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Federal Practice Manual for Legal Aid Attorneys: 6.2.5 Requests for Production of Documents

Federal Rule of Civil Procedure 34(a) permits a request from an opposing party to “produce and permit the requesting party or its representative to inspect, copy, test, or sample” documents, including electronically stored information, as well as “tangible things” that are in the responding party’s “possession, custody or control.” Generally, the responding party may either produce requested documents or permit them to be inspected and copied.

Federal Practice Manual for Legal Aid Attorneys: 6.2.6 Requests for Admission

Requests for admission issued pursuant to Federal Rule of Civil Procedure 36 are a useful but often underutilized tool. They are written requests for the admission of “the truth of any matters within the scope of Rule 26(b)(1)” for purposes of the pending action only.2400 These matters include: “facts, the application of law to fact, or opinions about either . . .

Federal Practice Manual for Legal Aid Attorneys: 6.2.7 Depositions

Federal Rule of Civil Procedure 30 permits a party to take an oral deposition under oath of any person, including individuals who are not parties. A deposition is, in essence, a conversation between an attorney and a witness that probes his or her knowledge, perceptions, understandings and opinions about the case under oath. A deposition may have two functions: to discover facts and opinion and to preserve testimony for trial. The latter is known as a de bene esse deposition and is governed by Federal Rule of Civil Procedure Rule 32.

Federal Practice Manual for Legal Aid Attorneys: 6.2.8 Deposition Practice and Strategy

In preparing for a deposition, begin by defining your objectives. Is your primary goal: (1) to determine what the witness knows; (2) to establish a basis for impeaching the witness at trial; (3) to learn the details of the adversary’s case in order to prepare better to rebut it’ (4) to commit the witness to testimony favorable to your position for a record for summary judgment? Whatever your goal, you should prepare for the deposition by outlining a series of questions or areas of inquiry, checking off each question or area as you cover it.

Federal Practice Manual for Legal Aid Attorneys: 6.2.9 Defending Depositions and Preparing Witnesses

Four key steps in preparing your witness to be deposed are: (1) review your entire file, including pleadings and prior deposition transcripts, to anticipate questions that the witness will be asked; (2) meet with the witness to review the deposition process, including the preliminaries and breaks, and the facts and documents about which you expect her to be asked, including the most difficult issues that are likely to be covered; (3) conduct a mock cross-examination of the witness. Try to keep this practice session as formal as possible, with a person acting as a court reporter.

Federal Practice Manual for Legal Aid Attorneys: 6.2.12 Electronic Discovery

It has become commonplace to say that we live in a digital age. Various assessments have highlighted the increasing proliferation of data being produced in electronic, as opposed to paper form. A frequently cited 2003 University of California Berkeley study estimated that five exabytes of information were created in 2002.

Federal Practice Manual for Legal Aid Attorneys: 6.2.14 ESI as a Mandated Form of Disclosure

Rule 34(a)(1)(A) clarifies that ESI is discoverable when “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.”2558 This reorients the Rule to add ESI as an object of discovery in addition to “documents” and “tangible things.”2559 ESI is a distinct type of discoverable information on a par with hard-copy documents.2560 The respon

Federal Practice Manual for Legal Aid Attorneys: 6.2.17 Reasonable Accessibility of ESI

Rule 26 creates a two-tiered approach to accessing ESI, by initially separating it into categories of “reasonably accessible” and “not reasonably accessible,” which in turn hinge upon a showing of “undue burden or cost.” The responding 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.”2586

Federal Practice Manual for Legal Aid Attorneys: 6.2.18 Cost-Shifting: Who Pays for the Production of “Inaccessible” ESI?

Under general discovery rules, apart from conditions that may attach to a protective order, “the presumption is that the responding party must bear the expense of complying with discovery requests….”2605 This presumption has been modified, though, in cases of discovery of ESI considered inaccessible due to significant expenses of access and production. The cost incurred by a responding party for accessing, retrieving, and producing ESI is now a primary factor reflected in the Rules.

Federal Practice Manual for Legal Aid Attorneys: 6.2.22 Shifting Costs of Discovery

Apart from the potential costs involved in discovery of electronically stored information, discovery in general can be expensive. Unless they can be obtained on a pro bono basis, depositions can entail significant court reporter’s fees, video recording costs, the fee of any expert whom you depose, and transportation and lodging for you to attend out-of-state depositions, or to bring a witness to the deposition.

Federal Practice Manual for Legal Aid Attorneys: 6.2.24 Motions to Compel and Sanctions

Although the Rules contemplate cooperative discovery, some lawyers unfortunately practice obstruction. Should you encounter late, incomplete, evasive, or ambiguous responses, or improper objections to discovery requests, you should write opposing counsel a demand for compliance, specifying a short time limit for a reply.2706 If a satisfactory reply is not forthcoming within your specified time limit, move under Rule 37(a)(3) to compel disclosures or discovery responses and, when appropriate, for sanctions.

Federal Practice Manual for Legal Aid Attorneys: 6.3.0 Introduction

Section 6.3 updated 2013 by Gill Deford, 2015 by Jeffrey S. Gutman, 2023 by Lisa J. D’Souza

To a great extent, federal litigation practice is a motions practice. Legal aid advocates involved in federal civil actions regularly file and respond to motions related to the discovery process as well as the substantive claims in the action. This Section discusses pretrial motions directed to the merits of the litigation.

Federal Practice Manual for Legal Aid Attorneys: 6.3.2 Local Rules

The Federal Rules of Civil Procedure are only the starting point here. It is critical that advocates also familiarize themselves with local rules of motion practice. If you are new to the district in which you are practicing, consult with senior attorneys in your office or program for advice on the sources of local written litigation procedure as well as the unwritten local customs and practices that judges and opposing counsel expect you to follow when filing motions.

Federal Practice Manual for Legal Aid Attorneys: 6.3.6 Memorandum in Support of Motion

The amount of factual detail and legal support necessary for a memorandum of law or brief depends on the nature of the motion involved, the anticipated position of the opposing party, and the expectations of the court. Most memoranda include a brief introduction to familiarize the court with the issues presented in the action and the specific motion, and to articulate the party’s theory of the case.