"This book provides the judge and practitioner with a well-organized, problem-oriented reference to the text of the discovery rules and their judicial interpretation. It also offers a pragmatic, clear, and authoritative exposition of how these rules work in their daily operation." —Federal Courts Law Review
Lawyers and clients today devote enormous time, effort, and expense to discovery. More often than not, discovery, and not trial, is the central battleground of a case. This concise handbook describes the problems that civil litigators encounter most frequently in pretrial discovery and presents suggestions and strategies for solving these problems.
Following a background discussion on the scope and types of discovery, discovery problems are presented as hypotheticals (many of which the authors have encountered in their experience) followed by a discussion that includes the law and helpful practice tips.
Section 1: Interrogatories, Document Requests, Requests for Admission, and Motions for Mental and Physical Examinations
Overview
1. Framing Proper Interrogatories
2. Interrogatories—Numerosity: Parts and Subparts
3. Interrogatories—Propriety of Definitions and Instructions
4. The Timing of Interrogatories and Requests for Production—How Soon Can You Ask, and When Is It Too Late?
5. Interrogatories—Sufficiency of Objections
6. Sufficiency and Supplementation of Interrogatory Answers
7. Interrogatories—Use in Court
8. Document Requests—Numerosity, Propriety, Timing, and Sufficiency of Objections
9. Discovery of Electronically Stored Information
10. Discovery of Witness Statements
11. Privilege Logs
12. Inadvertent Disclosure of Privileged Material
13. Motions for Mental or Physical Examination
14. Requests for Admission
Section 2: Depositions
Overview
15. Notice of Deposition—Timing
16. Taking a Deposition—The Basics
17. Depositions—Making Procedural and Evidentiary Objections
18. Asserting Privileges During Deposition
19. Instructing a Witness Not to Answer a Question
20. Misconduct by Counsel at a Deposition and During a Deposition Recess
21. Video Depositions
22. Who May Attend a Deposition?
23. Submission of Deposition Transcript to Witness for Review and Signature
24. Compensation for Treating Physician’s Deposition Preparation and Testimony
25. Depositions of Corporations and Other Entities under Rule 30(b)(6)
26. Discovery of Oral Communications and Privileged Documents Provided to a Witness
27. Discovery of Jury Consultant, Focus Group Materials, and Related Communications
28. Ethical Considerations in Representing Your Corporate Client’s Employees in Deposition
29. Discovery of Foreign Citizens and Residents
30. Use of Adverse Party’s Deposition at Trial
31. Use at Trial of Deposition of Unavailable Witness
32. Use of Deposition for Impeachment at Trial
Section 3: Experts Overview
33. The Timing of an Expert Deposition
34. Timing and Supplementation of Expert Disclosures
35. Expert Disclosures—Treating Physician or Other Hybrid Fact/Expert Witness
36. Taking an Expert’s Deposition—The Basics
37. Discovery of Oral Communications and Privileged Documents Shared with Expert
38. Discovery of Facts Known or Opinions Held by Expert Not Expected to Testify at Trial
39. Deposing Opposing Party’s Former Expert in the Same Case
40. Discovery of Draft Report by Testifying Expert
41. Discovery and Daubert
42. Reasonableness of Fees and Expenses Charged to Deposing Party by Adverse Expert
Section 4: Sanctions and Protective Orders
Overview
43. Rule 26(a) Disclosures and Rule 37(c) Motion for Failure to Disclose, Misleading Disclosures, or Refusal to Admit
44. Sanctions for Bad-Faith Discovery Requests: The Requirement of a Signature on Discovery Requests, Responses, and Objections
45. Motion to Compel Discovery
46. Motion for Protective Order
47. Rule 37(d) Sanctions for Failure of a Party to Attend Its Own Deposition or Respond to Interrogatories or Document Production Requests
48. Non-production, Spoliation, Discovery Violations, and Adverse Inference
49. Sanctions for Failure to Comply with Court-Ordered Discovery
50. Sanctions for Failure to Cooperate during Discovery 51. Chart Summarizing Discovery Sanctions
Appendix 1: Federal Rules of Civil Procedure 26–37 and Rule 45
Appendix 2: Discovery Guidelines of the United States District Court for the District of Maryland
Appendix 3: Standard Interrogatories in the United States District Court for the District of Maryland
Appendix 4: American Bar Association Civil Discovery Standards and August 2004 Amendments
Appendix 5: United States District Court for the District of Maryland Suggested Protocol for Discovery of Electronically Stored Information Table of Cases
Index
The Honorable Paul W. Grimm serves as the Chief Magistrate Judge for the United States District Court, District of Maryland, where he has had many years' experience resolving discovery disputes in civil cases. Prior to his judicial appointment, he handled commercial litigation in private practice and has also served as an Assistant Attorney General for the State of Maryland, Assistant State's Attorney for Baltimore County, and captain in the U.S. Army Judge Advocate General's Corps. He is the author of a series of books on evidence and procedure. Judge Grimm serves as an adjunct professor of law at the University of Maryland School of Law, where he teaches trial evidence and pretrial civil procedure. He is a frequent lecturer on evidence and procedure at CLE seminars throughout the country.
Charles S. Fax serves as counsel to the Maryland firm of Rifkin, Livingston, Levitan & Silver, following 17 years as senior litigation partner and co-chairman of the litigation department in the Baltimore and Washington, D.C., offices of Shapiro Sher Guinot & Sandler, P.A. He concentrates in commercial, securities, and employment litigation, representing corporations and their officers in state and federal courts and in arbitration. Fax serves as an associate editor and columnist for Litigation News, a quarterly publication of the American Bar Association Section of Litigation, and between 2006 and 2008 served as editor of Litigation News Online, a bi-monthly, Web-based publication of the ABA Section of Litigation. Fax lectures frequently in the field of civil procedure and has been a guest lecturer at the University of Maryland School of Law and Howard University Law School. He received his undergraduate degree from the Johns Hopkins University and his law degree with honors from the George Washington University Law School.
Paul Mark Sandler is a partner in the law firm of Shapiro Sher Guinot & Sandler, P.A., and is an active trial lawyer representing many notable clients in a wide variety of cases in state and federal courts. Sandler is a frequent lecturer on trial and appellate practice, founder and former chair of the Litigation Section of the Maryland State Bar Association, and past secretary of the Litigation Section of the American Bar Association. He received his undergraduate degree from Hobart College and his law degree from Georgetown University Law Center, and was admitted to the Maryland Bar in 1972.
Format: 6x9" Softcover Copyright: 2009 Pages: 602 ISBN: 978-1-60442-602-1 Publisher:American Bar Association
