rule of Civil Procedure 4.04(a)(2)(B) * * * When quasi in rem jurisdiction has been obtained, a party defending the action thereby submits personally to the jurisdiction of the court. An appearance solely to contest the validity of quasi in rem jurisdiction is not such a submission. (c) Rule 12(i) California Civil Procedure Code 597 When the answer pleads that the action is barred by the statute of limitations, or by a prior judgment, or that another action is pending upon the same cause of action, or sets up any other defense not involving the merits of the plaintiffs cause of action but constituting a bar or ground of abatement to the prosecution thereof, the court may, either upon its own motion or upon the motion of any party, proceed to the trial of the special defense or defenses before the trial of any other issue in the case * * *. California Civil Procedure Code [In a malpractice action against a doctor, dentist, nurse, or other medical professional] * * * if the answer pleads that the action is barred by the statute of limitations, and if any party so moves or the court upon its own motion requires, the issues raised thereby must be tried separately and before any other issues in the case are tried. * * * (d) Rule 12(e) California Civil Procedure Code The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section , to the pleading on any one or more of the following grounds: * * * CD The pleading is uncertain. * * * "[U]ncertain" includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. * * * (e) Rule 12(g)(2) and (h)-comments Subdivisions (g)(2) and (h) state that certain specified defenses which were available to a party when she made a preanswer motion, but which she omitted from the motion, are waived. The specified defenses are lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process (see Rule 12(b)(2)-(5)). A party who by motion invites the court to pass upon a threshold defense should bring forward all the specified defenses she then has and thus allow the court to do a reasonably complete job. The specified defenses are of such a character that they should not be delayed and brought up for the first time by means of an application to the court to amend the responsive pleading. Successive motions are forbidden. Rule 13. Counterclaim and Crossclaim (a) Compulsory Counterclaim. (1) In General. A pleading must state as a counterclaim any claim that-at the time of its service-the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and 48

49 Responding to the Complaint

50

51 32 The Defendants' Perspective: Ronan's Answer and Counterclaim The Drafting Request l _: TO: FROM: RE: Marcia Losordo Associate Arthur Ackerman MEMORANDUM Answer and counterclaim in Schulansky,, Ronan U.S. District Court No DATE: December 28, 2004 Thank you for your informative memo and removal documents in this case. I have filed the notice of removal today and notified the plaintiff and the state court, so we are officially in federal court. I have decided to file an answer to the complaint (instead of a Rule 12(b) motion) and would appreciate your assistance in drafting it. I realize that yori. have not yet had any Christmas vacation, but as your memo indicates, we are under the gun because Fed. R. Civ. P. Sl(c) requires us to respond to the complaint within five days of removing the case. 599

52 600 Part Six. The Rnles in Action ' r 1 l. j Not surprisingly, Dick Ronan's version of the facts in this case differs significantly from the allegations in Schulansky's complaint. First of all, although there was some discussion about the old foundation during their negotiations, Ronan's position is that he never assumed responsibility for any extensive reconstruction work. He never said anything about rebuilding the foundation, except that he doubted it would be necessary. He did say he would pour cement into any gaps in the exposed boulders but definitely did not agree to anything more than that. He points out that reconstructing the foundation on a house that old is a very substantial job; he could never have quoted her the price he did if such reconstruction were included in the work. Second, according to Ronan, he and Schulansky discuss the problem again after the old foundation had been exposed. She asked him whether it ought to be rebuilt, and Ronan said that he did not tillnk it was necessary and that it was beyond the scope of the contract. He specifically recalls telling her at that time that he thought the foundation would be sufficient if he filled in the gaps with concrete, but "you can never be 100 percent sure -old houses are unpredictable." She agreed to his suggestion, and that is what he did. Ronan also denies any negligence in excavating the foundation. There were some loose boulders in the excavated area near the foundation, which SchuJanskyasswned had been knocked out by the backhoe. Ronan admits that the backhoe hit the foundation a number of times, but he thinks th.ose rocks were probably excavated from the new cellar area instead. He also states that digging the earth away from the foundation did not weaken it. According to him, it is the direct downward pressure of the structure on top of the rocks in the foundation, not the surrounding earth, that keeps the foundation -and the house itself-in place. Last, Ronan denies that Schulansky's house has settled as a result of his construction work or any defect in the old foundation. He claims that most of the cracks she refers to were already there when he inspected the house before he bid on the job; after all, the house is over 200 years old, and there is evidence of settling in every room of the house. WJille he does not doubt the good f.rith of the plaintiff, he thinks she simply had not noticed these problems until the construction work caused her to take a close look at the structure of the house. Please draft an ariswer to the Schulansky complaint, based on.ronan's understanding of the facts outlined above. Please contact Ronan directly for a.ny further information you need. Our answer should not only respond to the individual allegations in Schulansky's complaint, but also raise several additional defenses. First, I think. we should take the position that the Proposal and Estimate constitutes the entire agreement between the parties and that Ronan is under no duty to rebuild the foundation if the Proposal and Estimate does not require it. Even if there was some prior discussion in which Ronan arguably agreed to rebuild the foundation, it is the contract itse14 not the discussions leading up to it, that defines the parties' obligations. As you know, where a contract is clear and

53 32. The Defendants' Perspective 601 complete on its face, the parol evidence rule bars either party from varying or contradicting the terms of the contract by evidence of prior inconsistent negotiations. Here, the contract is clear: Paragraph two requites Ronan to build a foundation for the addition, not to rebuild the preexisting foundation. Second, Ronan states (and the plaintifps complaint admits) that Schulansky was present when the foundation was exposed. Ronan told her what he planned to do, and she evidently accepted his proposal to reinforce it rather than rebuild it. Thus, I think we can make a strong argument that Schulansky has waived any right to reconstruction of the old foundation. Our answer should also raise the objection that the court lacks personal jurisdiction over both defendants. I realize that :we could postpone answering by filing a motion to dismiss on this ground, but I have decided to answer instead. I am somewhat doubtful that the court will dismiss on this ground. I( the court postpones decision on the motion (as it may under Fed. R. Civ. P.12( d)), I would rather have our answer to the complaint, setting forth our position on the merits, before the court from the beginning of the litigation. Please also include a counterc_laim for the final payment under the contract, which Schulansky has never made. In addition, it is our position that Richard Ronan signed the contract as an agent ofronan Construction Company, not on his own behalf. Consequently, he was not a party to the contract and is not personally liable fur any breach of that contract. Please be careful in draft:i11g the answer to observe this distinction in responding to the allegations in the complaint and in drafting the counterclaim. We may also wish to file a third-party complaint against the excavation subcontractor, Arlen Jones. Please let me know whether this must be filed with the answer. I certainly would prefer to have more time to decide whether to file a third -party claim and, If so, whether there will be any jurisdictional problems involved. (Jones is apparently from New Hampsbfre, but I am not sure whether he may be subject to personal jurisdiction here on some ground.) The Associate's Response MEMORANDUM TO: FROM: RE: DATE: Arthur Ackerman Marcia Losordo Answer and Counterclaim in Schulamky l'. Ronan U.S. District Court No December 28, 2004

54 602 Part Six. The Rules in Action.I ~ I have attached a proposed answer and counterclaim in the Schulansky case. I have based my responses to the plaintiff's allegations on the facts as you set them out in your memo and on direct conversations with Dick Ronan. In responding to the plaintiff's first claim for relief, for breach of contract, I have consistently taken the position that Ronan's only obligation was w construct foundation walls for the addition, not for any part of the main house. The plaintiff's second claim for relief on a negligence theory is evidently premised on the assumption that Jones was an employee of either Ronan personally or Ronan Construction Company, so that one or the other would be liable for his negligence. However, it is not at all clear that Jones was an employee, as opposed to an independent contractor with It.onan. The decision turns on whether Ronan had the right of control over Jones in the detailed performance of the work. Restatement (Second) of Agency 220 (1958). If he did, Jones was an employee; if not, he acted as an independent contractor. From what Ronan tells me, it is unclear whether the court would characterize Jones as an employee of Ronan or as an independent contractor. On the one hand, Jones was paid a flat fee for the job pursuant to a letter agreement and used his own backhoe, &ct:ors that suggest that he was independent. Restatement (Second) of Agency 227 (1958). On the other, Jones worked for Ronan on a regular basis, and generally did whatever Ronan told him to do. These facts might support a finding that Jones was an employee. Where the facts could reasonably support the conclusion that Jones was independent, I conclude that it is proper under Fed. R. Civ. P.11 to deny that he was Ronan's employee, and I have done so. See paragraph 29 of the First Defense and the Sixth Defense. If you decide to file a third-party complaint against Jones, it need not be filed with the answer. You may serve a third-party complaint without leave of court within ten days of serving the answer in the original action. Fed. R. Civ. P. 14(a).After that you will need leave of court, after notice W the plaintiff,!;0 assert any third-party claims. Id. However, even if we file within the ten-day period for filing as of right, the court does not have to entertain the third -party claim. The decision to allow or dismiss a third-party claim is a discretionary one in each case. Moore's Federal Practice If the court concludes that entertaining the additional claim would not advance the efficient and fair resolution of the entire dispute, it may dismiss it at any time. As I read the technicalities of Fed. R. Civ. P.6(a), our answer is due on January 4. We have to answer within five days. Tuesday the 28th, the day on which the case was removed, does not count under the rule, but the 29th, 30th, and 31st do. Saturday, the lst, and Sunday, the 2nd don't count because weekend days don't count when the period is less than eleven days. See Rule 6(a), third sentence. So Monday, the 3rd is the fourth day, and our answer is

55 32. The Defendants' Perspective: 603 due on Tuesday,_ the 4th. Even though the holiday is coming up, please remember to save time to review the documents before that date. One last point you may wish to consider. Is it possible that, by seeking affirmative relief from Schulansky in our counterclaim, we Will waive our ob jection to personal jurisdiction? I have not researched this point but will do so if you think this is a possible problem. s.

56 604 Part Six. The Rules in Action The Resultittg ~oc11!11-ents UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETI'S l. DEBORAHSCHULANSKY Pla.intiff v. RICHARD L. RONAN, et aj.. Defendants CIVIL ACTION NO ANSWER AND COUNTERCLAJM 2.~r ~ FIRST DEFENSE ' 'i The defendants admit the allegations in paragraph one of the complaint. 2. The defendants admit the allegations lnpar&gl'aph two of the complaint. 3. The defendants admit the allegations in paragraph three of the complaint. 4. The defendants admit the a.llegations in paragraph four of the complajnt. 6. The defendants admit the allegations in paragraph five that the plaintiff owns a colonia.l home in.alton, New Hampshire, but a.re without sufficient knowledge or information to form a belief as to the truth of the rema1n1ng allegations in paragraph fl.ve of the complajnt. 6. The defendants admit the allegations in paragraph six of the compla.int The defendants a.dmit the allegation in paragraph seven that Richard Ronan told the plaintiff that he had worked on older houses to both states. The defendants deny the rema1n1nf; allegations in paragraph seven of the complaint. 8. The attendants admit the allegations in paragraph eight of the complaint. I i

57 32. The Defendants' Perspective The defeil.dants admit the a.uegation 1n paragraph Dine that the parties discussed the condition of the old founda.tion at the March meeting. The defendants deny the rema.iilfng a.uega. tlons in pa.rs.graph nine of the compla.tnt. 10. The defendants deny the allegation in para.g.raph ten that they, or either one of them, agreed to reconstruct the foundation, ortha.t such reconstruction was part of the construction of the foundation for the addition agreed to in the contract between the plaintiff and Ronan Construction Company. 11. The defendants admit the allegation in paragraph eleven tha.t the defenda.nt Richard Rona.n sent a Proposal a.nd. Esti mate to the pla.1ntiff. The defendants further state that the Proposal a.nd Estimate constituted a.n. offer by the Ronan Construction Company, not by the defendant Richard Ronan individua.l.ly. 12. The defendants admit the a.llega.tton in paragraph twelve that the plaintiff sl.gned and returned the Proposal and Estimate on or around Apr113, 2004, but further state tha.t the Proposal and Estimate constituted a.n offer solely by Ronan Constructl.on Compa.ny. 13. The defendants admit the allegations in paragraph thirteen of the compla.1nt. 14. The defendants admit the allegations in paragraph fourteen of the complaint. 16. The defendants admit the allegation 1n paragraph fifteen that the foundation consisted of loose boulders Without mortar. The defendants deny the rema.1ning allegations in pars.gl'a.ph fifteen of the compl.a1nt. 16. The defendants deny the allegations in para.gra.ph sixteen of the compla.int The defendants deny the a.llega.tions in paragraph seventeen of the complaint. 18. The defendants admit the allegation in pa.ra.gra.ph eighteen that they did not completely reconstruct the preexisting foundation, but deny that they had agreed to do so, or tll&t such reconstruction was necessary to provide adequate support for the house orthe addit;ion. The defendants didheav1lyreinforce the preexisting foundation with concrete in the course of constructing the addition. 19. The defendants deny the allegations in paragraph nlneteen of the complaint. 20. The defendants deny the allegations of paragraph twenty of the oomplajnt.

58 606 Part Six. The Rules in Action 5.,...,...,- ~ 21. The defendants repeat and rea.ilege their responses to the a.uega.tions in pa.ra.gra.phs one to twenty of the compla.int. 22. The defendants admit the a.llega.tion in paragraph twentytwo tha.t the Proposal a.nd Estimate constitutes a. contraot between Ronan Construction Company a.nd the plaintiff. The defendants deny tha.t Richs.rd L. Ronan is a. party to the contract. 23. The defendants admit the a.llega.tion in paragraph twentythree tha.t, under the contract, the defendant Ronan Construction Company agreed to construct an adequate foundation for the addition. They deny tha.t the contract imposed any obligation upon Ronan Construction Company to reconstruct the foundation of the ma.1nhouse. They deny that RiohardL. Ronan personally undertook any obligations under the contra.ot. 24. The defendants deny the a.ilega.tions in paragraph twentyfour of the complajnt The defendants deny the a.llega.tions in paragraph twent;yftve of the complajnt. 26. The defendants admit the a.llegatton in paragraph twentysix that the plaintiff made the first four progress payments under the contra.at, but deny tha.t they breached the contra.ot. The defendants further state tha.t the pla.lntfff ha.s refused to ma.ke the final payment due under the contract, in the amount of $20,000, although the defendant Ronan Construction Company has performed a.ll of its obligations under the contract in a. timely and satisfactory.ill.!ldd.er and ha.s demanded payment of the balance due under the contract. 27. The defendants deny the a.ilega.tions in paragraph twentyseven of the compla.int. 28. The defendants repea.t and reallege their responses to para.gra.phs one to twenty of the compla.int. 29. The defendants deny the a.nega.tions in paragraph twentynine of the compla.int. 30. The defendants deny the a.llegations in paragraph thirty of the compla.int. SECOND DEFENSE This a.ction must be dismissed because the court lacks personal jurisdiction over the defendants under the Fourteenth Amendment and the Massachusetts Long-Arm Statute, Mass. G.L. c. 223A, 3.

59 32. The Defendants' Perspective 607 THIRD DEFENSE The plbjntlff's first alajm for relief fa.lls to state a cla1m upon which relief can be granted, because the Proposala.:ild Esttma.te constitutes the entire agreement between the pa.rtles, and does not require a.ny reoonatruestf.on of the or1glnal foundation. FOURTH DEFENSE If the defendants had any obligation under the contract to reconstruat the preexisting foundation., the plaintiff waived performa.noe of that obh.ga.tl.on on or a. bout AprU 1 7, 2004, when she &greed th&t the defendants could fulflll their obligations under the contra.ct by re1dforol,ng the preexisting foundation with cement. m!!!defense The plaint1ff's first cla1m. for relief fa.ils to state a. cls.1m. upon which relief can be granted a.ga.inst the defendant Richard L. Rona.n, because he was not a. pa.rty to the contract. ~DEFENSE Iftherewasa.nynegligenceintheexca.va.tionofthefoun!i&tion., that negllgenoe was solely the a.ct of Arlen Jones, an independent contractor for whose negligence the defendants cannot be held liable. 8. -,_... 'WHEREFORE, the defendants request that the c~ dismiss the plaintiff's complaint a.nd a.wa.rd the defendants their oostb, together with such other relief a.s the court flnds just a.nd equitable '!"""" COUNTERCLAIM OF RONAN CONSTRUCTION COMPANY -BREACHOF CONTRACt' The defendant Ronan Constructl.on Compa.ny countero1&1ms aga.tnst the pla.1ntiff a.s follows: l 0. ~ ~ 1. This court bas subject ma.tter jur1sd1estf.on of this a.ction under Artlale m, 2 of the United States Constitution a.nd 28 u.s.a Th1s countercl.&lm ib a. compulsory counterola.tin underfed. R. Civ. P. 13(a.). This courtha.s supplem.entaljurisd1estf.on over the oounterola.tm under 28 u.s.a. 1367(&).

60 608 Part Six. The Rules in Action , The signed Proposal and Estimate attached to the pla.in tiff's compla.l.nt constitutes a valld contract between the pla1ntiff and the defendant Ronan Construction Company. 3. Under tha.t contra.ct, the pla.lnttff agreed to pa.y Ronan Construction Company $60,000 for the construction of a.n a.cl.dition to her home at 63 School Street, Alton, New Hampshire. 4. The defend.a.nt Ronan Construction Company has ful.l,y performed a.ll of its obliga.tions under the contract. 6. Although the defend.a.nt Ronan Construction Company has demanded payment of the final baj.a.nce due under the contract, the pla.intiff has fa.lled to pay Ronan Construotion Company the. final progress payment of $20,000. WHEREFORE, the defendant Rona.n Construction Compa.ny dema.ndsjudgment from the plaintiff in the amount of $20,000 and interest and costs and such other relief a.s the court ftnds just a.nd equitable. DEMAND FOR@.!!!: TRIAL Under Fed. R. Civ. P. 38(b), the defendants dema.ndjury trial of a.ll issues ra.ised by the plaintiff's complaint and the defendant Ronan Construction Company's counterclaim. 13.-=r-~~------~ Arthur Ackerma.n Ackerma.n, Sloan and ca.rtotis Attorney for the Defendants 69 State Street Boston, MA (617) CERTIFICATE OF SERVICE I hereby certify that on this date I served a true copy of the above answer and countercla.im upon Phyllis Slater, Gomez, Robbins and Sla.ter, 322 Purlta.n Roa.d, Plymouth, MA 02360, by First Cla.ss ma.il, postage prepaid. Da.te: Arthur Ackerman Ackerma.n, Sloan a.nd Ca.riotl.s 59 state Street Boston, UA ,{617)

61 32. The Defendants' Perspective 609 Comments on the Answer and Connterclaim l. Rule l 0( a) governs the caption of the answer as well as the complaint and all other pleadings. Note that the federal docket number is now known and will be used in all subsequent pleadings and other papers. 2..Rule 8(b) specifically requires the defendant to respond to each allegation in the complaint by admitting or denying the allegations, stating the parts that are true and denying the remainder, or stating that the defendant does not have enough information to assess the truth of the allegation. In his First Defense, Ronan complies with this requirement by responding, paragraph by paragraph, to the allegations in the plaintiff's complaint. Rule l O(b) requires these responses to be set forth in numbered paragraphs, and the drafting attorney here has numbered her admissions and denials to correspond to the appropriate paragraphs in the complaint. This will make it easy for the parties and the court to compare the pleadings during the course of the suit, in order to quickly ascertain the positions of the parties on the. various issues. In some cases, the defendant may group his responses to parts of the complaint in a single sentence. For example, the answer might state that "the defendant admits the allegations in paragraphs one to eleven and sixteen to twenty-one of the complaint," See, e.g., Official Fonn 20, accompanying the Federal Rules of Civil Procedure. This saves space and time, but in cases with a large number of paragraphs and varied responses it is Jess helpful for quick reference in comparing the complaint and the answer. 3. It is permissible for a party to respond by stating that he lacks sufficient information to admit or deny an allegation. Fed. R. Civ. P. 8(b ). The defendants here probably have no particular knowledge of the National Register of Historic Places and are under no duty to scurry around and verify this allegation in order to answer the complaint. 4. Rule 8(b) requires the defendant to respond dearly and forthrightly to the allegations of the complaint. ("Denials shall fairly meet the substance of the averments denied; When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much ofit as is true and material and shall deny only the remainder.") It would not be proper for the defendants here to simply deny the entire allegation in paragraph seven, because Ronan had told the plaintiff that he had worked on old houses. However, the defendants do not accept the plaintifps characterization of Ronan's statements and have therefore crafted their response to paragraph seven to negate any inference that Ronan represented himself as an expert in this area. A number of the defendants' other responses also admit some parts of the allegations but deny other parts or recharacterize allegations in the complaint. See, e.g., paragraphs ll, 15, 18, and 26.

62 610 Part Six. The Rules in Action. ;! 5. Rule 10(c) authorizes adoption by reference of parts ofa pleading in another part of the pleading. The language of the rule is general, so it is clear that a defendant -or any other pleader-may do so as well as a plaintiff. Because Schulanskyincorporated all ofher factual allegations by reference into her First Claim for Relief, Ronan has si@larly incorporated his answers to the earlier paragraphs in his answer to hu Fii-st Claim for Rclief. 6.. As you are probably aware, defending parties will frequently have further defenses to the plaintifrs claims, in addition to denials of the allegations in the complaint. After responding in the First Defense to each of the allegations of the complaint, the answer goes on to set forth several further defenses. This breakdown is proper under Rule lo(b ), which provides in part that "each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth." The defendants' Second Defense here is an objection to the court's power to adjudicate, on the ground that it lacks personal jurisdiction over the defendants. This objection could be raised by pre-answer motion under Rule 12(b ), but it do~ not have to be. It is always proper to include this objection in the answer instead of raising it by pre-answer motion, so long as no pre-answer motion is made. See Chapter 18, p As Ackerman's memo indicates, the decision to answer rather than move to dismiss is a tactical one. Careful counsel should be aware, however, that inserting an objection to personal jurisdiction in the answer, as the defendants have done here, may not be enough to preserve the defense. Some courts have held that defendants who assert the personal jurisdiction defense in the answer must subsequently take the initiative to seek a ruling on the issue, by moving to dismiss the case or asking for a hearing on the defense, or else forfeit the defense for failure to pursue it. See, e.g., Hamilton 1".Atttu Turner, Inc., 197 F.3d 58,61-62 (2d Cir. 1999). This is a serious trap for the unwary lawyer who raises the defense in the answer and assumes that the court will eventually get around to doing something about it. 7. The defendants' Fourth Defense raises an "aflirii;tative defense ofwai. ver." The defendants take the position that, even if the contract required reconstruction of the foundation and the defendants &i.led to do so, the plaintiff waived performance of this obligation by her assent to Ronan's alternative suggestion. An affirmative defense asserts new facts that avoid liability even if the plaintiff proves her basic allegations. It is akin to the old common law "confession and avoidance" device, except that the defendant need not admit the plaintiff's allegations ("confess") in order to allege additional facts that avoid liability. Unfonunately, many litigators tend to throw boilerplate affirmative defenses into every answer even though most of them are irrelevant to the particular case. Thus, many answers promiscuously assert passage of the statute of limitations, fallure to mitigate damages, comparative fault, unclean hands, I.

63 32. The Defendants' Perspective 611 the failure to fulfill conditions precedent, res judicata, and other affirmative defenses, although there is no support for them in the case. This is surely contrary to the spirit of the pleading rules, and often a clear violation of Fed. R. Civ. P. ll. The practice persists, however, because of human nature. litigators are more worried about a suit for malpractice based on leaving out an affirmative defense than they are about the court sanctioning them for throwing one in. A colleague, fed up with reading these misleading allegations, once moved to strike the most egregious ones from the defendant's answer. Although his motion was on solid legal footing, the judge was simply annoyed that he had taken up the court's time with the motion. Under Rule 8( e )(2 ), a defendant may plead inconsistently, and the Schu Jansky defendants have done so in their answer. In their First Defense, they deny that they agreed to reconstruct the foundation. In their Fourth Defense, they assert that, even if they did agree to do so, the plaintiff waived performance of that obligation. The order of the various defenses is not prescribed by the rules. On occasion,. you will see an answer that begins with objections and affirmative defenses and leaves the admissions and denials until later. Of paramount importance, of course, is that all defenses be raised in the answer, to avoid waiving any by omission. 8. Defendants frequently include a paragraph like this at the end of the answer, asking the court, on the basis of the defenses and denials in the answer, to dismiss the complaint. fu the federal courts (and state systems as well) a prevailing party is entitled to recover certain costs of suit, such as witness fees and thecostoftranscripts. See28 U.S.C Itiscustomarytoaskforthcse in the answer and, in a lawyerly excess of caution, to append a request for any other relief the court finds "just and equitable" as well. 9. It is entirely proper to include a counterclaim witliin the answer. It should be set apart from the rest of the answer, however, and dearly labeled as a counterclaim. If a counterclaiip is not clearly labeled as such, it may look a good deal like an affirmative defense. (Compare, for example, paragraph 26 of the answer, which could be construed to seek relief from Schulansky for the unpaid balance under the contract.) Unless it is clearly labeled as a counterclaim and set apart from the various defenses, it may be unclear whether Ronan is defending on the basis ofschulansky's failure to fulfill her obligations under the contract or seeking independent, affirmative. reliefby way of counterclaim. Note that Losordo has consistently taken the position in drafting the answer that the contract is between Ronan Construction Company and Schulansky. See paragraphs 10, 11, 12, 22, 23, and 26 of the First Defc:lise. Thus, the company is the proper party to assert the counterclaim for breach of the contract. Indeed, Losordo might have chosen to emphasize the difference in the positions of Ronan and Ronan Construction Company by filing completely separate answers for them. The rules do not require the defendants to file

64 612 Part Six. The Rules in Action ' I I r ]. a joint _answer, and in cases where their interests are clearly divergent, they will not do so. IO. Federal Rule 8(a) requires "a pleadingwhichsetsforth a claim for relief' to include a statement of the grounds for the court's jurisdiction. A counterclaim is such a pleading, and Losordo has accordingly asserted here that the court has supplemental jurisdiction over it. Supplemental jurisdiction is proper for this claim because it is a compulsory counterclaim. See Chapter IS, example4. St;rictly speaking, this is probably overpleading. Rule 8(a)(I) does not require a jurisdiction allegation if the court already has jurisdiction (i.e., if an earlier pleading has already provided a basis for jurisdiction over the action), and the new pleading does not require "new grounds" for jurisdiction. In this case, the court has jurisdiction over the main claim based on diversity, and supplemental jurisdiction over the related counterclaim is arguably not a "new ground." However, since Schularisky's complaint was originally filed in state court, it contained no explicit allegation as to the basis of jurisdiction, and it is certainly appropriate, even if not required, to assert the ground of jurisdiction in the counterclaim. The Rule 8(a)( I) requirement to state the ground of the court's jurisdiction refers to subject matter jurisdiction, not personal jurisdiction. Sterling Homex Corp. "' HomR-SOte Co., 437 F.2d 87, 88 (2d Cir. I97l). It is not necessary to assert in a pleading that the court has personal jurisdiction over the defendant, but, of course, the court must have it in order to proceed. II. The general rules of pleading govern the allegations in a counterclaim, including the use of numbered paragraphs and inclusion of a demand for relie 1 Like an original complaint, a counterclaim may include a number of claims for relief based on different theories. It is even penni.ssib!e to assert completely unrelated counterclaims (see Fed R. Civ. P. I3(b)), although there will not be supplemental jurisdiction over such claims. Unlike the common law, where the parties might plead back and forth a number of times before a single issue'is reached, the answer usually ends the pleadings under the Federal Rules. However, Fed. R Civ. P. 7 (a) does require the plaintiff to reply to a coimterclaim if it is "denominated as such." This means that if the defendant does not clearly label the counterclaim in the answer, the plaintiff need not file a reply. Thus, he need not guess whether vague allegations in an answer are affirmative defenses, denials, or 1. In putting a dollar demand in his counterclaim, Ronan has not ignored Mass. Gen. L. ch. 231, 13B, the statute that bars putting a dollar demand in some complaints. That statute only bars a dollar demand in cases of unliquidated damages, that is, damages that cannot easily be calculated. In cases where the damages can be easily ascertained by calculation, a specific demand is proper. Here, all Ronan has to do to ascertain the damages is to subtract the earlier progress payments from the contract price.

65 32. The Dd'endants' Perspective 613 counterclaims. Schulansky would be required to file a reply to this counterclaim, since Ronan's counsel has clearly labeled it as such, putting Schulansky on notice that Ronan is claiming affirmative relief from her. The plaintiff's reply is governed by the same pkading requirements as Ronan's answer and should include responses to each of the paragraphs in the counterclaim as well as 'll.flkmative defenses. Of course, the reply will only address the allegations in the counterclaim itself, since the parties' positions on the main claim are already established by the complaint and the answer. The reply must be served within 20 days after service of the answer. Fed. R. Civ. P. l2(a)(2). 12. Losordo has followed her own suggestion in her memo on removal (see iofra p. 592) and included a demand for jury trial on the counterclaim. It may be that the jury demand is unnecessary, but at most it is redundant. Rather than invest substantial research time (and the client's money) in finding a definitive answer to this question, Losordo has simply erred on the side of caution by including it in the answer. Just to cover all the bases, she has also demanded jury trial on the main claim as well. 13. The answer, like the complaint and all other pleadings and motions, must be signed by the attorney and is subject to the ethical constraints and sanctions set forth in Fed. R. Civ. P The elaborate service provisions of Fed. R. Civ. P. 4 only govern service of the complaint. Subsequent papers may be served under the simpler provisions of Fed. R. Civ. P. S(b ), which authorizes service by personal delivery or regular mail to the attorney for the opposing party. Once properly notified that the suit has been commenced, the parties should be in contact and should watch the docket for subsequent filings. But a party who never receives initial notice of a suit cannot take such precautions. The certificate of service constitutes a representation by the serving attorney that he has complied with the service requirements ofrule S(b). It is often drafted as a separate document, but the local rules for the District of Massachusetts provide that the certificate of service must appear on the plead ing or motion itself, rather than on a separate sheet. Local Rule 5.2(b)(2). 2 Losordo raises an interesting question at the end of her memo, concerning the possibility that asserting the counterclaim might waive the defendant's objection to personal jurisdiction. In fact, if Ronan's attorneys look into this 2. Some district courts-including the District of Massachusc:tt:J -are now experimenting with clectronic filing of pleadings and other documents. When documents are filed clectronically, the court can "serve" thc:m on all parties by clc:ctronically forwarding thc:m to the: addres&c:s for an counscl ofrc:cord. Thus, no cc:rtificate of service: would be required. Doubtless, elc:ctronic filing and service: will become common practice in the near future.

66 614 Pan Six. The Rnlcs in Action issue, they will find that the courts are split on this question. Some cases have held that a defendant waives his objection to personal jurisdiction by asking the court to adjudicate a counterclaim. Others, however, have recognized that this puts the defendant in an awkward position, because Fed. R. Civ. P. 13(a) requires him to assert any counterclaim that arises out of the same events as the plaintifps claim. (Of course, the defendant could present the personal jurisdiction issue by pre-answer motion, thus obtaining resolution of that issue before answering.) Cf; Rates Technology Inc. 11. Nortel Networks Corp., 399 F.3d 1302 (Fed. Cir. 2005) (assertion of permission counterclaim did not waive properly asserted objection to personal jurisdiction); see generally SA Wright and Miller at 1397, which reviews this issue and suggests that assertion of a compulsory counterclaim should not waive the personal jurisdiction defense. One of the things that makes a litigation practice unnerving is the number of uncertainties that arise in the course of a case, in circumstances that make it impossible to give those issues the full attention they deserve. Here, the attorneys are under the gun to get their responsive pleading in and are doubtless handling many other matters as well. Many lawyers would never even have thought of this rather subtle ramification of the counterclaim. Even if their client could afford to have exhaustive research done on this point, it would have been hard for Ronan's lawyers to find the time to do it before answering. They probably would not have found a definitive answer even if they had researched the point. It is also interesting to compare the facts as stated in the Slater memo (pp ) and Ackerman's memo in this chapter. The dispute looks quite different from the two parties' points of view. It is unlikely that either is lying or deliberately distoning the facts; they just see things from different perspectives, like Republicans and Democrats, or Mainers and Californians. The truth, if there is such a thing in a case like this, is likely to be ambiguous and elusive. If there is a trial, the system will resolve the dispute onewayorthe other, but it is unlikely that it will definitely determine who is "right" or leave either party feeling fully satisfied for the effort and emotional stress it engenders. Naturally, the attorneys' job in drafting the pleadings, and in representing the parties generally, is to state the case most strongly from their clients' viewpoints. Hopefully, providing vigorous advocacy will not prevent them from seeing the facts as they are likely to play out at trial and advising their clients accordingly. But even if they keep some perspective on the case, there is little doubt that the lawyer's duty in an adversary system tends to accentuate the difl'erences in the parties' views rather than the search for common ground. This has spawned an increasing emphasis on alternatives to litigation, such as mediation, which try to educate the parties about each other's views and bring the parties together rather than focus, as the litigation system tends to, on the differenc~ in their points of view.

67 34 Preliminary Objections: Jones Seeks a Way Out The Drafting Request TO: FROM: RE: Phillip Torres Don Philbrook MEMORANDUM Arlen Jones Construction Case DATE: January 21, 2005 I represent Arlen Jones, a neighbor of mine who is in the excavation business. He has just been served with process in a federal court suit down in Boston, arising out of some work he did on a house over in Alton. I have attached the original complaint in the action and the third-party complaint against Jones. He is surprised and puzzled by the suit, since he thought the job went fine and the owner was happy. He is also concerned about defending an action down in Boston. Arlen is a local guy with a small business; he is hardly in a position to pay big city legal fees. (I'm not even sure he'u be able to manage mine.. I'll probably have to put in a pool so he can pay me offby doing the excavation!) Naturally, Jones would rather litigate up here than down in Boston, or, better still, get out of this suit entirely. It seems to me that we may

68 628 Part Six. The Rules in Action have several grounds for dismissal of this action by motion. First, it seems dubious to me that Jones should be subject to personal jurisdiction in Massachusetts on this claim. He negotiated with the general contractor, Ronan Construction Company, here in New Hampshire. He did the work in New Hampshire. The job was a small one at that, only a few days' work for something like $3,000. Whatever damages the owner suffered were suffered here. Thus, this claim does not arise out of any "minimum contacts" Jones has with Massachusetts. Nor is he subject to general in personam jurisdiction there he lives next door to me here in Littleton, and though he works in Massachusetts once in a while, he does not do business there regularly. Jones wasn't even served with process in the suit in Massachusetts; Ronan had: the summons and complaint served on Jones while he was working on a job down in Dover. Now, I'm just an old country lawyer, and you young fellas may know more about these things than I do, but it seems dubious to me that Jones could be served with process here in New Hampshire, and dragged down to defend a federal court case in Massachusetts, if he lacks minimum contacts with that state. Please do a little research on this issue. Don't go overboard on it -we're not talking million dollar damages here, and Jones can't afford to pay for overkill-but give it a few hours to see if we may have grounds for filing a Rule 12(b) motion to dismiss based on lack of personal jurisdiction and draft an appropriate motion for my signature if there is reasonable support for it. We may also be able to move to dismiss for lack: of subject matter jurisdiction, since we are from the same state as Ronan, the third-party plaintiff, and this is a state law claim. I believe there is a statute now that governs such ancillary claims in federal court. I haven't looked a tit for a while, but I thought it barred claims brought under Rule 14. Please research and advise me on this as well. If we can't get the claim against Jones dismissed under Fed. R. Civ. P. 12(b )( 1) or (2 ), perhaps we can convince the court to transfer this action to the District ofnew Hampshire under 28 U.S.C. 1404(a). It seems to me that it makes much more sense to litigate this case here than in Boston. The work was done here, both of the defendants and the third-party defendant live and do business here, and any damages resulting from the job were suffered here. I assume that most of the witnesses other than Schulansky will be from New Hampshire, since Jones tells me that all of Ronan's employees are also local. Please take a quick: look at the case law on the grounds for transfer of. venue. If the cases support our argument for transfer, please draft a separate motion to transfer this action to the District ofnew Hampshire and advise me as to whether you think we should file it along with our motion to dismiss or hold off until decision of that motion. Be sure to check the local rules of the District of Massachusetts for any special requirements pertaining to motions filed in that court. Feel free to call Jonci directly if you need further information from him.

69 34. Prelinililary Objections 633 The Resulting Documents UNITED STATES DISTRICT COURT DISTRICT OF MABSACHUSETI'S DEBORAH SCHULANSKY CIVlLACTIONNO Plaintiff v. THIRD-PARTYDEFENDANT'S RICHARD L. RONAN RONAN CONSTRUOI'ION CO.,MOTION TO DISMISS THE Defeb.da.nts 'l'rird-party COMPLAINT v..arlen JONES FOR LACK OF PERSONAL JURisDICTION Third-Party Defendant The third-party defendant,.arlen Jones, moves to clism.iss the th1rd-pa.rty compla.tnt under Fed. R. Civ. P. 12(b)(2) on the ground that the courl; Ia.cks person&ljurlsdiction over h1m on ~ claim. In support of the motion the third-party defendant states as follows: 1. The tbird-pa.rty defendant is not domiciled 1n Massachusetts or dol.ng bus1ness 1n Massachusetts on a. reguj.a.r ba.sis, a.s more tully a.ppea.rs from the.afflda.v1t of Arlen Jones, pa.t'a.gl'a.phs one a.nd three, a.tta.ohed a.s Exhibit A to th1s motion. 2. This cla1m a.rlses out of construction work performed by the third-party defenda.nt in Alton, New Hampshire, as more fully a.ppea.rs from pa.ra.gra.phs one to four Of the Tbird Pa.:IV Compla.!nt, a.nd pa.ra.gra.phs four a.nd :five of the a.tta.ched Affidavit of Arlen Jones. 3. The third-party defendant has no contacts With Ma.ssa.chusetts tha.t a.re :related to this ola.lm, a.s further appears from the Afftda.v1t of Arlen Jones.

70 634 Part Six. The Rules in Action 4. The exercise of persona.ljur1sd1ctlon over the thirdparty defendant 1n these c1roum.sta.nces exceeds the limits of due process under the United States Constitution. REQUEST FOR ORAL ARGUMENT The third-party defendant requests twenty minutes for oral argument on thls motio:o., pursua.nt to Loca.l. Rule 7.1 (D), and leave to flle a. supporting memorandum a.t a. time specified by the court. Donald R. Pbilbrook AttorneyforTlllrd-Pa.rtyDefenda.nt lla Grove street Littleton, New Hampshire (603)

71 636 Part Six. The Rules in Action 4. Th1s action arises out of renovation work performed by Rich.a.rd. Rona.n on the plaintiff's house in Alton, New Ha.mpshfre. The th1rd-pa.rty oompls.int ajleges a. rl.ght to relief for faulty exca.va.tion work performed a.s pa.rt of the renovation work a.t the Alton site. 5. All negotiations, agreements, preparation, and performance of the work giving rise to this ola.im took pla.ce in New Ha.mpsb1re. I did not solicit this job in Massachusetts nor perform a.ny act related to the events in suit inma.ssa.chusetts;nor was I a. ware until I received process in this s.otion that the plaintiff resided there. 6. I have never consented to suit in Massachusetts on this cla.1m. Arlen Jones Subscribed and sworn to before me this _ of, d.ai1 Nota.ryPubllc My commission expires:

72

73 332 S Thinking Like a Trial Lawyer, Pleadings, and Joinder M. REVIEW Question One Instructions: Complete the opinion of the tri8i court in the following case. Assume that the Federal Rules of Civil Procedure apply. Be a careful judge, who explains her or his actions. This question should take the full 90 minutes to

74 M. Review 333 answer completely; use at least half.the time thinking, not writing. Your rules supplement is the only source you should require (though you may cite to cases that we have studied). FLANNEL v. J. C. PENNY Justice, J.: The facts that underlie this lawsuit for $2.8 million are traceable to a dispute over $2.00 between a customer and the management of a retail store. Ms. Flannel seeks to ''make a federal case" -as certainly is her right under the existing statutes-out of the circumstances that befell her after she pur~ chased a pair of blue jeans for eight dollar8 at the J. C. Penny store in Capital City, Northeastern. The following facts are alleged in her complaint filed in district court. / The day af!;er she purchased the jeans, she discovered that the jeans were defective and returned them to the store. She requested that they give her a new pair or that they refund her the purchase price, which she had paid by personal check. The store refused. Ms. Flannel left the store with the jeans and then did two things: she stopped payment on her check and went and had the zipper replaced at the local cleaners at a cost of $2.00. With the repair bill in hand, she then returned to the store and demanded that the store pay her back for the cost of the repair. The customer-returns employee, Isabel Duffey, refused. Instead she made an oral demand of Ms. Flannel for $13.25 representing the original purchase price and the bank service handling charge for the stopped check. Ms. Flannel refused to honor this demand for payment in rather colorful language. The next day, the store's assistant manager, Douglas A. Stauffer, filed a criminal complaint against her, charging her with a vio1ation of the bad check statute. 18 N.G.L t. After the criminal complaint was filed, Ms. Flannel returned to the store and offered to pay the eight dol1ars; the offer was refused. Ms. Flannel went to see the store manager, Robert Boyd, who told Ms. Flannel that he had authorized the complaint because "you attempted fraud on my store." He also stated that he would not drop the complaint because "then the store would have to pay court costs and we want to make an example of you so that people don't try to stop checks on us and keep the goods." The.Be remarks were made in the px:esence of Ms. Flannel, her son and other customers. r '. ' ;. ' This question is based on a: Third Circuit case decided by Chief Judge Ruggero J. Aldisert, Rannels v. S. E. N"whols, Inc., 591 ~.2d 242 (3d Cir. 1979). t18 N.G.L., provides:. (a) Offense defined. A person commits an offense if &'he issues or passes a cheek or similar order for the payment of money, knowing that it will not be honored by the drawee... (b) Presumption. For the purposes of this section as well as in a:ay prosecution for theft committed by means of a bad check, an issuer is presumed to know that the check or order (other than a post dated check or order) would not be paid, if (1) the issuer had no account with the drawee at the time the check ar order was issued; or (2) payment was refused by the drawee for lack of funds, upon presentation within thirty days af):er issue, and tb.eii!8uer failed to make good within ten days after receiving notice of that refusal _ (c) Grading. An offense under this section is a misdemeanor ofth!-l second degree ifthe amouut of the check or order exceeds $200.00; otherwise it is a summary offense.

75 334 8 Thinking Like a Trial Lawyer, Pleadings, and: Joinder Ms. Flannel then wrote to the corporate president, Manfred Brecker, at the head office in New-Jersey, explaining the history of the transaction and aslring him to intervene and order his subordinates to drop the criminal complaint. She also told him that she was concerned about the defamation to her character and good standing in the community as she was the local PTA president and an elder in her church. His letter in response, as describeq in her complaint, shows that he was informed as to the facts of the transaction and that he supported the actions of his employees at the Capital City store in filing the criminal charges against her.. Ms. Flannel was tried at).d acquitted of- the bad check charge and later volunfurily paid the Capital City store $6.00 "in full satisfaction and settlement of her. debt." ' :t'ds. Flannel then filed suit in this.courtjor $2.8 million in damages for malicious-prosecution. Th~ elemeuts of the relevant Northeastern law on mali~ cious prosecution are: (1) the termination in the complainant's favor of the criminal proceedings; (2) want of probable cause for the criminal proceedings; and (3) malice. Probable cause has been defined as "a. reasonable ground of suspicion supported by circum~tances sufficiently s.trong in themselves as to make a cautious person, believe that the person accused is guilty of the chbrged <;>ffense." Malice has been defined as "the in~ntional doing of a wrongful ac;t without just cause or excuse, with an intent to inflict an injury or under cir-. cumstances that the law will imply an evil intent." The def~ndants have filed a 12(b)(6.) motion to dismiss, claiming that the allegations in the plaintiffs complaint fall short of-making out a claim for relief under Northeastern law. We rule that..... [Students: Complete the opinion, giving your J:-uling and your reaso~.]

76

77 . ~ Discovery

78

79 C.TheMechanics of Discovery 425 b. Depositions Depositionsare used by attorneys to question potential witnesses (both partiesand nonparties) under oath about their knowledge of and participationin certain events or circumstances concerning the underlying action. Depositions typically are conducted orally, and every word that is spoken isrecordedverbatim by a court reporter (or by mechanical means) and is transcribed.the witness (called the deponent) is given an opportunity to reviewthe transcript and make technical corrections. Fed. R. Civ. P. 30(e). Depositionsare widely thought to be the most important step of the formaldiscovery process. It is perhaps no surprise, then, that half of the twelvediscovery rules pertain solely to deposition practice. Read Fed. R. Civ, P. 27 through 32, which address a range of technicalities, including howdepositions should be noticed, under what circumstances a witness maybedeposed,before whom a deposition may be taken, and how a depositiontranscript may be used. A deposition may be scheduled on "reasonable notice" in writing. The noticingparty may ask the witness to bring documents along, but that invokesthe time limits of Fed. R. Civ. P. 34. See Fed. R. Civ. P. 30(b)(2). If thedeponentis a nonparty, the noticing party must also provide for the attendanceof the witness, usually by serving him with a subpoena. See Fed.R. Civ.P. 45. If a witness (whether a party or nonparty) fails to show upforthe deposition, she may be assessed to pay the expenses and fees ofthe noticingparty under Rule 30(g).

80 426 4 Discovery The no tici icing par t Y schedules the location of the.. deposition. and Usually identifies her own law office as the situs. DeposItIOns typically resemblea busmess. mee ti mg, ith the deponent and his counsel on one side ofthetable WI.' and onnosi opposmg counse I on the other. side.. Parties are entitled to attendany deposl iti IOns tak en In. their case, and It IS often. a. matter of strategy " who from each side, appears to observe a given deposition. Deponent ~ counselmay object to questions during the deposition, but the only objections that may preclude the deponent from answering the quastion posed are an objectionas to the form of the question and an ObjectIOn that to answer wouldreveal privileged information. All other answers.are reqmred and recorded,but remain "subject to the objection." Fed. R. ClV. P. 30(c)... There are at least five fundamental advantages to oral depositions, First, an oral deposition gives an attorney a chance to question potential witnesses under oath in a manner similar to trial. This may be particularly usefulasa means of assessing the demeanor of a witness under a variety of questioning styles. Second, while it is true that nearly all deponents will have beeo coached by an attorney prior to a deposition, responses to questionswill have a degree of spontaneity unavailable under other discovery methods. Third, in a deposition an attorney has the opportunity to follow up oninformation revealed in answers and to take the questioning in any newdirection that may reveal itself. Fourth, subject to the rules of evidence, anything recorded in a deposition is available for use at trial. Portions of depositions are often used to impeach a witness's testimony and can sub titute forlive testimony in cases where a witness is unavailable for trial. Fifth, nonparties may be deposed. Indeed, nonparties may also be subpoenaed to bringdocuments or other tangible items to the deposition and, thus, otherwise undiscoverable evidence may be obtained through questioning regarding those documents or items. The most significant disadvantage to taking depo itions is the expense. The party requesting the deposition must spend a significant amount oftime preparing for each deposition. And at hourly billing rates of everal hundred dollars an hour, this adds up quickly. Moreover, the counsel that noticesthe deposition must also hire a court reporter. The bill for a court reporter isthe sum of two numbers: (1) an appearance fee of approximately $100oran hourly rate of approximately $25, plus (2) a transcription fee of $3.50-$5.00 per page. Depending on the pace of the deposition, court reporters usually g~nerate p~g~s per hour. Thus even excluding the expense associated with the lawyers time, one seven-hour deposition will cost the requesting party approximately $2,000. In addition to these expenses, parties mustalso pay travel expenses when the. deponent is not local. Deponents alsosuffer costs, including preparation time spent with their counsel and, often,lost time fr?m work.. Since 1993, there has been a limitation on the numberof depositions. parties may take as a matter of right (see Fed. R. Civ. P. 30(a)(2?(A)(1));a 2000 amendment to Rule 30 requires that depositionsbecompleted m the equivalent of one seven-hour day (see Fed. R. Civ P. 30(dX1)); and courts may order even further limits (see Fed. R. Civ. P. 26(bX2)).Lawyers,by

81 C.TheMechanics of Discovery 427 agreement, can agree t? waive the Federal Rules' numeric restrictions on depositions and other discovery mechanisms. (See Fed. R. Civ. P. 29.) Such stipulations are commonplace in complex matters. Ofcourse:m some cases, a lawyer contemplating the taking of a depositionmay,decidenot to do so bec~use she does not want the deponent (or the deponents lawyer) to be able to infer anythmg about her theories ofthe case' similarly, she may not want the putative deponent to be confronted until thetrial. c. Written Interrogatories UnderFed. R. Civ. P. 33, written questions may be submitted to anopposingpartyand must be answered in writing, under oath, and returned within thespecifiedtime period. Read Fed. R. Civ. P. 33. Notice that Rule 33(b) specifies agency concepts for interrogating corporations and partnerships. Questionsmay seek any information discoverable under the scope of discoverystandardof Rule 26(b)(1). Thereare at least three advantages to using written interrogatories. First,interrogatories are usually the most useful mechanism for obtaining detailedand/or noncontroversial information from an adversary. If served earlyin the case, interrogatories can be very useful in obtaining names, addresses,dates, employers, relationships, histories, lists, numbers, or other technical information that a party may be required to assemble. Second, interrogatoriesare inexpensive to prepare and serve (or "propound") upon theopposingparty. In fact, most lawyers (and many practice books) have patterninterrogatories for specific types of cases. Third, interrogatories areavailablefor use at trial. Interrogatory answers are statements of an opposingparty, and thus may be admitted as an admission under the RulesofEvidence over a hearsay objection. The unfortunate downside to interrogatories, however, is that the answersare almost always drafted by lawyers and, thus, typically are crafted to containas little useful information as possible. The answers are not spontaneouslyoffered, and there is no opportunity for a timely follow-up question forclarification.moreover, some lawyers delay the answering of interrogatoriesuntiltheir client is compelled to answer by the judge or will make every conceivable objection to the wording and scope ofthe interrogatories. As with depositions, there is a limit on the numbers of interrogatories that parties mayserveas a matter of right. Fed. R. Civ. P. 33(a) now has a presumptive limitoftwenty-five, and local rules may limit still further. See Fed. R. Civ. P. 26(b)(2). An important strategic consideration that is part of both drafting and answeringinterrogatories is the extent to which you choose to inform the partyofyour theories of the case. On the one hand, the mterrogatory IS a subtlerhetorical device, an opportunity for advocacy; on the other hand, detailsufficientto persuade will necessarily inform the other party of your

82 428 4 Discovery line of thinking and may give your opponent ample time to formulatea responsive theory..'. Once again, remember that Fed. R. CIV. P. 26(e) Imposes a contllluing duty to supplement your discovery responses. d. Production of Documents and Things Under Fed. R. Civ. P. 34, any party may request another party toproduce documents and things and may then inspect and copy those documentsand things before returning them to the producing party. Read Fed. R. Civ.P. 34. "Production" can include turning over a copy of the requested mformationor making it available at a specified time and place. One advantage of what commonly is referred to as a document request is that the term "documents" is construed widely (as the listed items in therule itself imply) to mean almost any type of written or electronically storeditem of information. A document request may also include a request forthings, which may include the physical inspection of real or personal property, including equipment, devices, vehicles, and the like. The broad scopeofthe definition of document works in tandem with the broad scope of discovery under Fed. R. Civ. P. 26(b). One primary disadvantage of a document request is that it is difficult to strike a balance between over- and under-inclusiveness. On the onehand,a certain level of specificity is required, because a requesting party mustreo quest with specificity sufficient to ensure that the opposing party will deliver the sought documents. However, casting the request too broadly canresultin an avalanche of documents that are responsive to the request but will hury the desired document(s). One historical disadvantage to use ofa discovery reque twas that Rule34 was limited to parties and, even as to parties, to items only within their "possession, custody, or control." Later amendments to the Federal Rules, however, relaxed the requirement that the request be directed to a party. Part (c) of Rule 34 permits a party to subpoena documents even froma nonparty in conformity with the requirements for a subpoena in Rule 45. Again, remember that Fed. R. Civ. P. 26(e) imposes a continuing dutyto supplement your discovery responses. e. Physical and Mental Examinations Under Fed. R. Civ. P. 35, a physical and/or mental examination ofa person may be requested when the person's condition is in controversyand the person to ~e examined is given proper notice. Read Fed. R. Civ.P. 35. Medical examm~tlons are the only discovery tools for which advancecourt approval ~srequired, and the court requires a showing of "good cause"forthe examination.

83 C.TheMechanics of Discovery 429 Thisdeviceapplies. only to a.relatively narrow subset of cases, where the condition of the putative exammee IS truly "in controversy." The Supreme Courthas made clear that the Rule requires more than "mere conclusory allegations ofthe pleadings" or even "mere relevance to the case." Instead theremustbe "an affirmative showing by the movant that each condition as to whichexamination is sought is really and genuinely in controversy." Schlagenhaufu. Holder, 379 U.S. 104 (1964). Whenan examination is permitted, the court orders the time and place. Counsel forthe party being examined typically is not permitted to attend. RereadFed.R. Civ. P. 35(b)(1), and you will see what, in addition to expense, maybeviewedas a disadvantage of this device. f. Requests for Admissions UnderFed.R. Civ. P. 36, a party may serve upon any other party a request foradmissionofany matter within the scope of discovery. Read Fed. R. Civ. P. 36. Requestsfor admissions typically are "question and answer" statements thatare used by either party to further explore specific contentions. The requestingparty formulates a "question" in the form of a statement, which theansweringparty is requested to admit or deny. For example, a defense attorneymayincorporate a request such as "Admit or deny: Randall Dee was notwearinga seat belt at the time of the fatal accident." This type of request maybeintended to determine whether certain affirmative defenses will be availableat trial. Theprimary benefit of requests for admission is that they provide an opportunityto "lock in" particular admissions or denials of fact. Unlike evidenceat trial, which may be rebutted and refuted, once admitted, the factmustbe taken as true in the pending action, unless the court permits theadmissionto be "withdrawn or amended." Fed. R. Civ. P. 36(b). Importantly,under the Federal Rules, there is no limit on the number of allowable requestsa party can make. Accordingly, the device may be especially helpful asa pretrial device to obviate the need for certain presentations of proof, including, for example, establishing the foundations for the admissibility ofdocuments. g. Informal Discovery TheFederal Rules do not discuss what are perhaps the most commonly usedmethods for discovering information. Informal discovery techniques include(1) nonparty interviews; (2) site visits; (3) exchange of information (forinstance, cooperation with other attorneys who have handled cases againstthe same defendants or regarding similar events); (4) requests forinformationfrom government agencies (under the Freedom of InformationAct,for example); (5) review of publicly available records; (6) private

84 430 4 DisCovery loves. ti19atiion;an d (7) Internet research. Informal discovery thus. referstoany form ofextrajudicial research or inquiry that attempts to obtam factsrelevant to the case..' Th two P rimary advantages to mformal discovery techniques. ere are d' tai First informal discovery may cost less. Indee, m cer am circumstances the party may be able to perform the. discovery for or rn concert withthe attorney, and thereby dramatically limit the feesmcurred. Second,mformal discovery often provides no notice to (nor raqurres any cooperation with) opposing parties. This may be particularly useful to an attorney whowishes to develop elements of her case without alertmg her opponents to theonesshe may pursue (or to evidence that she already has)... It bears mentioning that informal discovery, such as information obtained from the Internet, may be inaccurate. Some informal discovery, suchasthe use of private investigators or the contact of nonparty witnesses, can-at some point-violate rules of professional ethics. And of course certainsources of informal discovery, such as hospitals or employers, will not releaseconfi dential information without the authorization of the party about whominfer. mation is sought. Nevertheless, informal discovery remains a valuable discovery tool for the effective litigator. h. Experts In the past two decades, expert witnesses have performed an increasingly importantrole in the process of developing and, ultimately, presentingacase. It is now generally accepted that expert testimony is necessary to aidajury, especially when scientific, medical, technological, or statistical informationis presented. A study conducted by the Federal Judicial Center, for example, suggests that tort plaintiffs will, on average, use at least three experts;and defendants will use at least two. Yet experts typically are involved longbefore trial. Experts are routinely consulted to assist in the process of framingthe pleadings, preparing discovery requests, responding to discovery, andwhen developing a strategy for pretrial motions. The use of experts in presenting and interpreting evidence is not unique to the American system of jurisprudence. Civil law systems also useexperts to aid in the interpretation of complicated evidence. However, wherethe American system. allows the parties to choose, prepare, and groomtheir experts, most CIVIllaw systems put these decisions solely in the handsof the Judge. That difference has a marked effect on the role of the expertin each instance. American experts are increasingly criticized for their biased opinions, offered as "expert testimony" to support the case for the handthat f~eds them. In contrast, the judge-selected experts in the civil law systemare vl~wed as neutral WItnesses able to provide factual assertions regardingthe evidence, not based upon the party that hired them. Note that although there is not a specific discovery rule goveming the involvement of experts, their participation is contemplated by the

85 C.The Mechanics of Discovery 431 rules.whenare you obliged to disclose the identity of your experts? Can expertsbe deposed?

86 A Practical Perspective: Sample Interrogatories, Answers, and Comments It may be helpful after all this theory to see an actual set of interrogatories and responses. The sample that follows is based on the facts of Schulansky11. Ronan, - the example case explored in more detail in Chapters 30 to 35. The plaint:uf in Schulanrky, Deborah Schulansky, met with Richard Ronan, of Ronan Construction Company, to discuss putting an addition on her historic vacation house in Alton, New Hampshire. Allegedly, he repre sented to her that he was a specialist in such work. After some discussions, they signed a short agreement (the «proposal and estimate") and Ronan proceeded with the work. While the cellar was being excavated, Schulansky visited the

87 412 Part Pour. Steps in the Litigation Process site to checlc on the work. The house had an old foundation made of loose stones. While she was there she saw that Jones, the bulldozer operator, had dislodged some of the stones. She asked Ronan if the old foundation was adequate to support the addition, and he allegedly said it was, but that he would reinforce it with concrete if necessary. A major dispute in the case involves exactly what he had agreed to do to repair the old foundation (if anything) and whether Schulansky waived any agreement to rebuild it during their conversation at the job site.. After the work was mostly done, Schulansky visited again and noticed cracks in several rooms of the old part of the house. She had an engineer look at the house, and he concluded that the old foundation was settling, causing structural damage. After tljing to get Ronan to address the problem, Schulansky sued Ronan and his company, Ronan Construction Company, for damages. (For more detail on the facts, see Chapters 30 and 32.) Figure 21-3 illustrates a set of interrogatories that Schulansky might serve on Ronan in the action. Figure 21-4 provides Ronan's responses. Some explanatory comments follow. Comments on the St:hulansky Interrogatories 1. Many ofschulansky's interrogatories seek the identity of witnesses and records relevant to the action. Once Schulansky learns the names.of relevant witnesses, they can be interviewed (if they are willing to be) or deposed (if they are not). The answers regarding records can be followed up with a Rule 34 Request for Production of Documents. & the Introduction explains, automatic disclosure of supporting witnesses and records is now required under Federal Rule 26(a). Counsel often combine interrogatories with a request to produce the documents that are identified in the answers to interrogatories. For example, Schulansky's counsd could add a request after Interrogatories #5 and #6 that all records identified be produced for inspection and copying pursuant to Rule The interrogatories are addressed to defendant Richard L. Ronan, not to both defendants together. Under Rnle 33( a), court permission is required to serve more than 25 interrogatories on "any other party." Presumably, Ronan Construction Company is a different "party," even though it is lt<>nan's company, so Schulansky can presumably still serve 25 more interrogatories on it. Placing a limit on the number of interrogatories may lead counsel to resort to questions with sub-parts. See, for example, Interrogatories #15 and #22. This can lead to tedious battles (at $150 an hour, no less) over whether such sub-questions are really separate questions that should count toward the limit. 3. Interrogatories and responses must be served on all other parties to the action (not just the responding party). Rnle S(a), (d). This keeps all parties

88 21. The Basic Methods of Discovery 413 UNITED STATES DIBTRICT COURT DISTRICT OF MASBACHUSE'I"l'S DEBORAH BCHULA.NBKY, Plaintiff v. RICH.AliD L. RONAN, RONAN CONSTRUCTION COMPANY, crvn. ACTION NO PLAINTIFF'S FIRST SET OF INTERROGATORIES TO THE DEFENDANT RICHARD L. RONAN UNDER FED. R. CI\1, F. 33 Defendants The plaintiff requests tba.t the defendant R1ch&rd L. Ronan an, SW8l' the follow1dg lnterrog&tol'les under oat.h, and serve his respodbes upon the pl&lntlff wftbm 30 da,ys, pursuant to Rule 33 of the Pederal Rules of Civfi Procedure. 1. Please l1st ea.ah occas1on on whioh you or a.nyone e.otlng on be- b&lf of you or Ronan Construatlon Company djscussed the terms or performance of the cont.raot In issue In thib action with the pla.1nt1ff. 2. For ea.ah conversation 1dent!11ed In Intjlrrog&tory #l, please sta.te In detan the subs~ of that conversation, stating In chl'onolog1c&l order what was sa.td by aa.ah of the pa.rtles. 3. Please Identify the name and address of each person who was present durlng each a.nd evin',y oonvers8.t1on between yourself and th& pl&lntlff, pi-tor to,,duridg, and &ftel' the ex~tlon of the oontract. at 1ll8Ue In thib action. 4. Please ~tlf.y tb,i1 name and address of each person who has a.ny lmowledle of the faots codd91"jlin8 the negotjatjons, exeoutton, or performance of the contract. tb&t IB at 1BIJU8 In t.b1s a.ctlon. 6. Please identify each and every document, letter, memorandum, or other record, whether :In e1ectron1c or other form, of whioh you bave lmowledge, whet.her or DOt it 1.B In your custody, poeeession, or control, wh1ch oonta.ins a.ny 1nforma~ ooncernmg the ~ t1ons, exeautlon, or performance of the Con.tra.ot In issue In this action. 6. Please identify ea.ah and every document, brochure, Information sheet, advel't1sema:nt, or other wr1t1ng that dsscr1bes t.b.e nature of the construct1on services oft'ered by Ronan Const.ructl.on Compa.ny, or Ita expertise or 8%p81'1enoe :In resto1'1ntl or working on h1stor1d properties. Fignrc21-3

89 414 Part Four. Steps in the litigation Process 7. For ea.c.h document ldentlfl.ed. In response to Interrogator,v #B and #6, please sta.te whether such document Is wit.bbl your possession, custody, or control, and. 1f not, state to the best of your knowledge who does h&ve possession, custody, or control of such document. 8. Please state whether Bey" doouments relatlng to the events alleged In tb1s aot1cm h&ve been lost or ~ If tha &DS1m' Is "yes," please state ror each suoh d.oaument the nature and content or the document, the person creating the document, and the clr CI.llilBtances surroundlnl the loss or d.estruotton of that dooument. 9. Please Ust the names and a.ddresses or an persons who. per- formed any serv1ces rela.ted to lohe work that. forms the ba81s or this e.ot1on. 10. For ea.c.h person 1dentl1led In Interrogatory #9, please specify the nature or the serv1oes performed, the manner 1n whlob 8UCb. person W&B compensated (whether by the job, hourly, weekly, or otherwtse), the amount or oom~tton prov1ded to such person for this Job, whether a contract was entered Into for the servl.ces rendered by such person, and the number of other Jobs on whtlh suoh person has rendered services for either or tbe defendants dur Ing the ~ two years. 11. Please ldenttr,y eaoh and ever,v contract or other &greeman\, whether In wr1tldg or not, concerning the addlt1on work that Ia the suqjeot or this aot.ton, whioh etloher defendant entered Into with the pla1ntlff, with arlen JOll8S, or with Bey" other persons who rendend servl.oea on the contract tha.t 1s the suqiect. or this a.ct.!on. 12. Please idantlfy, by giving the address of the property and the name and a.cfdl:ess or the OWDer, aaah and every structure In 8%0eiiS ot 100 years old on wbioh you or your company h&ve l'8ddered constructton serv1ces during the last six :years. 13. For each property identifled 1n Interrogatory #12, please state whether any dlspute arose oonoern!ng the terms or performance or the work, and 1f so, whether Bey" legal action was threatened or lnltla.ted. agamst you or Ronan Constl'llotlon Company as a result or suoh dispute. 14. Please state "!'hether either or the detend&n.ts h&s made an Jnvesttgatton Into the allegations upon whloh the complaint In this a,o. tton Is basec If tha answer to Interrogatory #14 Is "yes: please state tor eaab suoh lnvest2gatlon a. the names and addresses or each person who has made suah lnveatlga.tlon; b. the dates or eaoh suoh Investigation; o. 1dsntlf.y all reports, summa.rles, witness statements, photographs, esttma.tes, opinions, or other doaum.ants, wbstber

90 21. The Basic Methods of Discovery 415 In Wl'l.tten or eleotrontc form, tbat bave been created as a result or such lnwattga.t.ion, mclud1ng any speomcatlons or est1ma.tes of damages to the original house or add1t1on at the Alton propeij'iiy. 16. Please deb01'1be, step by step, in deta.u and. In chrodol081c&l order, exaotly what you or your servants or &gen\11 or subcontractors did to rebu1ld or relnforoe the old part or the toundat1on exposed durjdg the excavation for the &M1t1on that Is the subject or tbls action, or to asoert&jn the sufftoiency of tha.t foundation to support the addttlon at issue 1n this actlon. 17. Please identity by, name and &d.dress each person wbo was present during any part or the work tbat is the llllllject or Interroga.tocy # Please ata.te eaah and every fact upon which you rely In support of your contention ln the l!'ourth Defense ln your Answer to the oomplalnt, alleging th&t the pl&lnttu watved performance of the contraot.ual obl.tga.tlon to relnforoe the foundation prior to construatton of ihs addition. 19. Plsaae state each and every fact upon which you rely m. support of )'Dill' contention ln the Second Defense 1n your ~er that the defendants are not subjeot to person.aljurisdlotlon In this 8Dtion. 20. Please state each and every fact upon whlah you rely ln support of your oontent1on In the 'l'hlrd Defense m. your.answer lihat the Proposal and Est1ma.te for thb work Involved ln th.ls e.ctlon constitutes the entll'e agreement of the p&l't18s and does not require reoonstructlon of the found&tlon. 21. Please state the D&llle and &ddress or each expert you expeot to call to teatuy, at the trlal. 22. l!'tir each expert 1den\lfled. In Interroga~;ary #21, please specify a. b1s or her profebb1onal quajiflnnitons; b. the subjects upon whioh the expert Is expected to testlfy; o. the BUbste.noB of the opln1on to wbich ~e expert is expected to test.u'y; d. the grcrun.d.s upon which the expert bases b1s or her opmlon. Deborah Sahulansk;y By her a.ttomey Peyllls Sla.ter Gomez, Robbins a.nd Bla.ter 322 Purlta.n Roa.d Plymouth, MA (508)

91 416 Part Four. Steps in the litigation Process UNI'l'ED STATFB DISTRICT COURT DISTRICT OF MABBACBUSE'ITB OlVILACTION NO DEBORAH BCHOLANBKY,. Pla.intlff v. RICHARD L. RONAN, RONAN CONSTRUCTION COMPANY, Defendants DEFEN'DABT'B ANSWERS TO PLAINTIFF'S FIRST SET OF IN'I'ERROGATORlEB UNDER FED. a crv. P. 33 The defenda.nt R1abard L. Ronan responds to the pla.lnt1ff's first set or mterroga.tor1ea as follows: 1. Please ltst ea.cb oocas10n on which you or &D;VOne act1ng on behalf or you or Ronan Construotlon com~ d.lscussed the terms or percol'ii18.ilc8 of t.he contraot In Issue In th1s action with the pla.lnt.ut. ~ 1 met. 'With the pla.lntlff tw1oe 1n e&l'ly l4a.roh of 2004 to d1scusb the mk. She also vjs1ted the site ln earj,y M~ durldg tb8 COJlB!iructl.on. She oa.1led. me twice 1a.te In Ma,y to d1scusa all8ged c:l&mage resultldg from the work. 2. Por each conversation klentuied In Interrogatory # 1, plea.ae state In deta.ll the substance of that oonversat10n, stating in ohrono logtoa.~. ol'd.bl' what was sa.id by eaoh of the parties. An!Jwer: At the first meettng, we djscussed generally the nature of the work to be done, m,y axper18nce on a1mfia.r jobs, and when I would be &bib to do the work. At the Seoond meetlllg, we went over apeo:lflcs concerning dimensions, ma.terl.als, exca.va.tton, subcontractidg e1ectr1ca1 work, a.nd. l&ddacapmg, We &greed to a pl'lce anr1 I agreed to send. a Proposal and Eatlma.te for ils. B<:hul.a.nsk;v to sign. Dl:lrmg the conversations in late Ma.v, the pla.lntiff expressed concern about 80lilB stress cra.cka In several rooms or the house. I expla1ned. that these cra.alts d1d. not result from the add1t1on work. but were there when we began the job. They result from sett.ung over the two hundred odd years a1noe the house was bullt. 3. PlB&SB Identify the name and a.ddl'eas of each person wbo was present durjng each and every convel'll&tion between yourself a.n4 the pla.1nt1ff, prior to, du'l'ldg, and after the exeout.lon of the co:ntra.ct at 1ssue In thib aot1on. Figure2l-4

92 21. The Basic Methods of Discovery 417 ~ Deborah Sab.ula.nsk;y, 219 Parker Street, Plymouth, lla 02360, &nd R1c1ul.1'l1 L. Ron&n, 3 Carleton Dl'lve, Nashua, NH Please identify the name a.nd a.ddl'ess of ea.cb person who has any knowledg$ of the fa.ct.s coil08i'll1dg the negottattons, exeoutton, or perf0l'lll&il08 of the co ract that Is at msue m. thls actton. ~ Deborah 8chula.nslcy' and luobard. L. Rona.n.As to pel'forma.nce, Arlen Jones, 14 Prescott Place, Canterbury, 'NH 03316; :Marie Shepa.rd, 62 Bummer au-t, Laconi&, NH 03329; Renee Dufresne, 19 Th1rct Ave, Nashua, NH 03326; a.nd. T. J. Argento, 414 P1pel' L&ne, Nashu&, NH (office &ddrebb) as wen. B. Please identl!y each a.nd f1vf1j!y document, lattel', memorandum, or other record, whether to. electronic or other form, or whlab. you have knowledge, whether or not 1t 18 1n your custody, possession or control, th&t cont&lns lnforma.tton coiloiil".djng the negottattons, execution, or pertorma.n.oe of the contract in IssUe 1n thlli a.ction. Anl!wer: P.ropae&l and estim&te ~ed to pla.lntlff's complaint: letter agreement da.ted.apru 8, 2004, between Ronan Construe tton Company a.nd Arlen Jones. 6. Please identify each and every document, broahure, 1nform&t1on sheet, &dvertlsemen.t, or other writing tb&t describes the na.ture of the construotion serv1ees offered by Rona.n Conetruot!on Compaey, or its expert!se o! axperienoe in resto:rlng or working on histol'lo properties. ~ occasional advertisements to. Ka.nab.ester Unton Le&der, Old House JOUI'I1&l, Lowell Bun over the last three years. SpeoJAc dates not known. 7. For ea.cb document identlfted in response to Interrogatory #8, please sta.te whether such document 1B wtth1n your possession, custody, or control, and If not, state to the best of your knowledge who does have possession, CIJStod.Y, or control of such document. ADa:Jmr:. AdvertJ.smg copy m.&\1 be avail&ble from publisher of eaoh P,&Per specified to. answer to Interroga.tor,y #6. B. Please sta.te whether any documents rel&ttng to the events &1 lege<l 1n th1s aatton have been lost or destj.'oyecl. If the a.nswer 1s "yes," ple&be state tbr each such document the nature and content of the document, the person ore&tlng the document, and the circumstances 81l1'l'OUilCUng the loss or destru.ctxln or that document. Answer; None. 9. Please l!st the ns.mas and addresses of ajl persons who pwformed any serv1ces rela.ted to the-work tb&t forms the basis of this action..answer: R1ch&rd L. Ronan, Arlen Jonas, J4a.rie Shepard, Renee Dufresne. Also T. J..Argento (ej.eoqol.oal con\raetor).

93 418 Part Four. Steps in the Litigation Process For addl'esses see l'e8poiisiii to lnterrog&tor:v # For each person ldentuled.ln Interrogatory #9, please specify the nature or the services perf0l"'ll8d., the ma:nner 1n wh1ob sucll person waa compensated (whether by the JOb, hourly, weekly, or ot.ll.el'wise>, the amount or oompensatlon prov1ded to such person for tlub Job, whether a contract was entered Into for the servtaea rendered by suoh person, and tbe number or other Jobs on which suah person has rendered services for either of tbe defendants dur lng tbe l&st two ;years. I l. ~ The defendant o~scts to th1s Jntsrrogatory as bul'densome and caillng for InformAtion tbat. Is Irrelevant to the Sssu.ea Jn sult. Without. wal'vtng th1s ol:dectton, the defendant responds that Arlen Jones conducted the exca.vatidd pursuant to a letter agreement da.ted.aprll 8, 2004, for a fijted. pr1ce of $3, Please 1denti1Y each and every aontra.ct or other a&reement, whether 1n wr!t1ng or not, concerning the adi:ut1on work that Is tbe sut~~ect or th1s action, wh1cb. either defenc1&dt entered Into With tbe pl&ntlft', With ArlenJones, or With aey other persona Wbo reiii1ered services on the contract tbat Ss tb8 sulvect of this aotlon. &I.!IJmr.:. Proposa.l and esttmate attached. to plamtu'f's compjalnt; letter agreement dated.aprll 8, 2004, between Ronan Construo. tlon Comp&lliY and Arlen Jones. 12. Please 1den.tlfy, by giving tbe &dd.ress of the property and tbe name and address or the OWDer, ea.cb. a.nd evflry structure 1n excess or 100 years old. on wh1ch ;you or your oompa.n;y have rendered construct.ion serv1oes during the last six Y8&1'8 ~The d~ o~ to t.h1s Snterrogatory u burdensome and call1dg for J.rreleva.D.t Information beyond tbe proper bounds or d1soovery. 13. Per eacb property ldentlfted In Jntel'rogat.ory #12, please state whsther s;oy djspute arose oonoernmg the terms 01' per!ol'ma.noe or tbe work, and 1f so, wbetber aey legal adilon was threatened or JnJtiated sga.tnst eit.her you or Ronan Constrncmlon Company u a l'8sult of such d1apute. ~ The defend&nt otnects to t.h1s Interrogatory &8 bul'dbdaome and oa.lljng :for Srrelevant lnformat1on beyond the proper bounds of d.18covery. Wltbout wa.1vin1 tbjs o~ectton, the defendant states. that neither he nor Ronan Construat.lon Company has been sued fbr &lliy cla1m a.rjs1ng out of his oonstru.ctton bual ness dlll'lng the past alx years. 14. Please state whether el.ther o! the detend&nts baa made a.n lnvellt1ga.tilon into the allegatlona upon wh1oh the complaint 1n thss action sa baaed. ~Yea If the answer to Interrogatory #14 Ss yes,- please state :for each 8UCib. 1nveatlgat1Dn '

94 21. The Basic Methods of Discovery 419 i t I a. the Il&lllBS and addresses of each pel'iioil who has ma.de suah lnvest.1gatl.on. ~ R1ah&rd L. Ronan b. the dates of eaoh such Investigation. ~June l, c. identjfy all reports, summarl.es, witnebb statements, photogra.phs, estimates, opinions or other doouments, whether ln wrttten or eleot.ronlo form, tba.t have been created as a result of such Investigation, lnalud1ng ac,y speolftoations or estimates of damages to tbs orjgtnal house Ol' addition at the Alton propert;y..answeri None. l6. Please desoribe, step by step, ln deta.11 a.nd In chronologl.csl o:rdel', exactly what you Ol' your servants 01' agents Ol' suboontl'actol'b did to rebulld Ol' relnfol'c8 the old p&l't of the foundation exposed during the exoa.vation fol' the addition th&t 1s the subject of th1b action, ol' to 8IIC8l'ta:l:n the sufftol.enoy of that foundation td suppol't the ad!ut1on at issue In tb1s aatton. ~ The rook foundation was solid and did not require a.ey reconstoruotion. At the pla.lntiff's request, we po\ll'ed concrete into several open spaces among the rocks during the WOl'k. 17. Please identify by n&jne and addrebb eaob pel'bon who was pl'8eent during any part of the wol'k that Is the suqject of Intel' rogatory #16. ~ Riohal'd L. Ronan, Debol'ah Bchulansky, Arlen Jones, llal'le Bhepa.rd, Renee Dufresne, T. J. Argento. 18. Please state each and evsiy faoll upon wb1ch you rely In support of youl' oontentlon ln the Fourth Defense In youl' Answer to the oompl&lnt, a.ueg1ng that the plalntuf w&1ved performance of the contractual obllga.t1on to reinforce the foundation pl'lol' to constl'uction of the &ddjt1on. ~When the plsjntuf V1s1ted ~ site on April 17, 2004, the foundation was exposed and she asked W~l' it was llllfflclent. I said it was, but I would flllln any holes ln the foundation wtt.j:i OODOI'IIte. She &greed th&t this would. be S&tlsfaotocy. 19. Please state each and evecy faoll upon which you rely In support of your oontent.lon ln tbe Second Defense m your Answer that the defend.ants are not sul!lect to personaljul'lsdlotlon in tb1s aatton. ~ This aot1on &rlses out of WOl'k done In New Hampshl.re. The defendant R1abard L. llonan Js domiojled. ln New lla.mpblljre and has not been served With process In MassaohUIIstts. Ronan Construotion Compaey Is a New Hampshire COJ'POI'&tlon with of- 1ices ln New Ra.mpsb!l'e. None of the servlces rendered undel'

95 420 Part Four. Steps in the litigation Process the agreement 1n sutt were rendered In Massachusetts, nor has either ~end&nt consented. to suit In MtiBB&chusetts on tb1a cla.1m. ~o. Please state ea.cb. and every!&!$ upon wbl.ch you rely 1n sup. port of your contention 1n the Th1rd Defense :In your Answer th&t the Proposa.l a.nd Estbn&te for the WOl"lt Involved :In thjs action oonstitutes the ent.1re ~nt of the pa.rt.1es a.nd does not requtre reconstruot1on of the round&tlon. Answer: The ~s s1gned the Proposal a.nc1l!lstun&te, whlgb Jnaludes all the tel'ills ot the contract between them. There was no other agreement reqwrin& reconetructlon or the found&tton nor does the written co~ require it. 21. Please state the na.me and address of oa.ab. expert you expect to oa.11 to testlfy at the trial..answer: The defendant ww. make d1llcl.oeure of its expert witr nesses tn accorda.dce w1th Fed. R. Civ. P. 26(a) (2) at least 90 da;ys Pl')or to the antioipated date of trlal. 22. For each expert identmied. :In Interroga.tory #21, please speoif'y a. his or her professional qna:jh!cations; b. the s~ upon whjch the expert 1.s expected to testlfy; o. the substance of the OPinion to which tbe expert; Is expected to testify; d. the grounds upon whloh the expert; bases his or her op1nmn. Answer: The defendant w1ll make disclosure of 1t.s expert w1tr neeses In &OCO:rd&nce w1th Fed. R. Civ. P. 26(&) (2) at least 90 daiys prior to the anticipated d&te of trlal. Signed Under the Pen&lties of Perjury This 21st Da.v of November S:lgned as to o~eotions Ricb.&rd L. Rona.il..Art.hur Ac.kerma.n Ackerman, Sloan c!e Ca.riotia 69 Sta.te Street Boston, MA (617)

96 T I l f 21. The Basic Methods of Discovery 421 fully informed of what has occurred in the action. Most discovery materials are not filed with the court, however, unless they are used in litigating a motion or at trial. Fed. R. Civ. P. S(d). This saves the courts a great deal of filing space. 4. Interrogatory #19 seeks discovery on the issue of the court's jurisdiction to hear the case rather than the merits. Discovery on jurisdictional issues is proper, since they obviously pertain to the adjudication of the dispute. Oppenheimer Fund, Inc. P. Sanders,437U.S. 340,351 n.13 (1978); Chapter 20, ex Interrogatories #18-20 ask Ronan to state all the facts upon which he bases various defenses raised in the'answcr. These are known as "contention interrogatories," because they ask the opponent to lay out the factual basis for contentions raised more generally in the pleadings. For many years, the courts were split on whether contention interrogatories were permissible. In 1970, Rnle 33(c) was added, which provides that ~ interrogatory is not objectionable "merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application oflaw to fact." TI:iis amendment clearly approves use of contention interrogatories to probe the factual basis for allegations~ and also to narrow the issues by revealing what is not contended. Here, fur example, Ronan's answer to Interrogatory# 18 shows that he relies on the conversation at the worksite as the ground for his waiver argument. This Will assist Schulansky in preparing to meet this defense at trial. Sometimes parties will not be able to respond effectively to contention interrogatories until they have conducted most of their own discovery. To ob'\tiate this problem, Rule 33(c) allows the court to order that such interrogatories not be answered until other discovery is completed. Comments on Ronan's Answers to Interrogatories 6. Although Rule 33 does not require parties responding to interrogatories to restate each interrogatory before the response, this obviously makes the responses much easier for all parties to review. Some local rules require setting forth the interrogatory before each response. 7. These interrogatories look so comprehensive and detailed that you would expect them to yield a great deal of useful information. When you compare the answers, however, the reality doesn't'jive up to their promise. Some answers are too general to be really helpful. Others seem to reflect stonewalling or laziness. Still others indicate that Ronan has no information on the matter. (Tbis, it turns out, can be 'Pery helpful, since Ronan will be bound by this representation; he cannot later bring forth evidence at trial which he bas denied having in answering the interrogatories.) For example, Ronan's answer to Interrogatory' #2 seems minimally responsive: It does not provide details of who said what, in what order,

97 ~- ;._ 422 Part Four. Steps in the litigation Process even to the best of Ronan's memojy. Schulansky might move for further answers, but the court probably won't be impressed. Interrogatories like this tend to invite summary answers. To get precise details, counsel should ask very specific questions ("At your meeting on February 23, 2004, did you tell the plaintiff that you would tear out the old foundation and rebuild irl" or "State -exactly what you told the plaintiff at the February 23, 2004, meeting that you would do to the old foundation"). Or, better still, she should depose Ronan so she can ask precise follow-up questions. 8. Ronan has objected to Interrogatory #10 as burdensome and irrelevant. These details do seem pretty peripheral to the issue of the sinking foundation, so the objection is at least arguable. And Ronan has made his position look more reasonable by providing the one item that Schulansky probably would press for, the agreement between Ronan and Jones, which is relevant on the question of whether Jones was a Ronan employee or an independent contractor. Schulansky's counsel probably won't press the point. 9. Presumably Schulansky has included Interrogatories # 12 and # 13 to de' termine whether Ronan, who represented to her that he was an expert at working on historic- houses, had had problems on other such jobs. This might, I suppose, lead to other admissible evidence (see Rule 26(b)(1)), but it is pretty much of a fishing expedition. By objecting, Ronan puts the burden on Schulansky to give up on this or move to compel production. And, by responding that he hasn't been sued on any jobs, Ronan lets her know that she at least won'tfind thatifshepushes the point. (Notice that be did not say there had been no disputes, just that there had been no suits.) It is common for parties to state an objection to an interrogatory, but then to provide some responsive information anyway, both to appear cooperative and to reduce the opponent's incentive to file a motion to compel further answers. 10. Schulansky's counsel asked for any reports of investigations by Ronan, but did not consider the possibility that he investigated but didn't write anything down. Now she will have to ask supplemental interrogatories as to his findings or explore this at Ronan's deposition. 11. lnteitogatories #21 and #22, requesting information concerning expert witnesses, may not be appropriate. Rule 26(a)(2) requires automatic disclosure of information concerning the quali.6.cations, compensation, and opin ions of trial experts 90 days before trial. Here, Ronan has taken the position that Rule 26(a)(2) governs disclosure of experts, so that he does not have to provide information about them until that rule requires it. 12. As discussed in the examples,.ronan has signed the interrogatories, but Ronan's counsel has signed separately as to the objections, indicating that he has considered the objections raised and deems them legally justified.

98 Practice Exercise No~ 1 The following two fact patterns present issues that may arise in the context of discovery. We are interested in finding out how you would respond under each of these circumstances. (Assume that you are an attorney with the authority to make these choices.) Remember that you have a duty both to zealously (or "eompetently" and "diligently," under the Model Rules) represent your clients and to behave ethically. You may want to consider the potential effect your decision will have on your clients and their case, on the opposing party and its case, on your practice, and on the legal system generally. You may, of course, consider other factors as you see fit; Scenario No. 1 Your clients, the City Police Department, its Chief, and members of the Department, are defendants in a civil rights case. Plaintiff claims that two policemen stood by and watched her husband brutally beat her, and that their failure to stop the beating was part of a pattern and pr~ctice of refusing to come to the aid of victims ofdomestic violence. Plaintiff' is represented by a solo practitioner who recently graduated from law school and (you know from a friend) has lots of debt and almost no assets. She is representing the plaintiff on a pro bono basis and (you have heard) has volunteered to front the costs for her client, pending settlement or a favorable verdict. You are a third-year associate in a successful, respected firm. Defendants pay (through the City) $250 per hour for your services, plus costs. Plaintiff has sent you a request for production of the following documents and things; inter alia: 1. Any and all records from the period commencing five (5) years prior to the date of the incidents giving rise to the lawsuit of or perlaining to any and all complaints, formal and/or informal, made by women to the City Police Department, regarding violence, abuse, forced sexual relations, and/or any other injury, act or practice perpetrated upon them by a present or past husband, a present or past "boyfriend," and/or a present or past lover, and/or any other person known to them.

99 Rule 25 RULES OF CIVIL PROCEDURE noting the death, the action by or against the decedent must be dismissed. (2) Continuation Among the Remaining Parties. After a party's death, if the right sought to be enforced survives only to or against the remaining parties, the action does not abate, but proceeds in favor of or against the remaining parties. The death should be noted on the record. (3) Service. A motion to substitute, together with a notice of hearing, must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death must be served in the same manner. Service may be made in any judicial district. (b) Incompetency. If a party becomes incompetent, the court may, on motion, permit the action to be continued by or against the party's representative. The motion must be served as provided in Rule 25(a)(3). (c) Transfer of Interest. If an interest is transferred, the action may be continued by or against the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party. The motion must be served as provided in Rule 25(a)(3). (d) Public Officers; Death or Separation from Office. An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party. Later proceedings should be in the substituted party's name, but any misnomer not affecting the parties' substantial rights must be disregarded. The court may order substitution at any time, but the absence of such an order does not affect the substitution. TITLE V. DISCLOSURES AND DISCOVERY Rule 26. Duty to Disclose; General Provisions Governing Discovery (a) Required Disclosures. (1) Initial Disclosure. (A) In General. Except as exempted by Rule 26(a)(l)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; 72

100 DISCLOSURES AND DISCOVERY Rule 26 (ii) a copy-or a description by category and locationof all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party-who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. (B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure: (i) an action for review on an administrative record; (ii) a forfeiture action in rem arising from a federal statute; (iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence; (iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision; (v) an action to enforce or quash an administrative summons or subpoena; (vi) an action by the United States to recover benefit payments; (vii) an action by the United States to collect on a student loan guaranteed by the United States; (viii) a proceeding ancillary to a proceeding in another court; and (ix) an action to enforce an arbitration award. (C) Time for Initial Disclosures-In General. A party must make the initial disclosures at or within 14 days after the parties' Rule 26( ) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this 73

101 Rule 26 RULES OF CIVIL PROCEDURE action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure. (D) Time for Initial Disclosures-For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order. (E) Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures. (2) Disclosure of Expert Testimony. (A) In General. In addition to the disclosures required by Rule 26(a)(l), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report-prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or otherwise ordered by the court, if 74

102 Rule 26 RULES OF CIVIL PROCEDURE grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii). An objection not so made-except for one under Federal Rule of Evidence 402 or 403-is waived unless excused by the court for good cause. (4) Form of Disclosures. Unless the court orders otherwise, all disclosures under Rule 26(a) must be in writing, signed, and served. (b) Discovery Scope and Limits. (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense-including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). (2) Limitations on Frequency and Extent. (A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36. (B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court m;:ty specify conditions for the discovery. (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; 76

103 DISCLOSURES AND DISCOVERY Rule 26 (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. (3) Trial Preparation: Materials. (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(l); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation. (C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either: (i) a written statement that the person has signed or otherwise adopted or approved; or (ii) a contemporaneous stenographic, mechanical, electrical, or other recording-or a transcription of it-that recites substantially verbatim the person's oral statement. ( 4) Trial Preparation: Experts. (A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided. 77

104 Rule 26 RULES OF CIVIL PROCEDURE (B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded. (C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications: (i) relate to compensation for the expert's study or testimony; (ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed. (D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only: (i) as provided in Rule 35(b); or (ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. (E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery: (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and (ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions. (5) Claiming Privilege or Protecting Trial-Preparation Materials. (A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and 78

105 DISCLOSURES AND DISCOVERY Rule 26 (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. (B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trialpreparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. (c) Protective Orders. (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending-or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery; (B) specifying terms, including time and place, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; (E) designating the persons who may be present while the discovery is conducted; (F) requiring that a deposition be sealed and opened only on court order; (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and 79

106 Rule 26 RULES OF CIVIL PROCEDURE (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs. (2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery. (3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses. (d) Timing and Sequence of Discovery. (1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(l)(B), or when authorized by these rules, by stipulation, or by court order. (2) Sequence. Unless, on motion, the court orders otherwise for the parties' and witnesses' convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery. (e) Supplementing Disclosures and Responses. (1) In General. A party who has made a disclosure under Rule 26(a)-or who has responded to an interrogatory, request for production, or request for admission-must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the court. (2) Expert Witness. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due. (f) Conference of the Parties; Planning for Discovery. (1) Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(l)(B) or when the court orders otherwise, the parties must confer as soon as practicable- 80

107 DISCLOSURES AND DISCOVERY Rule 26 and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). (2) Conference Content; Parties' Responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(l); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person. (3) Discovery Plan. A discovery plan must state the parties' views and proposals on: (A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made; (B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular Issues; (C) any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced; (D) any issues about claims of privilege or of protection as trial-preparation materials, including-if the parties agree on a procedure to assert these claims after production-whether to ask the court to include their agreement in an order; (E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and (F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c). ( 4) Expedited Schedule. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule: (A) require the parties' conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and (B) require the written report outlining the discovery plan to be filed less than 14 days after the parties' conference, or excuse the parties from submitting a written report and permit 81

108 Rule 26 RULES OF CIVIL PROCEDURE them to report orally on their discovery plan at the Rule 16(b) conference. (g) Signing Disclosures and Discovery Requests, Responses, and Objections. (1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(l) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name-or by the party personally, if unrepresented-and must state the signer's address, address, and telephone number. By signing, an attorney or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry: (A) with respect to a disclosure, it is complete and correct as of the time it is made; and (B) with respect to a discovery request, response, or objection, it is: (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action. (2) Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney's or party's attention. (3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation. Notes on Amendments to Federal Rule 26 and Comparative State Provisions (a) Amendments in 2007 to Rule 26(g)(l)(B)(i) The amendment added the words "or for establishing new law" to avoid denial of discovery when based on proposed changes to existing law. 82

109 DISCLOSURES AND DISCOVERY Rule 26 (b) Amendments in 2006 to Rule 26 Several amendments to Rule 26 were designed to recognize the need to develop means of discovery of electronically stored information and for the protection of such information when covered by the attorney-client privilege or the work product doctrine. Changes in Rules 16, 33, 34, and 45 address the same issues. (c) Amendments in 2000 to Rule 26 as restyled in Several major revisions to Rule 26 were adopted in First, current subdivision (a)(l)(a) was altered to eliminate the power of a trial court to promulgate a standing local rule exempting cases from required automatic disclosures; a trial judge can still exempt a specific case when appropriate. Second, subdivision (a)(l)(b) specifies nine categories of cases that are now rendered exempt from the automatic disclosure requirements. As the Advisory Committee noted, these are matters "in which there is likely to be little or no discovery, or in which initial disclosure appears unlikely to contribute to the effective development of the case. * * * The Federal Judicial Center staff estimate that, nationwide, these categories total approximately one-third of all civil filings." These categories of cases are also exempt from the requirements of Rule 26(d) and (f) that the parties must confer to develop a plan of discovery and must do so prior to seeking discovery from any source. Third, and of substantial significance, is the change in 26(a)(1)(A) narrowing initial automatic disclosures to identification of witnesses and documents "that the disclosing party may use to support its claims or defenses" and excluding information to be used "solely for impeachment." These changes replace the prior version of the rule that called for discoverable information or documents and other tangible things "relevant to the disputed facts alleged with particularity in the pleadings." According to the Advisory Committee, "A party is no longer obligated to disclose witnesses or documents that would harm its position." Just how far this goes, however, is not so clear because the Advisory Committee goes on to state, "the disclosure obligation applies to 'claims and defenses,' and therefore requires a defendant to disclose information supporting its denials of the allegations or claims of another party." The limitation regarding impeachment evidence merely makes obligations under Rule (a)(1) consistent with obligations already contained in Rule (a)(3) regarding pretrial disclosures of evidence that will or may be introduced at trial. Fourth, under Rule 26(b)(1), the general scope of discovery is changed to limit it to "nonprivileged matter that is relevant to any party's claim or defense." This replaces broader language allowing discovery of "matter, not privileged, relevant to the subject matter involved in the pending action." The court has the power by order to expand discovery to include the broader scope. Fifth, Rule 26(b)(2)(A) now bars a District Court from promulgating a standing rule limiting the number of interrogatories or the number or length of depositions, because limits now appear in the Federal Rules themselves. A court may issue a standard order regarding the number of Requests to Admit because Rule 36 does not contain such a limit. (c) Advisory Committee Comments on 1993 Substantive Alterations to Rule 26 Subdivision (a) of Rule 26 was amended to include subparagraphs (1)-(4), which impose a duty to disclose basic information necessary for parties to prepare for trial. Subparagraph (1) states that parties must now automatically exchange information such as the names.of witnesses, copies of pertinent documents, computations of damages and insurance data. Subparagraph (2) imposes a duty to disclose information regarding expert testimony, usually within 90 days before the trial date. The revision clarifies the more vague requirement in old Rule 26 that the "substance" of expert testimony be revealed by requiring that experts retained to provide testimony submit detailed and complete written reports. This requirement, along with Rule 37(c)(l), which provides that ordinarily a party will be unable to use expert 83

110 _j Rule 26 RULES OF CIVIL PROCEDURE testimony not so disclosed, is intended to provide parties with basic information about the testimony of the expert. Revised Rule 26(b)(4)(A) now authorizes depositions of experts, but only after the expert's report has been served. Subparagraph (3) requires that parties automatically exchange information regarding the use of witnesses, trial deposition testimony and exhibits at least 30 days before trial. Subdivision (b) is substantially revised, in part for organizational clarity and in part to implement provisions which limit the discovery process. Of the substantive revisions, subparagraph (4)(A) is revised to show that experts may be deposed, but * * * only after the expert has submitted the required detailed report. * * * Subparagraph (5) has been added to place upon a party an affirmative duty to disclose to other parties if it is withholding materials based on a claim of privilege or work product protection. The party claiming privilege must provide enough information to support its claim to enable other parties to evaluate the applicability of the claim. Sanctions may be imposed under Rule 37(b)(2) for violating this provision. Subdivision (c) is revised to require parties to confer and attempt to resolve discovery disputes in good faith prior to seeking a protective order from the court. Subdivision (d) is revised to prohibit the commencement of formal discovery until the parties have met pursuant to revised rule 26( ). Exceptions to this Rule are allowed under * * * [what is now Rule 30(a)(2)(A)(iii) (deposition of a person about to leave the country) and by local rule, order or stipulation]. Subdivision (e) provides that parties are subject to a continuing duty to supplement disclosures made pursuant to Rule 26(a) * * *. In addition, the revised rule clarifies that the duty to supplement formal discovery requests applies to interrogatories, requests for production, and requests for admissions, but not ordinarily to deposition testimony. Only when opinions expressed by an expert in deposition change is there a duty to supplement deposition responses. Subdivision (f) is revised to remove provisions relating to a conference with the court regarding discovery. As noted by the Advisory Committee on Rules, "[t]his change does not signal any lessening of the importance of judicial supervision," but rather results from the relocation of such provisions to amended Rule 16 which addresses the court's role in directing the discovery process. Subdivision (g), newly added, requires all disclosures to be signed. In keeping with the revisions to Rule 11, which state that that rule is no longer applicable to discovery matters, the signature requirement is now included directly in Rule Rule 26(a)-Required Disclosure Arizona Rule of Civil Procedure 26.1 (d) Comparative State Provisions (a) Duty to Disclose, Scope. Within the times set forth in subdivision (b), each party shall disclose in writing to every other party: (1) The factual basis of the claim or defense. In the event of multiple claims or defenses, the factual basis for each claim or defense. (2) The legal theory upon which each claim or defense is based including, where necessary for a reasonable understanding of the claim or defense, citations of pertinent legal or case authorities. (3) The names, addresses, and telephone numbers of any witnesses whom the disclosing party expects to call at trial with a fair description of the substance of each witness' expected testimony. (4) The names and addresses of all persons whom the party believes may have knowledge or information relevant to the events, transactions, or occurrences that gave rise to the action, and the nature of the knowledge or information each such individual is believed to possess. 84

111 DISCLOSURES AND DISCOVERY Rule 26 (5) The names and addresses of all persons who have given statements, whether written or recorded, signed or unsigned, and the custodian of the copies of those statements. (6) The name and address of each person whom the disclosing party expects to call as an expert witness at trial, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness and the name and address of the custodian of copies of any reports prepared by the expert. (7) A computation and the measure of damage alleged by the disclosing party and the documents or testimony on which such computation and measure are based and the names, addresses, and telephone numbers of all damage witnesses. (8) The existence, location, custodian, and general description of any tangible evidence, relevant documents, or electronically stored information that the disclosing party plans to use at trial and relevant insurance agreements. (9) A list of the documents or electronically stored information, or in the case of voluminous documentary information or electronically stored information, a list of the categories of documents or electronically stored information, known by a party to exist whether or not in the party's possession, custody or control and which that party believes may be relevant to the subject matter of the action, and those which appear reasonably calculated to lead to the discovery of admissible evidence * * *. (b) Time for Disclosure; a Continuing Duty. (1) The parties shall make the initial disclosure required by subdivision (a) as fully as then possible within forty (40) days after the filing of a responsive Pleading to the Complaint * * *. (2) * * * [E]ach party shall make additional or amended disclosures whenever new or different information is discovered or revealed. * * * 2. Rule 26(b)-Scope of Discovery New York Civil Practice Law and Rules 3101 (a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: (1) a party, or the officer, director, member, agent or employee of a party; (2) a person who possessed a cause of action or defense asserted in the action; (3) a person about to depart from the state, or without the state, or residing at a greater distance from the place of trial than one hundred miles, or so sick or infirm as to afford reasonable grounds of belief that he will not be able to attend the trial, or a person authorized to practice medicine, dentistry or podiatry who has provided medical, dental or podiatric care or diagnosis to the party demanding disclosure, or who has been retained by him as an expert witness; and (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required. (b) Privileged matter. Upon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable. (c) Attorney's work product. The work product of an attorney shall not be obtainable. (d) Trial preparation. 1. Experts. (i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is 85

112 Rule 26 RULES OF CIVIL PROCEDURE expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. In an action for medical, dental or podiatric malpractice, a party, in responding to a request, may omit the names of medical, dental or podiatric experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph. (ii) In an action for medical, dental or podiatric malpractice, any party may, by written offer made to and served upon all other parties and filed with the court, offer to disclose the name of, and to make available for examination upon oral deposition, any person the party making the offer expects to call as an expert witness at trial. Within twenty days of service of the offer, a party shall accept or reject the offer by serving a written reply upon all parties and filing a copy thereof with the court. Failure to serve a reply within twenty days of service of the offer shall be deemed a rejection of the offer. If all parties accept the offer, each party shall be required to produce his or her expert witness for examination upon oral deposition upon receipt of a notice to take oral deposition in accordance with rule thirty-one hundred seven of this chapter. If any party, having made or accepted the offer, fails to make that party's expert available for oral deposition, that party shall be precluded from offering expert testimony at the trial of the action. (iii) Further disclosure concerning the expected testimony of any expert may be obtained only by court order upon a showing of special circumstances and subject to restrictions as to scope and provisions concerning fees and expenses as the court may deem appropriate. However, a party, without court order, may take the testimony of a person authorized to practice medicine or dentistry or podiatry who is the party's treating or retained expert, as described in paragraph three of subdivision (a) of this section, in which event any other party shall be entitled to the full disclosure authorized by this article with respect to that expert without court order. (iv) [Eff. Feb. 17, 2014] In an action for podiatric medical malpractice, a physician may be called as an expert witness at trial. * * * 2. Materials. [identical in substance to Federal Rule 26(b)(3)(A)] (e) Party's statement. A party may obtain a copy of his own statement. (f) Contents of insurance agreement. * * * (g) Accident reports. Except as otherwise provided by law, in addition to any other matter which may be subject to disclosure, there shall be full disclosure of any written report of an accident prepared in the regular course of business operations or practices of any person, firm, corporation, association or other public or private entity * * * (h) * * * (i) In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in paragraph one of subdivision (a) of this section. There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use. * * * 3. Rule 26(c)-Discretionary Limits on Discovery Minnesota Rule of Civil Procedure 26.02(b) (b) Scope and Limits.-Discovery must be limited to matters that would enable a party to prove or disprove a claim or defense or to impeach a witness and 86

113 DISCLOSURES AND DISCOVERY Rule 26 must comport with the factors of proportionality, including without limitation, the burden or expense of the proposed discovery weighted against its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. Subject to these limitations, parties may obtain discovery regarding any matter, not privileged, that is relevant to a claim or defense of any party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. Upon a showing of good cause and proportionality, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information sought need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. (1) Authority to Limit Frequency and Extent.-The court may establish or alter the limits on the number of depositions and interrogatories and may also limit the length of depositions under Rule 30 and the number of requests under Rule 36. The court may act upon its own initiative after reasonable notice or pursuant to a motion* * *. (2) Limits on Electronically Stored Evidence for Undue Burden or Cost. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause and proportionality, considering the limitations of Rule 26.02(b)(3). The court may specify conditions for the discovery. (3) Limits Required When Cumulative; Duplicative; More Convenient Alternative; and Ample Prior Opportunity.-The frequency or extent of use of the discovery methods otherwise permitted under these rules shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought. The court may act upon its own initiative after reasonable notice or pursuant to a motion * * *. 4. Rule 26(b)(5)(B)-Claiming Privilege or Protecting Trial-Preparation Materials Limitations on Waiver Federal Rule of Evidence 502. [Enacted into law on September 19, Restyled by the Supreme Court, April 26, 2011.] The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or workproduct protection. (a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver.-When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together. (b) Inadvertent Disclosure.-When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; 87

114 Rule 26 RULES OF CIVIL PROCEDURE (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B). (c) Disclosure Made in a State Proceeding.-When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure: (1) would not be a waiver under this rule if it had been made in a federal proceeding; or (2) is not a waiver under the law of the state where the disclosure occurred. (d) Controlling Effect of a Court Order.-A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court-in which event the disclosure is also not a waiver in any other federal or state proceeding. (e) Controlling Effect of a Party Agreement.-An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order. (f) Controlling Effect of this Rule.-Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision. (g) Definitions.-In this rule: (1) "attorney-client privilege" means the protection that applicable law provides for confidential attorney-client communications; and (2) "work-product protection" means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial. 5. Rule 26(d)-Sequence and Timing of Discovery New York Civil Practice Law and Rules 3106 (a) Normal priority. After an action is commenced, any party may take the testimony of any person by deposition upon oral or written questions. Leave of the court, granted on motion, shall be obtained if notice of the taking of the deposition of a party is served by the plaintiff before that party's time for serving a responsive pleading has expired. (b) Witnesses. Where the person to be examined is not a party or a person who at the time of taking the deposition is an officer, director, member or employee of a party, he shall be served with a subpoena. Unless the court orders otherwise, on motion with or without notice, such subpoena shall be served at least twenty days before the examination. Where a motion for a protective order against such an examination is made, the witness shall be notified by the moving party that the examination is stayed. (c) Prisoners. The deposition of a person confined under legal process may be taken only by leave of the court. (d) Designation of deponent. A party desiring to take the deposition of a particular officer, director, member or employee of a person shall include in the notice or subpoena served upon such person the identity, description or title of such individual. Such person shall produce the individual so designated unless they shall have, no later than ten days prior to the scheduled deposition, notified the requesting party that another individual would instead be produced and the identity, description or title of such individual is specified. If timely notification has been so given, such other individual shall instead be produced. 88

115 DISCLOSURES AND DISCOVERY 6. Rule 26(e)-Supplementation of Responses Rule 27 New Jersey Civil Practice Rule 4:17-7 * * * [I]f a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period, as fixed by the track assignment or subsequent order. Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date. * * * All amendments to answers to interrogatories shall be binding on the party submitting them* * *. Rule 27. Depositions to Perpetuate Testimony (a) Before an Action Is Filed. (1) Petition. A person who wants to perpetuate testimony about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner's name and must show: (A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought; (B) the subject matter of the expected action and the petitioner's interest; (C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it; (D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and (E) the name, address, and expected substance of the testimony of each deponent. (2) Notice and Service. At least 21 days before the hearing date, the petitioner must serve each expected adverse party with a copy of the petition and a notice stating the time and place of the hearing. The notice may be served either inside or outside the district or state in the manner provided in Rule 4. If that service cannot be made with reasonable diligence on an expected adverse party, the court may order service by publication or otherwise. The court must appoint an attorney to represent persons not served in the manner provided in Rule 4 and to cross-examine the deponent if an unserved person is not otherwise represented. If any expected adverse party is a minor or is incompetent, Rule 17(c) applies. (3) Order and Examination. If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court 89

116 Rule 27 RULES OF CIVIL PROCEDURE must issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken orally or by written interrogatories. The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35. A reference in these rules to the court where an action is pending means, for purposes of this rule, the court where the petition for the deposition was filed. ( 4) Using the Deposition. A deposition to perpetuate testimony may be used under Rule 32(a) in any later-filed district-court action involving the same subject matter if the deposition either was taken under these rules or, although not so taken, would be admissible in evidence in the courts of the state where it was taken. (b) Pending Appeal. (1) In General. The court where a judgment has been rendered may, if an appeal has been taken or may still be taken, permit a party to depose witnesses to perpetuate their testimony for use in the event of further proceedings in that court. (2) Motion. The party who wants to perpetuate testimony may move for leave to take the depositions, on the same notice and service as if the action were pending in the district court. The motion must show: (A) the name, address, and expected substance of the testimony of each deponent; and (B) the reasons for perpetuating the testimony. (3) Court Order. If the court finds that perpetuating the testimony may prevent a failure or delay of justice, the court may permit the depositions to be taken and may issue orders like those authorized by Rules 34 and 35. The depositions may be taken and used as any other deposition taken in a pending district-court action. (c) Perpetuation by an Action. This rule does not limit a court's power to entertain an action to perpetuate testimony. Comparative State Provision Rule 27(a)(l), (3) New York Civil Practice Law and Rules 3102(c) Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order. The court may appoint a referee to take testimony. Rule 28. Persons Before Whom Depositions May be Taken (a) Within the United States. 90

117 DISCLOSURES AND DISCOVERY Rule 28 (1) In General. Within the United States or a territory or insular possession subject to United States jurisdiction, a deposition must be taken before: (A) an officer authorized to administer oaths either by federal law or by the law in the place of examination; or (B) a person appointed by the court where the action is pending to administer oaths and take testimony. (2) Definition of "Officer". The term "officer" in Rules 30, 31, and 32 includes a person appointed by the court under this rule or designated by the parties under Rule 29(a). (b) In a Foreign Country. (1) In General. A deposition may be taken in a foreign country: (A) under an applicable treaty or convention; (B) under a letter of request, whether or not captioned a "letter rogatory"; (C) on notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination; or (D) before a person commissioned by the court to administer any necessary oath and take testimony. (2) Issuing a Letter of Request or a Commission. A letter of request, a commission, or both may be issued: (A) on appropriate terms after an application and notice of it; and (B) without a showing that taking the deposition in another manner is impracticable or inconvenient. (3) Form of a Request, Notice, or Commission. When a letter of request or any other device is used according to a treaty or convention, it must be captioned in the form prescribed by that treaty or convention. A letter of request may be addressed "To the Appropriate Authority in [name of country]." A deposition notice or a commission must designate by name or descriptive title the person before whom the deposition is to be taken. ( 4) Letter of Request-Admitting Evidence. Evidence obtained in response to a letter of request need not be excluded merely because it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the United States. (c) Disqualification. A deposition must not be taken before a person who is any party's relative, employee, or attorney; who is related 91

118 Rule 28 RULES OF CIVIL PROCEDURE to or employed by any party's attorney; or who is financially interested in the action. Notes on Amendments to Federal Rule 28 and Related Federal and State Acts Providing Judicial Assistance to Foreign Tribunals (a) Amendments in 1993 and 1963 to Federal Rule 28(b) The 1993 changes were primarily linguistic, substituting the term "letter of request" for "letter rogatory" to conform to the Hague Convention. It was in 1963 that Rule 28(b) was altered to facilitate the taking of depositions abroad. The Advisory Committee discussed the 1963 changes as follows: The amendment of clause (1) is designed to facilitate depositions in foreign countries by enlarging the class of persons before whom the depositions may be taken on notice. The class is no longer confined, as at present, to a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States. In a country that regards the taking of testimony by a foreign official in aid of litigation pending in a court of another country as an infringement upon its sovereignty, it will be expedient to notice depositions before officers of the country in which the examination is taken. * * * It has been held that a letter rogatory will not be issued unless the use of a notice or commission is shown to be impossible or impracticable. * * * The intent of * * * [Clause (2)] is to overcome this judicial antipathy and to permit a sound choice between depositions under a letter rogatory and on notice or by commission in the light of all the circumstances. In a case in which the foreign country will compel a witness to attend or testify in aid of a letter rogatory but not in aid of a commission, a letter rogatory may be preferred on the ground that it is less expensive to execute, even if there is plainly no need for compulsive process. A letter rogatory may also be preferred when it cannot be demonstrated that a witness will be recalcitrant or when the witness states that he is willing to testify voluntarily, but the contingency exists that he will change his mind at the last moment. In the latter case, it may be advisable to issue both a commission and a letter rogatory, the latter to be executed if the former fails. The choice between a letter rogatory and a commission may be conditioned by other factors, including the nature and extent of the assistance that the foreign country will give to the execution of either. In executing a letter rogatory the courts of other countries may be expected to follow their customary procedure for taking testimony. See United States v. Paraffin Wax, 2255 Bags, 23 F.R.D. 289 (E.D.N.Y.1959). In many non-commonlaw countries the judge questions the witness, sometimes without first administering an oath, the attorneys put any supplemental questions either to the witness or through the judge, and the judge dictates a summary of the testimony, which the witness acknowledges as correct. * * * The last sentence of the amended subdivision provides, contrary to the implications of some authority, that evidence recorded in such a fashion need not be excluded on that account. * * * Whether or to what degree the value or weight of the evidence may be affected by the method of taking or recording the testimony is left for determination according to the circumstances of the particular case * * *; the testimony may indeed be so devoid of substance or probative value as to warrant its exclusion altogether. Some foreign countries are hostile to allowing a deposition to be taken in their country, especially by notice or commission, or to lending assistance in the taking of a deposition. Thus compliance with the terms of amended subdivision (b) may not in all cases ensure completion of a deposition abroad. Examination of the law and policy of the particular foreign country in advance of attempting a deposition is therefore advisable. See 4 Moore's Federal Practice '11' (2d ed. 1950). 92

119 DISCLOSURES AND DISCOVERY Rule 30 (b) Judicial Assistance to Foreign Tribunals See 28 U.S.C. 1782(a) and the comparative state provision set forth in Part II, infra. Rule 29. Stipulations About Discovery Procedure Unless the court orders otherwise, the parties may stipulate that: (a) a deposition may be taken before any person, at any time or place, on any notice, and in the manner specified-in which event it may be used in the same way as any other deposition; and (b) other procedures governing or limiting discovery be modifiedbut a stipulation extending the time for any form of discovery must have court approval if it would interfere with the time set for completing discovery, for hearing a motion, or for trial. Rule 30. Depositions by Oral Examination (a) When a Deposition May Be Taken. (1) Without Leave. A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent's attendance may be compelled by subpoena under Rule 45. (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2): (A) if the parties have not stipulated to the deposition and: (i) the deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants; or (ii) the deponent has already been deposed in the case; (iii) the party seeks to take the deposition before the time specified in Rule 26(d), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time; or (B) if the deponent is confined in prison. (b) Notice of the Deposition; Other Formal Requirements. (1) Notice in General. A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent's name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs. 93

120 Rule 30 RULES OF CIVIL PROCEDURE I (2) Producing Documents. If a subpoena duces tecum is to be served on the deponent, the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment. The notice to a party deponent may be accompanied by a request under Rule 34 to produce documents and tangible things at the deposition. (3) Method of Recording. (A) Method Stated in the Notice. The party who notices the deposition must state in the notice the method for recording the testimony. Unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means. The noticing party bears the recording costs. Any party may arrange to transcribe a deposition. (B) Additional Method. With prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the court orders otherwise. (4) By Remote Means. The parties may stipulate-or the court may on motion order-that a deposition be taken by telephone or other remote means. For the purpose of this rule and Rules 28(a), 37(a)(2), and 37(b)(l), the deposition takes place where the deponent answers the questions. (5) Officer's Duties. (A) Before the Deposition. Unless the parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28. The officer must begin the deposition with an on-the-record statement that includes: (i) the officer's name and business address; (ii) the date, time, and place of the deposition; (iii) the deponent's name; (iv) the officer's administration of the oath or affirmation to the deponent; and (v) the identity of all persons present. (B) Conducting the Deposition; Avoiding Distortion. If the deposition is recorded nonstenographically, the officer must repeat the items in Rule 30(b)(5)(A)(i)-(iii) at the beginning of each unit of the recording medium. The deponent's and attorneys' appearance or demeanor must not be distorted through recording techniques. (C) After the Deposition. At the end of a deposition, the officer must state on the record that the deposition is complete 94

121 DISCLOSURES AND DISCOVERY Rule 30 and must set out any stipulations made by the attorneys about custody of the transcript or recording and of the exhibits, or about any other pertinent matters. (6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules. (c) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions. (1) Examination and Cross-Examination. The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615. After putting the deponent under oath or affirmation, the officer must record the testimony by the method designated under Rule 30(b)(3)(A). The testimony must be recorded by the officer personally or by a person acting in the presence and under the direction of the officer. (2) Objections. An objection at the time of the examinationwhether to evidence, to a party's conduct, to the officer's qualifications, to the manner of taking the deposition, or to any other aspect of the deposition-must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3). (3) Participating Through Written Questions. Instead of participating in the oral examination, a party may serve written questions in a sealed envelope on the party noticing the deposition, who must deliver them to the officer. The officer must ask the deponent those questions and record the answers verbatim. (d) Duration; Sanction; Motion to Terminate or Limit. (1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court must allow additional time consistent with Rule 26(b)(2) if needed to 95

122 Rule 30 RULES OF CIVIL PROCEDURE fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination. (2) Sanction. The court may impose an appropriate sanctionincluding the reasonable expenses and attorney's fees incurred by any party-on a person who impedes, delays, or frustrates the fair examination of the deponent. (3) Motion to Terminate or Limit. (A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order. (B) Order. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c). If terminated, the deposition may be resumed only by order of the court where the action is pending. (C) Award of Expenses. Rule 37(a)(5) applies to the award of expenses. (e) Review by the Witness; Changes. (1) Review; Statement of Changes. On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which: (A) to review the transcript or recording; and (B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them. (2) Changes Indicated in the Officer's Certificate. The officer must note in the certificate prescribed by Rule 30(D(l) whether a review was requested and, if so, must attach any changes the deponent makes during the 30-day period. (f) Certification and Delivery; Exhibits; Copies of the Transcript or Recording; Filing. (1) Certification and Delivery. The officer must certify in writing that the witness was duly sworn and that the deposition accurately records the witness's testimony. The certificate must accompany the record of the deposition. Unless the court orders otherwise, the officer must seal the deposition in an envelope or package bearing the title of the action and marked "Deposition of [witness's name]" and must promptly send it to the attorney who arranged for the transcript or recording. The attorney must store it 96

123 DISCLOSURES AND DISCOVERY Rule 30 under conditions that will protect it against loss, destruction, tampering, or deterioration. (2) Documents and Tangible Things. (A) Originals and Copies. Documents and tangible things produced for inspection during a deposition must, on a party's request, be marked for identification and attached to the deposition. Any party may inspect and copy them. But if the person who produced them wants to keep the originals, the person may: (i) offer copies to be marked, attached to the deposition, and then used as originals-after giving all parties a fair opportunity to verify the copies by comparing them with the originals; or (ii) give all parties a fair opportunity to inspect and copy the originals after they are marked-in which event the originals may be used as if attached to the deposition. (B) Order Regarding the Originals. Any party may move for an order that the originals be attached to the deposition pending final disposition of the case. (3) Copies of the Transcript or Recording. Unless otherwise stipulated or ordered by the court, the officer must retain the stenographic notes of a deposition taken stenographically or a copy of the recording of a deposition taken by another method. When paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party or the deponent. ( 4) Notice of Filing. A party who files the deposition must promptly notify all other parties of the filing. (g) Failure to Attend a Deposition or Serve a Subpoena; Expenses. A party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney's fees, if the noticing party failed to: (1) attend and proceed with the deposition; or (2) serve a subpoena on a nonparty deponent, who consequently did not attend. Notes on Amendments to Federal Rule 30 (a) Amendments in 2000 to Rule 30 Section 30(d) has been altered in two ways. First, subject to an extension by agreement of the parties and the deponent or by court order, a deposition is limited to one day of seven hours. Second, a person who impedes or frustrates an examination of a deponent may be sanctioned by the court. 97

124 Rule 30 RULES OF CIVIL PROCEDURE (b) Amendments in 1993 to Rule 30 Rule 30, in an effort to limit costs of discovery, has been modified to limit the number of depositions. Paragraph (a)2(a), containing the new limit, provides that absent leave of court or stipulation among the parties, a party is limited to ten (10) depositions. Paragraph (a)2(a) also limits the number of times a witness may be deposed by requiring leave of court if a party wishes to depose a witness more than once. Subdivision (b) has been revised to allow parties to record deposition testimony by nonstenographic means without first obtaining permission of other counsel. Parties choosing to record only by video- or audiotape should be cognizant that a transcript of such recordings will be required if the testimony is later offered as evidence at trial or on a dispositive motion under Rule 56, pursuant to Rules 26(a)(3)(B) and 32(c). Subparagraph (b)(3) now allows parties, at their own expense, to record a deposition by any means, in addition to the method designated, and subparagraph (7) is revised to include technological improvements in the taking of depositions. In addition to the use of telephones, authorized by the 1980 Amendment to Rule 30, other remote electronic means such as satellite television are now allowed by stipulation or court order. Subdivision (e) has been modified to require pre-filing review by the deponent only if requested before the deposition is completed. Recognizing the difficulty reporters often have in obtaining signatures for pre-filing review, such signatures are now waived unless review is requested and changes are made. Rule 31. Depositions by Written Questions (a) When a Deposition May Be Taken. (1) Without Leave. A party may, by written questions, depose any person, including a party, without leave of court except as provided in Rule 31(a)(2). The deponent's attendance may be compelled by subpoena under Rule 45. (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2): (A) if the parties have not stipulated to the deposition and: (i) the deposition would result in more than 10 depositions being taken under this rule or Rule 30 by the plaintiffs, or by the defendants, or by the third-party defendants; or (ii) the deponent has already been deposed in the case; (iii) the party seeks to take a deposition before the time specified in Rule 26(d); or (B) if the deponent is confined in prison. (3) Service; Required Notice. A party who wants to depose a person by written questions must serve them on every other party, with a notice stating, if known, the deponent's name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs. The notice must also state the name or 98

125 DISCLOSURES AND DISCOVERY Rule 32 descriptive title and the address of the officer before whom the deposition will be taken. ( 4) Questions Directed to an Organization. A public or private corporation, a partnership, an association, or a governmental agency may be deposed by written questions in accordance with Rule 30(b)(6). (5) Questions from Other Parties. Any questions to the deponent from other parties must be served on all parties as follows: cross-questions, within 14 days after being served with the notice and direct questions; redirect questions, within 7 days after being served with cross-questions; and recross-questions, within 7 days after being served with redirect questions. The court may, for good cause, extend or shorten these times. (b) Delivery to the Officer; Officer's Duties. The party who noticed the deposition must deliver to the officer a copy of all the questions served and of the notice. The officer must promptly proceed in the manner provided in Rule 30(c), (e), and (D to: (1) take the deponent's testimony in response to the questions; (2) prepare and certify the deposition; and (3) send it to the party, attaching a copy of the questions and of the notice. (c) Notice of Completion or Filing. (1) Completion. The party who noticed the deposition must notify all other parties when it is completed. (2) Filing. A party who files the deposition must promptly notify all other parties of the filing. Rule 32. Using Depositions in Court Proceedings (a) Using Depositions. (1) In General. At a hearing or trial, all or part of a deposition may be used against a party on these conditions: (A) the party was present or represented at the taking of the deposition or had reasonable notice of it; (B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and (C) the use is allowed by Rule 32(a)(2) through (8). (2) Impeachment and Other Uses. Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the Federal Rules of Evidence. 99

126 Rule 32 RULES OF CIVIL PROCEDURE (3) Deposition of Party, Agent, or Designee. An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4). ( 4) Unavailable Witness. A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds: (A) that the witness is dead; (B) that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition; (C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment; (D) that the party offering the deposition could not procure the witness's attendance by subpoena; or (E) on motion and notice, that exceptional circumstances make it desirable-in the interest of justice and with due regard to the importance of live testimony in open court-to permit the deposition to be used. (5) Limitations on Use. (A) Deposition Taken on Short Notice. A deposition must not be used against a party who, having received less than 14 days' notice of the deposition, promptly moved for a protective order under Rule 26(c)(1)(B) requesting that it not be taken or be taken at a different time or place-and this motion was still pending when the deposition was taken. (B) Unavailable Deponent; Party Could Not Obtain an Attorney. A deposition taken without leave of court under the unavailability provision of Rule 30(a)(2)(A)(iii) must not be used against a party who shows that, when served with the notice, it could not, despite diligent efforts, obtain an attorney to represent it at the deposition. (6) Using Part of a Deposition. If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts. (7) Substituting a Party. Substituting a party under Rule 25 does not affect the right to use a deposition previously taken. (8) Deposition Taken in an Earlier Action. A deposition lawfully taken and, if required, filed in any federal- or state-court action may be used in a later action involving the same subject matter between the same parties, or their representatives or succes- 100

127 DISCLOSURES AND DISCOVERY Rule 32 sors in interest, to the same extent as if taken in the later action. A deposition previously taken may also be used as allowed by the Federal Rules of Evidence. (b) Objections to Admissibility. Subject to Rules 28(b) and 32(d)(3), an objection may be made at a hearing or trial to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying. (c) Form of Presentation. Unless the court orders otherwise, a party must provide a transcript of any deposition testimony the party offers, but may provide the court with the testimony in nontranscript form as well. On any party's request, deposition testimony offered in a jury trial for any purpose other than impeachment must be presented in nontranscript form, if available, unless the court for good cause orders otherwise. (d) Waiver of Objections. (1) To the Notice. An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving the notice. (2) To the Officer's Qualification. An objection based on disqualification of the officer before whom a deposition is to be taken is waived if not made: (A) before the deposition begins; or (B) promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known. (3) To the Taking of the Deposition. (A) Objection to Competence, Relevance, or Materiality. An objection to a deponent's competence-or to the competence, relevance, or materiality of testimony-is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time. (B) Objection to an Error or Irregularity. An objection to an error or irregularity at an oral examination is waived if: (i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party's conduct, or other matters that might have been corrected at that time; and (ii) it is not timely made during the deposition. (C) Objection to a Written Question. An objection to the form of a written question under Rule 31 is waived if not served in writing on the party submitting the question within the time for serving responsive questions or, if the question is a recrossquestion, within 7 days after being served with it. 101

128 l Rule 32 RULES OF CIVIL PROCEDURE ( 4) To Completing and Returning the Deposition. An objection to how the officer transcribed the testimony-or prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition-is waived unless a motion to suppress is made promptly after the error or irregularity becomes known or, with reasonable diligence, could have been known. Michigan Court Rule 2.302(B)(4)(d) Comparative State Provisions Rule 32(a) A party may depose a witness that he or she expects to call as an expert at trial. The deposition may be taken at any time before trial on reasonable notice to the opposite party, and may be offered as evidence at trial as provided in MCR 2.308(A). The court need not adjourn the trial because of the unavailability of expert witnesses or their depositions. Michigan Court Rule 2.308(A) Depositions or parts thereof shall be admissible at trial or on the hearing of a motion or in an interlocutory proceeding only as provided in the Michigan Rules of Evidence. Rule 33. Interrogatories to Parties (a) In General. (1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(2). (2) Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time. (b) Answers and Objections. (1) Responding Party. The interrogatories must be answered: (A) by the party to whom they are directed; or (B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party. (2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. 102

129 DISCLOSURES AND DISCOVERY Rule 33 (3) Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath. ( 4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure. (5) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections. (c) Use. An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence. (d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries. Notes on Amendments to Federal Rule 33 and Comparative Provisions (a) Amendment in 1970 to Rule 33 The Advisory Committee commented on a 1970 amendment to Federal Rule 33 as follows: Subdivision * * * [(a)(2)]. There are numerous and conflicting decisions on the question whether and to what extent interrogatories are limited to matters "of fact," or may elicit opinions, contentions, and legal conclusions. * * * Rule 33 is amended to provide that an interrogatory is not objectionable merely because it calls for an opinion or contention that relates to fact or the application of law to fact. Efforts to draw sharp lines between facts and opinions have invariably been unsuccessful, and the clear trend of the cases is to permit "factual" opinions. As to requests for opinions or contentions that call for the application of law to fact, they can be most useful in narrowing and sharpening the issues, which is a major purpose of discovery. * * * On the other hand, under the new language interrogatories may not extend to issues of "pure law," i.e., legal issues unrelated to the facts of the case. * * *. (b) Amendment in 1980 to What Is Now Rule 33(d) The last sentence of Rule 33(d) * * * was added in Committee commented as follows: The Advisory The Committee is advised that parties upon whom interrogatories are served have occasionally responded by directing the interrogating party to a mass of business records or by offering to make all of their records available, justifying the response by the option provided by this subdivision. Such practices are an abuse of the option. A party who is permitted by the terms of this subdivision to offer 103

130 Rule 33 RULES OF CIVIL PROCEDURE records for inspection in lieu of answering an interrogatory should offer them in a manner that permits the same direct and economical access that is available to the party. If the information sought exists in the form of compilations, abstracts or summaries then available to the responding party, those should be made available to the interrogating party. (c) Amendment in 1993 to Rule 33 A revision to what now is Rule 33(a)(l) limits the number of interrogatories. The Advisory Committee on Rules, in commenting on the change, stated: Because Rule 26(a)(l) * * * requires disclosure of much of the information previously obtained by this form of discovery, there should be less occasion to use [Rule 33] * * *. Experience in over half of the district courts has confirmed that limitations on the number of interrogatories are useful and manageable. (d) Comparative State Provisions 1. Scope of Usage as to Claims and Parties New York Civil Practice Law and Rules Except as otherwise provided herein, after commencement of an action, any party may serve upon any other party written interrogatories. Except in a matrimonial action, a party may not serve written interrogatories on another party and also demand a bill of particulars of the same party pursuant to section In the case of an action to recover damages for personal injury, injury to property or wrongful death predicated solely on * * * negligence, a party shall not be permitted to serve interrogatories on and conduct a deposition of the same party * * * without leave of court. 2. After commencement of a matrimonial action or proceeding, upon motion brought by either party, upon such notice to the other party and to the non-party from whom financial disclosure is sought, and given in such manner as the court shall direct, the court may order a non-party to respond under oath to written interrogatories limited to furnishing financial information concerning a party, and further provided such information is both reasonable and necessary in the prosecution or the defense of such matrimonial action or proceeding. 2. Limitations on Detail Required in Response California Civil Procedure Code If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained. The responding party shall then afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them. 3. Restriction on Number of Interrogatories Allowed Minnesota Rule of Civil Procedure 33.0l(a) Any party may serve written interrogatories upon any other party. Interrogatories may, without leave of court, be served upon any party after service of the summons and complaint. No party may serve more than a total of 50 interrogatories upon any other party unless permitted to do so by the court upon motion, notice and a showing of good cause. In computing the total number of interrogatories each subdivision of separate questions shall be counted as an interrogatory. 104

131 DISCLOSURES AND DISCOVERY Rule 34 Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes (a) In General. A party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: (A) any designated documents or electronically stored information-including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations-stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or (B) any designated tangible things; or (2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. (b) Procedure. (1) Contents of the Request. The request: (A) must describe with reasonable particularity each item or category of items to be inspected; (B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and (C) may specify the form or forms in which electronically stored information is to be produced. (2) Responses and Objections. (A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. (B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons. (C) Objections. An objection to part of a request must specify the part and permit inspection of the rest. (D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form-or if no 105

132 Rule 34 RULES OF CIVIL PROCEDURE form was specified in the request-the party must state the form or forms it intends to use. (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form. (c) Nonparties. As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection. Notes on Amendments to Federal Rule 34 and Comparative State Provisions (a) Amendments in 1970 to Rule 34 The Advisory Committee commented on the 1970 amendments to Rule 34 as follows: Rule 34 is revised to accomplish the following major changes in the existing rule: (1) to eliminate the requirement of good cause; (2) to have the rule operate extrajudicially; (3) to include testing and sampling as well as inspecting or photographing tangible things; and (4) to make clear that the rule does not preclude an independent action for analogous discovery against persons not parties. Subdivision (a). * * * The good cause requirement was originally inserted in Rule 34 as a general protective provision in the absence of experience with the specific problems that would arise thereunder. As the note to Rule 26(b)(3) on trial preparation materials makes clear, good cause has been applied differently to varying classes of documents, though not without confusion. It has often been said in court opinions that good cause requires a consideration of need for the materials and of alternative means of obtaining them, i.e., something more than relevance and lack of privilege. But the overwhelming proportion of the cases in which the formula of good cause has been applied to require a special showing are those involving trial preparation. In practice, the courts have not treated documents as having a special immunity to discovery simply because of their being documents. Protection may be afforded to claims of privacy or secrecy or of undue burden or expense under what is now Rule 26(c) (previously Rule 30(b)). To be sure, an appraisal of "undue" burden inevitably entails consideration of the needs of the party seeking discovery. With special provisions added to govern trial preparation materials and experts, there is no longer any occasion to retain the requirement of good cause. The revision of Rule 34 to have it operate extrajudicially, rather than by court order, is to a large extent a reflection of existing law office practice. The Columbia Survey shows that of the litigants seeking inspection of documents or things, only about 25 percent filed motions for court orders. This minor fraction nevertheless accounted for a significant number of motions. About half of these 106

133 DISCLOSURES AND DISCOVERY Rule 35 motions were uncontested and in almost all instances the party seeking production ultimately prevailed. Although an extrajudicial procedure will not drastically alter existing practice under Rule 34-it will conform to it in most cases-it has the potential of saving court time in a substantial though proportionately small number of cases tried annually. * * * (b) Amendments to Rule 34(b) Current Rule 34(b)(2)(E) is the product of several amendments to proscribe the practice of some litigants of deliberately mixing critical documents with many others in order to obscure significance and to deal with the increasing importance of the discovery of electronically stored information. (c) Comparative State Provisions New York Civil Practice Law and Rules After commencement of an action, any party may serve on any other party a notice or on any other person a subpoena duces tecum: (i) to produce and permit the party seeking discovery, or someone acting on his behalf, to inspect, copy, test or photograph any designated documents or any things which are in the possession, custody or control of the party served; or (ii) to permit entry upon designated land or other property in the possession, custody or control of the party or person served for the purpose of inspecting, measuring, surveying, sampling, testing, photographing or recording by motion pictures or otherwise the property or any specifically designated object or operation thereon. 2. The notice or subpoena duces tecum shall specify the time, which shall be not less than twenty days after service of the notice or subpoena, and the place and manner of making the inspection, copy, test or photograph, or of the entry upon the land or other property * * * * * * Rule 35. Physical and Mental Examinations (a) Order for an Examination. (1) In General. The court where the action is pending may order a party whose mental or physical condition-including blood group-is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control. (2) Motion and Notice; Contents of the Order. The order: (A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and (B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it. (b) Examiner's Report. ( 1) Request by the Party or Person Examined. The party who moved for the examination must, on request, deliver to the requester a copy of the examiner's report, together with like reports of all earlier examinations of the same condition. The request may 107

134 Rule 36 RULES OF CIVIL PROCEDURE that the matter is admitted or that an amended answer be served. The court may defer its final decision until a pretrial conference or a specified time before trial. Rule 37(a)(5) applies to an award of expenses. (b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding. Notes on Amendments to Federal Rule 36 The 1970 amendments made several important changes in Rule 36. Advisory Committee commented on these changes as follows: Subdivision (a). As revised, the subdivision provides that a request may be made to admit any matters within the scope of Rule 26(b) that relate to statements or opinions of fact or of the application of law to fact. It thereby eliminates the requirement that the matters be "of fact." This change resolves conflicts in the court decisions as to whether a request to admit matters of "opinion" and matters involving "mixed law and fact" is proper under the rule. * * * Not only is it difficult as a practical matter to separate "fact" from "opinion," * * * but an admission on a matter of opinion may facilitate proof or narrow the issues or both. An admission of a matter involving the application of law to fact may, in a given case, even more clearly narrow the issues. For example, an admission that an employee acted in the scope of his employment may remove a major issue from the trial. * * * Courts have also divided on whether an answering party may properly object to request for admission as to matters which that party regards as "in dispute." * * * The proper response in such cases is an answer. The very purpose of the request is to ascertain whether the answering party is prepared to admit or regards the matter as presenting a genuine issue for trial. In his answer, the party may deny, or he may give as his reason for inability to admit or deny the existence of a genuine issue. The party runs no risk of sanctions if the matter is genuinely in issue, since Rule 37(c) provides a sanction of costs only when there are no good reasons for a failure to admit. * * * Another sharp split of authority exists on the question whether a party may base his answer on lack of information or knowledge without seeking out additional information. One line of cases has held that a party may answer on the basis of such knowledge as he has at the time he answers. * * * The rule as revised adopts the majority view, as in keeping with a basic principle of the discovery rules that a reasonable burden may be imposed on the parties when its discharge will facilitate preparation for trial and ease the trial process. It has been argued against this view that one side should not have the burden of "proving" the other side's case. The revised rule requires only that the answering party make reasonable inquiry and secure such knowledge and information as are readily obtainable by him. In most instances, the investigation will be necessary either to his own case or to preparation for rebuttal. Even when it is not, the information may be close enough at hand to be "readily obtainable." Rule 36 requires only that the party state that he has taken these steps. The 110 The

135 DISCLOSURES AND DISCOVERY Rule 37 sanction for failure of a party to inform himself before he answers lies in the award of costs after trial, as provided in Rule 37(c). * * * A problem peculiar to Rule 36 arises if the responding party serves answers that are not in conformity with the requirements of the rule-for example, a denial is not "specific," or the explanation of inability to admit or deny is not "in detail." Rule 36 now makes no provision for court scrutiny of such answers before trial, and it seems to contemplate that defective answers bring about admissions just as effectively as if no answer had been served. Some cases have so held. * * * Giving a defective answer the automatic effect of an admission may cause unfair surprise. A responding party who purported to deny or to be unable to admit or deny will for the first time at trial confront the contention that he has made a binding admission. Since it is not always easy to know whether a denial is "specific" or an explanation is "in detail," neither party can know how the court will rule at trial and whether proof must be prepared. Some courts, therefore, have entertained motions to rule on defective answers. They have at times ordered that amended answers be served, when the defects were technical, and at other times have declared that the matter was admitted. * * * The rule as revised conforms to the latter practice. Subdivision (b). The rule does not now indicate the extent to which a party is bound by his admission. Some courts view admissions as the equivalent of sworn testimony. * * * At least in some jurisdictions a party may rebut his own testimony, e.g., Alamo v. Del Rosario, 98 F.2d 328 (D.C.Cir.1938), and by analogy an admission made pursuant to Rule 36 may likewise be thought rebuttable. * * * In McSparran v. Hanigan, 225 F.Supp. 628, (E.D.Pa.l963), the court held that an admission is conclusively binding, though noting the confusion created by prior decisions. The new provisions give an admission a conclusively binding effect, for purposes only of the pending action, unless the admission is withdrawn or amended. In form and substance a Rule 36 admission is comparable to an admission in pleadings or a stipulation drafted by counsel for use at trial, rather than to an evidentiary admission of a party. * * * Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions [Rule 37(b)(l) is subject to an amendment adding language set forth in italics at the end of that section. Unless Congress intervenes the amendment will become effective December 1, In addition the amendment would add the word "Sought" to the title of Rule 37(b)(2).] (a) Motion for an Order Compelling Disclosure or Discovery. ( 1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action. (2) Appropriate Court. A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken. (3) Specific Motions. 111

136 Rule 37 RULES OF CIVIL PROCEDURE (A) To Compel Disclosure. If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. (B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if: (i) a deponent fails to answer a question asked under Rule 30 or 31; (ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4); (iii) a party fails to answer an interrogatory submitted under Rule 33; or (iv) a party fails to respond that inspection will be permitted-or fails to permit inspection-as requested under Rule 34. (C) Related to a Deposition. When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order. ( 4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond. (5) Payment of Expenses; Protective Orders. (A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted-or if the disclosure or requested discovery is provided after the motion was filed-the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. (B) If the Motion Is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require 112

137 DISCLOSURES AND DISCOVERY Rule 37 the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust. (C) If the Motion Is Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion. (b) Failure to Comply With a Court Order. (1) Sanctions Sought in the District Where the Deposition Is Taken. If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court. Unless Congress intervenes, the following paragraph will be added on Dec. 1, If a deposition-related motion is transferred to the court where the action is pending, and that court orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of either the court where the discovery is taken or the court where the action is pending. (2) Sanctions Sought in the District Where the Action Is Pending. (A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent-or a witness designated under Rule 30(b)(6) or 31(a)(4)-fails to obey an order to provide or permit discovery, including an order under Rule 26( ), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; 113

138 Rule 37 RULES OF CIVIL PROCEDURE (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. (B) For Not Producing a Person for Examination. If a party fails to comply with an order under Rule 35(a) requiring it to produce another person for examination, the court may issue any of the orders listed in Rule 37(b)(2)(A)(i)-(vi), unless the disobedient party shows that it cannot produce the other person. (C) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust. (c) Failure to Disclose, to Supplement an Earlier Response, or to Admit. (1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). (2) Failure to Admit. If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof. The court must so order unless: (A) the request was held objectionable under Rule 36(a); (B) the admission sought was of no substantial importance; (C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or (D) there was other good reason for the failure to admit. 114

139 DISCLOSURES AND DISCOVERY Rule 37 (d) Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection. (1) In General. (A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if: (i) a party or a party's officer, director, or managing agent-or a person designated under Rule 30(b)(6) or 31(a)(4)-fails, after being served with proper notice, to appear for that person's deposition; or (ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response. (B) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action. (2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(l)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c). (3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust. (e) Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party. for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. (f) Failure to Participate in Framing a Discovery Plan. If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(0, the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure. 115

140 Rule 37 RULES OF CIVIL PROCEDURE Notes on Amendments to Federal Rule 37 and Comparative Federal and State Provisions (a) Amendments in 1993 to Federal Rule 37 Rule 37 has been revised to reflect the revisions made to Rule 26(a) mandating the automatic exchange of information without formal discovery. Subdivision (a)(2)(a) [now Rule 37(a)(3)(A)] has been added to provide a method for compelling disclosure where a party fails to fully comply with Rule 26(a). Under (c)(l) of the revised rule, if the information is important evidence for the non-disclosing party, the party seeking to compel disclosure may, as an alternative measure, ask the court to exclude the evidence at trial. Subdivision (c) provides that as a sanction for failing to automatically disclose information required by Rule 26(a) or 26(e)(l), a party will be prohibited from using such information at trial "unless the failure was substantially justified." Unlike the old version of the rule, this provision is self-executing and does not require the opposing party to make a motion. The exception from sanctions where the failure to disclose is harmless serves to mitigate the harshness of this rule. 1. Local Federal Rule (b) Comparative Provisions Rule 37(a) United States District Court, District of Columbia, Civil Rule 7(m) Duty to Confer on Nondispositive Motions Before filing any nondispositive motion in a civil action, counsel shall discuss the anticipated motion with opposing counsel, either in person or by telephone, in a good-faith effort to determine whether there is any opposition to the relief sought and, if there is opposition, to narrow the areas of disagreement. The duty to confer also applies to non-incarcerated parties appearing pro se. A party shall include in its motion a statement that the required discussion occurred, and a statement as to whether the motion is opposed. 2. Comparative State Provisions California Civil Procedure Code Conduct subject to sanctions Misuses of the discovery process include, but are not limited to, the following: (a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery. (b) Using a discovery method in a manner that does not comply with its specified procedures. (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (d) Failing to respond or to submit to an authorized method of discovery. (e) Making, without substantial justification, an unmeritorious objection to discovery. CD Making an evasive response to discovery. (g) Disobeying a court order to provide discovery. (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. 116

141 DISCLOSURES AND DISCOVERY Rule 37 (i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made. California Civil Procedure Code Monetary sanctions for failure to confer Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. California Civil Procedure Code Monetary sanctions; issue sanctions; evidence sanctions; terminating sanctions; contempt sanctions; authority of court to impose To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process. (a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this article, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (b) The court may impose an issue sanction ordering that designed facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses. (c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (d) The court may impose a terminating sanction by one of the following orders: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. (2) An order staying further proceedings by that party until an order for discovery is obeyed. (3) An order dismissing the action, or any part of the action, of that party. (4) An order rendering a judgment by default against that party. (e) The court may impose a contempt sanction by an order treating the misuse of the discovery process as a contempt of court. (D (1) Notwithstanding subdivision (a), or any other section of this title, absent exceptional circumstances, the court shall not impose sanctions on a party or attorney for failure to provide electronically stored information 117

142 Rule 37 RULES OF CIVIL PROCEDURE that has been lost, damaged, altered, or overwritten as a result of the routine good faith operation of an electronic information system. (2) This subdivision shall not be construed to alter any obligation to preserve discoverable information. California Civil Procedure Code Requests for sanctions; form and supporting documents A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought. TITLE VI. TRIALS Rule 38. Right to a Jury Trial; Demand (a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution-or as provided by a federal statute-is preserved to the parties inviolate. (b) Demand. On any issue triable of right by a jury, a party may demand a jury trial by: (1) serving the other parties with a written demand-which may be included in a pleading-no later than 14 days after the last pleading directed to the issue is served; and (2) filing the demand in accordance with Rule 5(d). (c) Specifying Issues. In its demand, a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may-within 14 days after being served with the demand or within a shorter time ordered by the court-serve a demand for a jury trial on any other or all factual issues triable by jury. (d) Waiver; Withdrawal. A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent. (e) Admiralty and Maritime Claims. These rules do not create a right to a jury trial on issues in a claim that is an admiralty or maritime claim under Rule 9(h). Federal and State Provisions Governing the Right to Jury Trial (a) Constitutional Provisions United States Constitution, 7th Amendment In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. 118

143 westiaw. FOR EDUCATIONAL USE ONLY Page F.R.D. 309,91 FairEmpl.Prac.Cas. (BNA) 1574 (Cite as: 217 F.R.D. 309) This is edited for class. United States District Court, S.D. New York. Laura ZUBULAKE, Plaintiff, v. UBS WARBURG LLC, UBS Warburg, and UBS AG, Defendants. No. 02 Civ. 1243(SAS). May 13, Female former employee brought action against former employer, asserting city, state, and federal law gender discrimination and retaliation claims. Employee moved for an order compelling production of archived s. The District Court, Scheindlin, J., held that: (1) employee was entitled to discovery of relevant s that had been deleted and resided only on backup disks, and (2) consideration of cost-shifting of discovery costs was proper. Ordered accordingly. OPINION AND ORDER SCHEINDLIN, District Judge. The world was a far different place in 1849, when Henry David Thoreau opined (in an admittedly broader context) that "[t]he process of discovery is very simple." That hopeful maxim has given way to rapid technological advances, requiring new solutions to old problems. The issue presented here is one such problem, recast in light of current technology: To what extent is inaccessible electronic data discoverable, and who should pay for its production? I. INTRODUCTION The Supreme Court recently reiterated that our "simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to defme disputed facts and issues and to dispose of unmeritorious claims." FNl Thus, it is now beyond dispute that "[b ]road discovery is a cornerstone of the litigation process contemplated by the Federal Rules of Civil Procedure." tw. The Rules contemplate a minimal burden to bringing a claim; that claim is then fleshed out through vigorous and expansive discovery.fn 4 In one context, however, the reliance on broad discovery has hit a roadblock. As individuals and corporations increasingly do business electronically -using computers to create and store documents, make deals, and exchange s-the universe of discoverable material has expanded exponentially. The more information there is to discover, the more expensive it is to discover all the relevant information until, in the end, "discovery is not just about uncovering the truth, but also about how much of the truth the parties can afford to disinter." This case provides a textbook example of the difficulty of balancing the competing needs of broad discovery and manageable costs. Laura Zubulake is suing UBS Warburg LLC, UBS Warburg, and UBS AG (collectively, "UBS" or the "Firm") under Federal, State and City law for gender discrimination and illegal retaliation. Zubulake's case is certainly not frivolous and if she prevails, her damages may be substantial. She contends that key evidence is located in various s exchanged among UBS employees that now exist only on backup tapes and perhaps other archived media. According to UBS, restoring those s would cost approximately $175,000.00, exclusive of attorney time in reviewing the s. Zubulake now moves for an order compelling UBS to produce those s at its expense. ll. BACKGROUND B. The Discovery Dispute Discovery in this action commenced on or about June 3, 2002, when Zubulake served UBS with her first document request. At issue here is request number twenty-eight, for "[a]ll documents concerning any communication by or between UBS employees concerning Plaintiff." FNI 4 The term document in Zubulake's request "includ[es], without limitation, electronic or computerized data compilations." On July 8, 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

144 FOR EDUCATIONAL USE ONLY Page2 217 F.R.D. 309, 91 Fair Empi.Prac.Cas. (BNA) 1574 (Cite as: 217 F.R.D. 309) 2002, UBS responded by producing approximately 350 pages of documents, including approximately 100 *313 pages of s. UBS also objected to a substantial portion of Zubulake's requests.llill FN14. Plaintiff's First Request for Production of Documents 128, Ex. E to the Declaration of Kevin B. Leblang, counsel to UBS ("Leblang Dec."). FNI5. See Defendants' Response to Plaintiff's First Request for Production of Documents, Ex. F to the Leblang Dec. On September 12, 2002-after an exchange of angry letters and a conference before United States M~gistrate Judge Gabriel W. Gorenstein-the parties reached an agreement (the "9/12/02 Agreement"). With respect to document request twenty-eight, the parties reached the following agreement, in relevant part: Defendants will [ ] ask UBS about how to retrieve s that are saved in the firm's computer system and will produce responsive e-m ails if retrieval is possible and Plaintiff names a few individuals. UBS, however, produced no additional s and insisted that its initial production (the I 00 pages of s) was complete. As UBS's opposition to the instant motion makes clear-although it remains l.ulsaid-ubs never searched for responsive s on any of its backup tapes. To the contrary, UBS informed Zubulake that the cost of producing s on backup tapes would be prohibitive (estimated at the time at approximately $300,000.00).. Zubulake, believing that the 9112/02 Agreement included production of s from backup tapes, objected to UBS's nonproduction. In fact, Zubulake knew that there were additional responsive s that UBS had failed to produce because she herself had produced approximately 450 pages of correspondence. Clearly, nwnerous responsive s had been created and deleted at UBS, and Zubulake wanted them. FN 19. The term "deleted" is sticky in the context of electronic data. " 'Deleting' a flle does not actually erase that data from the computer's storage devices. Rather, it simply finds the data's entry in the disk directory and changes it to a 'not used' status-thus permitting the computer to write over the 'deleted' data. Until the computer writes over the 'deleted' data, however, it may be recovered by searching the disk itself rather than the disk's directory. Accordingly, many flies are recoverable long after they have been deleted-even if neither the computer user nor the computer itself is aware of their existence. Such data is referred to as 'residual data.' " Shira A. Scheindlin & Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task?. 41 B.C. L.Rev. 327, 337 (2000) (footnotes omitted). Deleted data may also exist ~cause it was backed up before it was deleted. Thus, it may reside on backup tapes or similar media. Unless otherwise noted, I will use the term "deleted" data to mean residual data, and will refer to backed-up data as "backup tapes." III. LEGAL STANDARD Federal Rules of Civil Procedure 26 through 37 govern discovery in all civil actions. As the Supreme Court long ago explained, The pre-trial deposition-discovery mechanism established by Rules 26 to l7 is one of the most significant innovations of the Federal Rules of Civil Procedure. Under the prior federal practice, the pre-trial functions of notice-giving issue-formulation and fact-revelation were performed primarily and inadequately by the pleadings. Inquiry into the issues and the facts before trial was narrowly confined and was often cumbersome in method. The new rules, however, restrict the pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role in the preparation for trial. The various instruments of discovery now serve (I) as a device, along with the pre-trial hearing l.ulder 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 existence or whereabouts of facts, relative to those issues. Thus civil trials in the federal courts no longer need 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

145 FOR EDUCATIONAL USE ONLY Page3 217 F.R.D. 309,91 FairEmpi.Prac.Cas. (BNA) 1574 (Cite as: 217 F.R.D. 309) to be carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial. Consistent with this approach, Rule 26(b)(1) specifies that, Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible *316 at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii). In tum, Rule 26(b)(2) imposes general limitations on the scope of discovery in the form of a ''proportionality test": The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. Finally, "[u]nder [the discovery] rules, the presumption is that the responding party must bear the expense of complying with discovery requests, but [it] may invoke the district court's discretion under Rule 26(c) to grant orders protecting [it] from 'undue burden or expense' in doing so, including orders conditioning discovery on the requesting party's payment of the costs of discovery." The application of these various discovery rules is particularly complicated where electronic data is sought because otherwise discoverable evidence is often only available from expensive-to-restore backup media. That being so, courts have devised creative solutions for balancing the broad scope of discovery prescribed in Rule 26(b)(l) with the cost-consciousness of Rule 26(b)(2). By and large, the solution has been to consider cost-shifting: forcing the requesting party, rather than the answering party, to bear the cost of discovery. By far, the most influential response to the problem of cost-shifting relating to the discovery of electronic data was given by United States Magistrate Judge James C. Francis IV of this district in Rowe Enter- tainment. Judge Francis utilized an eight-factor test to determine whether discovery costs should be shifted. Those eight factors are: (1) the specificity of the discovery requests; (2) the likelihood of discovering critical information; (3) the availability of such information from other sources; (4) the purposes for which the responding party maintains the requested data; (5) the relative benefits to the parties of obtaining the information; (6) the total cost associated with production; (7) the relative ability of each party to control costs and its incentive to do so; and (8) the resources available to each party. [note: In a portion of this opinion, not included here, Judge Scheindlin explains her modifications of this test.j Both Zubulake and UBS agree that the eight-factor Rowe test should be used to determine whether cost-shifting is appropriate. IV. DISCUSSION A. Should Discovery of UBS's Electronic Data Be Permitted? Illill Under Rule 34, a party may request discovery of any document, "including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations... " The "inclusive description" of the term document "accord[s] with changing *317 technology." "It makes clear that Rule 34 applies to 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.