the f.r.c.p. part ii alan r. beckman, j.d

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The F.R.C.P.Part II

Alan R. Beckman, J.D.

Part II: F.R.C.P. rules 26 through 53

Introduction

These rules primarily address procedures relating to:

Discovery and sanctions for noncompliance

All trial related matters from jury selection through the verdict

F.R.C.P. rules 26 through 53

Rule 26: General provisions regarding discovery…***

This introductory rule discusses:• Initial, expert and pretrial

disclosures• Limitations on discovery, including

ESI• “Work product” & privilege issues• Protective orders, sequence &

planning• Signing discoveryNotes: Paralegals must know all about

discovery for several reasons


Rule 27: Depositions to perpetuate testimony*

• This discovery technique involves court approval to take depositions before a suit or an appeal is filed to preserve testimony

• Examples involve exigent circumstances

Notes: Due process requires notice of taking to all potential parties


Rule 28: Persons before whom depositions…*

Describes persons who take and record depositions

Notes: insures proper oaths are administered and accurate records and transcripts are produced


Rule 29: Stipulations regarding discovery**

Allows parties to modify discovery procedures by stipulations so long as the court time frames are unaffected

Notes: paralegals should proactively seek stipulations re: discovery

F.R.C.P. rules 26 through 53Rule 30: Depositions by oral

examination***

Provides for notice and taking of depositions up to 10 (more require stip. or order)

Addresses time restraints, costs, objections, manner of recording, written questions, witness changes and sanctions

Notes: paralegals should know how to “set up” depositions and digest a depo.


Rule 31: Depositions upon written questions*

Sets forth the procedure for taking this type of deposition, when court approval is needed and the role of the officer/reporter

Notes: this is used infrequently, in limited circumstances


Rule 32: Using depositions…**

• Indicates when and under what circumstances a deposition can be used in court hearings and trials

• Reasons used include refresh, impeach and unavailability

Notes: this rule must be considered

whenever preparing for hearing or trial and use of a depo. is needed.


Rule 33: Interrogatories…***

This major form of discovery allows written questions of opposing parties and provides form, limits (25), answering and use of records for answers

Notes: techniques include broad scope; bio., facts and assets questions; and use of sets


Rule 34: Producing documents…***

Provides for discovery of physical information:

• What is discoverable, including ESI• Contents of requests• To parties and by subpoena to non-

parties• Procedure for response, 30 days

Notes: techniques include broad scope; “catch-all” request; reasonableness


Rule 35: Physical and mental examinations**

When a party raises issues re: physical or mental conditions, this rule allows by order or stip. an I.M.E. with report sharing obligations

Notes: used frequently in personal injury cases, not self-executing


Rule 36: Requests for admissions***

Parties may seek admissions to different relevant facts using and admit or deny format

• Answered in 30 days• Admits are conclusive• Directed to parties

Notes: used to seek relevant commitments, focused and direct, phrasing techniques


Rule 37: Failure to make disclosures…***

Provides for enforcement and sanctions for noncompliance with discovery

• Two step process (compel and sanctions)

• Broad remedies including costs, suppression, default, dismissal, etc.

Notes: used to seek remedies when a party fails or refuses to provide discovery


Rule 38: Right to jury trial…*

Rule recognizes the right to trial by jury in civil actions generally upon the condition:

• A timely written demand is made• Waivers require parties’ consent• No demand results in waiver

Notes: paralegals often draft demands, two methods for demands


Rule 39: Trial by jury or by the Court*

Rarely used rule essentially indicating trial is to the court unless:

• Demand is made AND the issues are triable to jury (Not equitable actions)

• Note that demands for certain actions can be stricken

Notes: attorneys make decisions here, so, no worries for you in this rule!


Rule 40: Scheduling…*

Short rule setting priority in scheduling trials based upon statutes

Notes: attorneys make decisions here, so, no worries again for you in this rule!


Rule 41: Dismissal of actions**

Provides procedures for:• Voluntary and involuntary

dismissals• Examples• Dismissals without prejudice unless

based upon want of prosecutionNotes: paralegals need to track case

progress to insure prosecution occurs


Rule 42: Consolidation;Separate trials **

Provides procedures for trials to be combined or severed based on:

• Commonality – consolidated• Prejudice, efficiency - severedNotes: paralegals may draft motions

under this rule


Rule 43: Taking testimony*

Short rule simply describing ways testimony is allowed and requiring the court to only consider fact based testimony in some sworn format

Notes: paralegals use this to prepare for hearings and trials, especially in deciding whether affidavits are needed for motions


Rule 44.1: Determining foreign law*

Sets forth the requirements for proving foreign law through any relevant and material source, e.g., proving a French statute with a copy of the statute from a government publication

Notes: paralegals use this to prepare for hearings and trials and seek stipulations re: records (also judicial notice may occur)


Rule 45: Subpoena**

Sets forth the requirements for subpoenas:

• Contents• How served• Protection, quashing & modifying• Responding

Notes: consult for subpoena related issues for ad testificandum and duces tecum


Rule 46: Objecting…*

Discusses objections by eliminating formal exceptions and not requiring objections when there was no opportunity to make one

Notes: only real significance pertains to appellate issues in the record


Rule 47: Selection of jurors*

Discusses questioning (voir dire) by court and by counsel, peremptory and cause challenges

Notes: only real significance pertains to appellate points of error


Rule 48: Numbers of jurors…*

Discusses the number of jurors as from 6 to 12, according to law, returning a verdict by at least 6 and polling jurors

Notes: only real significance pertains to appellate points of error


Rule 49: Special verdicts etc….**

Discusses questions to the jury in special and in general verdicts and the effect of inconsistent answers on the verdict

Notes: paralegals often prepare these questions/interrogatories relating to elements and issues re: claims


Rule 50: Judgment as a matter of law…**

Combines motions for directed verdicts and for judgment n.o.v. and when granted, permits motions for a new trial to be considered. Tests the sufficiency of the evidence a/k/a a “prima facie” case

Notes: appellate points of error, primarily


Rule 51: Instructions to the jury…**

Sets forth the procedure for:• Submitting instructions before and

after the evidence closes• Making objections to preserve the

record

Notes: allows for appellate points of error, primarily


Rule 52: Findings and conclusions by the Court…*

Describes the process for rendering a verdict in a nonjury trial wherein the court must make specific findings of fact and conclusions of law on each issue raised

Notes: allows for appellate points of error, primarily


Rule 53: Masters

Describes when and how a master can be appointed, what their authority is and how their reports/orders are issued (contents and review)

Notes: assists courts in the timely handling of fact finding and damages determinations, among other matters

Class two Quizzers

NAME THAT RULE quiz: correctly answer the following: “What rule applies to…”

1. Depositions prior to filing suit_______2. Sanctions re: discovery_______3. Jury demand requirement_______4. Dismissal of suits due to

inactivity______5. Quashing a subpoena_______6. Selecting (voir dire) a jury_______7. Signing discovery_______8. Jury instructions_______

the f.r.c.p. part ii alan r. beckman, j.d

Documents

introductory rule

introductionthese rules

discovery procedures

discovery technique

major form of discovery

court approval

assets questions

court hearings