Meet and confer requirement in federal court

meet and confer requirement in federal court

The Federal Rules of Civil Procedure require the parties to Local rules in various courts have similar or expanded cooperation requirements. Axinn partner Nicholas Gaglio co-authored, "Satisfying the "Meet and Confer" Requirement in Federal Court," which appeared in the American Bar Association's. Except in categories of actions exempted by district court rule as. eDiscovery Federal Rules 16(b) and 26(f): Meet and Confer (A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including.

The amendment resolves this issue in favor of disclosure. Most of the decisions denying discovery, some explicitly, reason from the text of Rule 26 b that it permits discovery only of matters which will be admissible in evidence or appear reasonably calculated to lead to such evidence; they avoid considerations of policy, regarding them as foreclosed.

Some note also that facts about a defendant's financial status are not discoverable as such, prior to judgment with execution unsatisfied, and fear that, if courts hold insurance coverage discoverable, they must extend the principle to other aspects of the defendant's financial status.

The cases favoring disclosure rely heavily on the practical significance of insurance in the decisions lawyers make about settlement and trial preparation.

Disclosure of insurance coverage will enable counsel for both sides to make the same realistic appraisal of the case, so that settlement and litigation strategy are based on knowledge and not speculation. It will conduce to settlement and avoid protracted litigation in some cases, though in others it may have an opposite effect.

The amendment is limited to insurance coverage, which should be distinguished from any other facts concerning defendant's financial status 1 because insurance is an asset created specifically to satisfy the claim; 2 because the insurance company ordinarily controls the litigation; 3 because information about coverage is available only from defendant or his insurer; and 4 because disclosure does not involve a significant invasion of privacy.

Thus, an insurance company must disclose even when it contests liability under the policy, and such disclosure does not constitute a waiver of its claim. It is immaterial whether the liability is to satisfy the judgment directly or merely to indemnify or reimburse another after he pays the judgment. Thus, the provision makes no change in existing law on discovery of indemnity agreements other than insurance agreements by persons carrying on an insurance business.

Similarly, the provision does not cover the business concern that creates a reserve fund for purposes of self-insurance. For some purposes other than discovery, an application for insurance is treated as a part of the insurance agreement.

The provision makes clear that, for discovery purposes, the application is not to be so treated. The insurance application may contain personal and financial information concerning the insured, discovery of which is beyond the purpose of this provision.

meet and confer requirement in federal court

In no instance does disclosure make the facts concerning insurance coverage admissible in evidence. Subdivision b 3 —Trial Preparation: Some of the most controversial and vexing problems to emerge from the discovery rules have arisen out of requests for the production of documents or things prepared in anticipation of litigation or for trial.

The existing rules make no explicit provision for such materials. In deciding the Hickman case, the Supreme Court appears to have expressed a preference in for an approach to the problem of trial preparation materials by judicial decision rather than by rule. Sufficient experience has accumulated, however, with lower court applications of the Hickman decision to warrant a reappraisal. When the facts of the cases are studied, however, a distinction emerges based upon the type of materials.

Commonwealth Oil Refining Co. When lawyers have prepared or obtained the materials for trial, all courts require more than relevance; so much is clearly commanded by Hickman. In Guilford Nat'l Bank v. See also Mitchell v. United States, 32 F.

Satisfying the "Meet and Confer" Requirement in Federal Court: Axinn, Veltrop & Harkrider LLP

These changes conform to the holdings of the cases, when viewed in light of their facts. Apart from trial preparation, the fact that the materials sought are documentary does not in and of itself require a special showing beyond relevance and absence of privilege. The protective provisions are of course available, and if the party from whom production is sought raises a special issue of privacy as with respect to income tax returns or grand jury minutes or points to evidence primarily impeaching, or can show serious burden or expense, the court will exercise its traditional power to decide whether to issue a protective order.

On the other hand, the requirement of a special showing for discovery of trial preparation materials reflects the view that each side's informal evaluation of its case should be protected, that each side should be encouraged to prepare independently, and that one side should not automatically have the benefit of the detailed preparatory work of the other side.

Moreover, the language of the subdivision suggests the factors which the courts should consider in determining whether the requisite showing has been made. The importance of the materials sought to the party seeking them in preparation of his case and the difficulty he will have obtaining them by other means are factors noted in the Hickman case.

The courts should also consider the likelihood that the party, even if he obtains the information by independent means, will not have the substantial equivalent of the documents the production of which he seeks.

Consideration of these factors may well lead the court to distinguish between witness statements taken by an investigator, on the one hand, and other parts of the investigative file, on the other. The court in Southern Ry.

The analysis of the court suggests circumstances under which witness statements will be discoverable. The witness may have given a fresh and contemporaneous account in a written statement while he is available to the party seeking discovery only a substantial time thereafter. Lanham, supra at —; Guilford, supra at Or he may be reluctant or hostile.

Lanham, supra at —; Brookshire v. Ohio ; Diamond v. Or he may have a lapse of memory. Or he may probably be deviating from his prior statement. On the other hand, a much stronger showing is needed to obtain evaluative materials in an investigator's reports. Lanham, supra at —; Pickett v. Materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes are not under the qualified immunity provided by this subdivision.

No change is made in the existing doctrine, noted in the Hickman case, that one party may discover relevant facts known or available to the other party, even though such facts are contained in a document which is not itself discoverable.

The Hickman case left this issue open since the statements in that case were taken by a lawyer. As to courts of appeals, compare Alltmont v. United States, F.

Similarly, the district courts are divided on statements obtained by claim agents, compare, e. United States, 20 F. See 4 Moore's Federal Practice Guilford Nat'l Bank v. Subdivision b 3 reflects the trend of the cases by requiring a special showing, not merely as to materials prepared by an attorney, but also as to materials prepared in anticipation of litigation or preparation for trial by or for a party or any representative acting on his behalf.

The subdivision then goes on to protect against disclosure the mental impressions, conclusions, opinions, or legal theories concerning the litigation of an attorney or other representative of a party.

The Hickman opinion drew special attention to the need for protecting an attorney against discovery of memoranda prepared from recollection of oral interviews.

In enforcing this provision of the subdivision, the courts will sometimes find it necessary to order disclosure of a document but with portions deleted. Rules 33 and 36 have been revised in order to permit discovery calling for opinions, contentions, and admissions relating not only to fact but also to the application of law to fact. Under those rules, a party and his attorney or other representative may be required to disclose, to some extent, mental impressions, opinions, or conclusions.

But documents or parts of documents containing these matters are protected against discovery by this subdivision. Even though a party may ultimately have to disclose in response to interrogatories or requests to admit, he is entitled to keep confidential documents containing such matters prepared for internal use. Party's Right to Own Statement. The cases are divided. Wilson Freight Forwarding Co. Courts which treat a party's statement as though it were that of any witness overlook the fact that the party's statement is, without more, admissible in evidence.

Ordinarily, a party gives a statement without insisting on a copy because he does not yet have a lawyer and does not understand the legal consequences of his actions. Thus, the statement is given at a time when he functions at a disadvantage. Discrepancies between his trial testimony and earlier statement may result from lapse of memory or ordinary inaccuracy; a written statement produced for the first time at trial may give such discrepancies a prominence which they do not deserve.

In appropriate cases the court may order a party to be deposed before his statement is produced. Central Linen Service Co. Commentators strongly support the view that a party be able to secure his statement without a showing. The following states have by statute or rule taken the same position: The definition is adapted from 18 U. The statement of a party may of course be that of plaintiff or defendant, and it may be that of an individual or of a corporation or other organization.

Many, though not all, of the considerations supporting a party's right to obtain his statement apply also to the non-party witness. Insurance companies are increasingly recognizing that a witness is entitled to a copy of his statement and are modifying their regular practice accordingly.

Subdivision b 4 —Trial Preparation: This is a new provision dealing with discovery of information including facts and opinions obtained by a party from an expert retained by that party in relation to litigation or obtained by the expert and not yet transmitted to the party. The subdivision deals separately with those experts whom the party expects to call as trial witnesses and with those experts who have been retained or specially employed by the party but who are not expected to be witnesses.

meet and confer requirement in federal court

It should be noted that the subdivision does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit.

Such an expert should be treated as an ordinary witness. Subsection b 4 A deals with discovery of information obtained by or through experts who will be called as witnesses at trial. The provision is responsive to problems suggested by a relatively recent line of authorities.

Many of these cases present intricate and difficult issues as to which expert testimony is likely to be determinative. Prominent among them are food and drug, patent, and condemnation cases. Ohioaff'd. In cases of this character, a prohibition against discovery of information held by expert witnesses produces in acute form the very evils that discovery has been created to prevent.

Effective cross-examination of an expert witness requires advance preparation. The lawyer even with the help of his own experts frequently cannot anticipate the particular approach his adversary's expert will take or the data on which he will base his judgment on the stand. Similarly, effective rebuttal requires advance knowledge of the line of testimony of the other side.

If the latter is foreclosed by a rule against discovery, then the narrowing of issues and elimination of surprise which discovery normally produces are frustrated. These considerations appear to account for the broadening of discovery against experts in the cases cited where expert testimony was central to the case. In some instances, the opinions are explicit in relating expanded discovery to improved cross-examination and rebuttal at trial.

National Dairy Products Corp. On the other hand, the need for a new provision is shown by the many cases in which discovery of expert trial witnesses is needed for effective cross-examination and rebuttal, and yet courts apply the traditional doctrine and refuse disclosure.

Certain Parcels of Land, 25 F. Certain Acres, 18 F. Although the trial problems flowing from lack of discovery of expert witnesses are most acute and noteworthy when the case turns largely on experts, the same problems are encountered when a single expert testifies. Thus, subdivision b 4 A draws no line between complex and simple cases, or between cases with many experts and those with but one. It establishes by rule substantially the procedure adopted by decision of the court in Knighton v.

For a full analysis of the problem and strong recommendations to the same effect, see Friedenthal, Discovery and Use of an Adverse Party's Expert Information, 14 Stan. Past judicial restrictions on discovery of an adversary's expert, particularly as to his opinions, reflect the fear that one side will benefit unduly from the other's better preparation.

The procedure established in subsection b 4 A holds the risk to a minimum. Discovery is limited to trial witnesses, and may be obtained only at a time when the parties know who their expert witnesses will be.

A party must as a practical matter prepare his own case in advance of that time, for he can hardly hope to build his case out of his opponent's experts.

Subdivision b 4 A provides for discovery of an expert who is to testify at the trial. A party can require one who intends to use the expert to state the substance of the testimony that the expert is expected to give. The court may order further discovery, and it has ample power to regulate its timing and scope and to prevent abuse.

Ordinarily, the order for further discovery shall compensate the expert for his time, and may compensate the party who intends to use the expert for past expenses reasonably incurred in obtaining facts or opinions from the expert. Those provisions are likely to discourage abusive practices. Subdivision b 4 B deals with an expert who has been retained or specially employed by the party in anticipation of litigation or preparation for trial thus excluding an expert who is simply a general employee of the party not specially employed on the casebut who is not expected to be called as a witness.

Under its provisions, a party may discover facts known or opinions held by such an expert only on a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

Subdivision b 4 B is concerned only with experts retained or specially consulted in relation to trial preparation. Thus the subdivision precludes discovery against experts who were informally consulted in preparation for trial, but not retained or specially employed.

As an ancillary procedure, a party may on a proper showing require the other party to name experts retained or specially employed, but not those informally consulted. These new provisions of subdivision b 4 repudiate the few decisions that have held an expert's information privileged simply because of his status as an expert, e. Pennsylvania Petroleum Products Co.

See Louisell, Modern California Discovery — They also reject as ill-considered the decisions which have sought to bring expert information within the work-product doctrine. See United States v. Under subdivision b 4 Cthe court is directed or authorized to issue protective orders, including an order that the expert be paid a reasonable fee for time spent in responding to discovery, and that the party whose expert is made subject to discovery be paid a fair portion of the fees and expenses that the party incurred in obtaining information from the expert.

The court may issue the latter order as a condition of discovery, or it may delay the order until after discovery is completed. These provisions for fees and expenses meet the objection that it is unfair to permit one side to obtain without cost the benefit of an expert's work for which the other side has paid, often a substantial sum.

United Air Lines Transp. On the other hand, a party may not obtain discovery simply by offering to pay fees and expenses. In instances of discovery under subdivision b 4 Bthe court is directed to award fees and expenses to the other party, since the information is of direct value to the discovering party's preparation of his case. In ordering discovery under b 4 A iithe court has discretion whether to award fees and expenses to the other party; its decision should depend upon whether the discovering party is simply learning about the other party's case or is going beyond this to develop his own case.

Even in cases where the court is directed to issue a protective order, it may decline to do so if it finds that manifest injustice would result. Thus, the court can protect, when necessary and appropriate, the interests of an indigent party. Subdivision c —Protective Orders. The provisions of existing Rule 30 b are transferred to this subdivision cas part of the rearrangement of Rule The language has been changed to give it application to discovery generally.

The subdivision recognizes the power of the court in the district where a deposition is being taken to make protective orders. Such power is needed when the deposition is being taken far from the court where the action is pending. The court in the district where the deposition is being taken may, and frequently will, remit the deponent or party to the court where the action is pending. In addition, drafting changes are made to carry out and clarify the sense of the rule.

The courts have not given trade secrets automatic and complete immunity against disclosure, but have in each case weighed their claim to privacy against the need for disclosure. Frequently, they have been afforded a limited protection. The subdivision contains new matter relating to sanctions. When a motion for a protective order is made and the court is disposed to deny it, the court may go a step further and issue an order to provide or permit discovery.

This will bring the sanctions of Rule 37 b directly into play. Since the court has heard the contentions of all interested persons, an affirmative order is justified. In addition, the court may require the payment of expenses incurred in relation to the motion.

Subdivision d —Sequence and Priority. This new provision is concerned with the sequence in which parties may proceed with discovery and with related problems of timing. The principal effects of the new provision are first, to eliminate any fixed priority in the sequence of discovery, and second, to make clear and explicit the court's power to establish priority by an order issued in a particular case.

A priority rule developed by some courts, which confers priority on the party who first serves notice of taking a deposition, is unsatisfactory in several important respects: First, this priority rule permits a party to establish a priority running to all depositions as to which he has given earlier notice. Since he can on a given day serve notice of taking many depositions he is in a position to delay his adversary's taking of depositions for an inordinate time.

Some courts have ruled that deposition priority also permits a party to delay his answers to interrogatories and production of documents. Second, since notice is the key to priority, if both parties wish to take depositions first a race results. But the existing rules on notice of deposition create a race with runners starting from different positions.

The plaintiff may not give notice without leave of court until 20 days after commencement of the action, whereas the defendant may serve notice at any time after commencement. Thus, a careful and prompt defendant can almost always secure priority. This advantage of defendants is fortuitous, because the purpose of requiring plaintiff to wait 20 days is to afford defendant an opportunity to obtain counsel, not to confer priority.

Third, although courts have ordered a change in the normal sequence of discovery on a number of occasions, e. Discontent with the fairness of actual practice has been evinced by other observers. Comments, 59 Yale L.

Despite these difficulties, some courts have adhered to the priority rule, presumably because it provides a test which is easily understood and applied by the parties without much court intervention.

It thus permits deposition discovery to function extrajudicially, which the rules provide for and the courts desire. For these same reasons, courts are reluctant to make numerous exceptions to the rule.

The Columbia Survey makes clear that the problem of priority does not affect litigants generally. It found that most litigants do not move quickly to obtain discovery. In over half of the cases, both parties waited at least 50 days. During the first 20 days after commencement of the action—the period when defendant might assure his priority by noticing depositions—16 percent of the defendants acted to obtain discovery.

A race could not have occurred in more than 16 percent of the cases and it undoubtedly occurred in fewer. On the other hand, five times as many defendants as plaintiffs served notice of deposition during the first 19 days.

These findings do not mean, however, that the priority rule is satisfactory or that a problem of priority does not exist. The court decisions show that parties do bottle on this issue and carry their disputes to court. The statistics show that these court cases are not typical. By the same token, they reveal that more extensive exercise of judicial discretion to vary the priority will not bring a flood of litigation, and that a change in the priority rule will in fact affect only a small fraction of the cases.

It is contended by some that there is no need to alter the existing priority practice. In support, it is urged that there is no evidence that injustices in fact result from present practice and that, in any event, the courts can and do promulgate local rules, as in New York, to deal with local situations and issue orders to avoid possible injustice in particular cases. Subdivision d is based on the contrary view that the rule of priority based on notice is unsatisfactory and unfair in its operation.

One party may take a complete deposition and then the other, or, if the depositions are extensive, one party deposes for a set time, and then the other.

In principle, one party's initiation of discovery should not wait upon the other's completion, unless delay is dictated by special considerations. Clearly the principle is feasible with respect to all methods of discovery other than depositions. And the experience of the Southern District of New York shows that the principle can be applied to depositions as well.

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. A Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if: 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.

A failure described in Rule 37 d 1 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. 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.

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: A presume that the lost information was unfavorable to the party; B instruct the jury that it may or must presume the information was unfavorable to the party; or C dismiss the action or enter a default judgment.

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 fthe 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.

Notes As amended Dec. July 1, ; Apr. Notes of Advisory Committee on Rules— The provisions of this rule authorizing orders establishing facts or excluding evidence or striking pleadings, or authorizing judgments of dismissal or default, for refusal to answer questions or permit inspection or otherwise make discovery, are in accord with Hammond Packing Co.

Notes of Advisory Committee on Rules— Amendment The amendment substitutes the present statutory reference. Notes of Advisory Committee on Rules— Amendment Rule 37 provides generally for sanctions against parties or persons unjustifiably resisting discovery. Experience has brought to light a number of defects in the language of the rule as well as instances in which it is not serving the purposes for which it was designed.

In addition, changes being made in other discovery rules requiring conforming amendments to Rule Rule 37 sometimes refers to a "failure" to afford discovery and at other times to a "refusal" to do so. Taking note of this dual terminology, courts have imported into "refusal" a requirement of "willfulness.

In Societe Internationale v. Nevertheless, after the decision in Societe, the court in Hinson v. Michigan Mutual Liability Co. Substitution of "failure" for "refusal" throughout Rule 37 should eliminate this confusion and bring the rule into harmony with the Societe Internationale decision. See Rosenberg, supra, 58 Col.

Rule 37 a provides relief to a party seeking discovery against one who, with or without stated objections, fails to afford the discovery sought. It has always fully served this function in relation to depositions, but the amendments being made to Rules 33 and 34 give Rule 37 a added scope and importance. Under existing Rule 33, a party objecting to interrogatories must make a motion for court hearing on his objections.

The changes now made in Rules 33 and 37 a make it clear that the interrogating party must move to compel answers, and the motion is provided for in Rule 37 a. Existing Rule 34, since it requires a court order prior to production of documents or things or permission to enter on land, has no relation to Rule 37 a.

Amendments of Rules 34 and 37 a create a procedure similar to that provided for Rule This is a new provision making clear to which court a party may apply for an order compelling discovery.

Existing Rule 37 a refers only to the court in which the deposition is being taken; nevertheless, it has been held that the court where the action is pending has "inherent power" to compel a party deponent to answer.

In relation to Rule 33 interrogatories and Rule 34 requests for inspection, the court where the action is pending is the appropriate enforcing tribunal. The new provision eliminates the need to resort to inherent power by spelling out the respective roles of the court where the action is pending and the court where the deposition is taken.

In some instances, two courts are available to a party seeking to compel answers from a party deponent. The party seeking discovery may choose the court to which he will apply, but the court has power to remit the party to the other court as a more appropriate forum. This subdivision contains the substance of existing provisions of Rule 37 a authorizing motions to compel answers to questions put at depositions and to interrogatories. New provisions authorize motions for orders compelling designation under Rules 30 b 6 and 31 a and compelling inspection in accordance with a request made under Rule If the court denies a motion, in whole or part, it may accompany the denial with issuance of a protective order.

Compare the converse provision in Rule 26 c. This new provision makes clear that an evasive or incomplete answer is to be considered, for purposes of subdivision aa failure to answer. The courts have consistently held that they have the power to compel adequate answers. This power is recognized and incorporated into the rule.

This subdivision amends the provisions for award of expenses, including reasonable attorney's fees, to the prevailing party or person when a motion is made for an order compelling discovery. At present, an award of expenses is made only if the losing party or person is found to have acted without substantial justification. The change requires that expenses be awarded unless the conduct of the losing party or person is found to have been substantially justified.

The test of "substantial justification" remains, but the change in language is intended to encourage judges to be more alert to abuses occurring in the discovery process.

On many occasions, to be sure, the dispute over discovery between the parties is genuine, though ultimately resolved one way or the other by the court. In such cases, the losing party is substantially justified in carrying the matter to court. But the rules should deter the abuse implicit in carrying or forcing a discovery dispute to court when no genuine dispute exists. And the potential or actual imposition of expenses is virtually the sole formal sanction in the rules to deter a party from pressing to a court hearing frivolous requests for or objections to discovery.

The present provision of Rule 37 a that the court shall require payment if it finds that the defeated party acted without "substantial justification" may appear adequate, but in fact it has been little used.

Only a handful of reported cases include an award of expenses, and the Columbia Survey found that in only one instance out of about 50 motions decided under Rule 37 a did the court award expenses. It appears that the courts do not utilize the most important available sanction to deter abusive resort to the judiciary. The proposed change provides in effect that expenses should ordinarily be awarded unless a court finds that the losing party acted justifiably in carrying his point to court.

At the same time, a necessary flexibility is maintained, since the court retains the power to find that other circumstances make an award of expenses unjust—as where the prevailing party also acted unjustifiably.

The amendment does not significantly narrow the discretion of the court, but rather presses the court to address itself to abusive practices. The present provision that expenses may be imposed upon either the party or his attorney or both is unchanged. But it is not contemplated that expenses will be imposed upon the attorney merely because the party is indigent. This subdivision deals with sanctions for failure to comply with a court order. The present captions for subsections 1 and 2 entitled, "Contempt" and "Other Consequences," respectively, are confusing.

One of the consequences listed in 2 is the arrest of the party, representing the exercise of the contempt power. The contents of the subsections show that the first authorizes the sanction of contempt and no other by the court in which the deposition is taken, whereas the second subsection authorizes a variety of sanctions, including contempt, which may be imposed by the court in which the action is pending.

The captions of the subsections are changed to deflect their contents. The scope of Rule 37 b 2 is broadened by extending it to include any order "to provide or permit discovery," including orders issued under Rules 37 a and Rule 37 b 2 should provide comprehensively for enforcement of all these orders. On the other hand, the reference to Rule 34 is deleted to conform to the changed procedure in that rule. A new subsection E provides that sanctions which have been available against a party for failure to comply with an order under Rule 35 a to submit to examination will now be available against him for his failure to comply with a Rule 35 a order to produce a third person for examination, unless he shows that he is unable to produce the person.

In this context, "unable" means in effect "unable in good faith. Subdivision b 2 is amplified to provide for payment of reasonable expenses caused by the failure to obey the order.

meet and confer requirement in federal court

Although Rules 37 b 2 and 37 d have been silent as to award of expenses, courts have nevertheless ordered them on occasion. Arctic Fur Cap Corp. The provision places the burden on the disobedient party to avoid expenses by showing that his failure is justified or that special circumstances make an award of expenses unjust. Allocating the burden in this way conforms to the changed provisions as to expenses in Rule 37 aand is particularly appropriate when a court order is disobeyed.

An added reference to directors of a party is similar to a change made in subdivision d and is explained in the note to that subdivision. The added reference to persons designated by a party under Rules 30 b 6 or 31 a to testify on behalf of the party carries out the new procedure in those rules for taking a deposition of a corporation or other organization.

Rule 37 c provides a sanction for the enforcement of Rule 36 dealing with requests for admission. Rule 36 provides the mechanism whereby a party may obtain from another party in appropriate instances either 1 and admission, or 2 a sworn and specific denial, or 3 a sworn statement "setting forth in detail the reasons why he cannot truthfully admit or deny.

Instead, Rule 37 c is intended to provide posttrial relief in the form of a requirement that the party improperly refusing the admission pay the expenses of the other side in making the necessary proof at trial. Rule 37 cas now written, addresses itself in terms only to the sworn denial and is silent with respect to the statement of reasons for an inability to admit or deny. There is no apparent basis for this distinction, since the sanction provided in Rule 37 c should deter all unjustified failures to admit.

This omission in the rule has caused confused and diverse treatment in the courts. One court has held that if a party gives inadequate reasons, he should be treated before trial as having denied the request, so that Rule 37 c may apply. Another has held that the party should be treated as having admitted the request.

Still another has ordered a new response, without indicating what the outcome should be if the new response were inadequate. United States Plywood Corp. The amendment eliminates this defect in Rule 37 c by bringing within its scope all failures to admit.

Meet and Confer

Additional provisions in Rule 37 c protect a party from having to pay expenses if the request for admission was held objectionable under Rule 36 a or if the party failing to admit had reasonable ground to believe that he might prevail on the matter.

The latter provision emphasizes that the true test under Rule 37 c is not whether a party prevailed at trial but whether he acted reasonably in believing that he might prevail. The scope of subdivision d is broadened to include responses to requests for inspection under Rule 34, thereby conforming to the new procedures of Rule Two related changes are made in subdivision d: Although Rule 37 d in terms provides for only three sanctions, all rather severe, the courts have interpreted it as permitting softer sanctions than those which it sets forth.

The rule is changed to provide the greater flexibility as to sanctions which the cases show is needed. The resulting flexibility as to sanctions eliminates any need to retain the requirement that the failure to appear or respond be "willful.

Many courts have imposed sanctions without referring to willfulness. In addition, in view of the possibility of light sanctions, even a negligent failure should come within Rule 37 d. If default is caused by counsel's ignorance of Federal practice, cf. Ohioor by his preoccupation with another aspect of the case, cf. United Packinghouse Workers, 26 F.

Thus, the scheme conforms to Rule 37 b as construed by the Supreme Court in Societe Internationale v. A provision is added to make clear that a party may not properly remain completely silent even when he regards a notice to take his deposition or a set of interrogatories or requests to inspect as improper and objectionable.

If he desires not to appear or not to respond, he must apply for a protective order. The cases are divided on whether a protective order must be sought.

El Paso Natural Gas Co. Compare also Rosenberg, supra, 58 Col. The party from whom discovery is sought is afforded, through Rule 26 ca fair and effective procedure whereby he can challenge the request made. At the same time, the total non-compliance with which Rule 37 d is concerned may impose severe inconvenience or hardship on the discovering party and substantially delay the discovery process.

The failure of an officer or managing agent of a party to make discovery as required by present Rule 37 d is treated as the failure of the party. The rule as revised provides similar treatment for a director of a party. There is slight warrant for the present distinction between officers and managing agents on the one hand and directors on the other.

Although the legal power over a director to compel his making discovery may not be as great as over officers or managing agents, Campbell v.

That a director's interests are normally aligned with those of his corporation is shown by the provisions of old Rule 26 d 2transferred to 32 a 2 deposition of director of party may be used at trial by an adverse party for any purpose and of Rule 43 b director of party may be treated at trial as a hostile witness on direct examination by any adverse party. Moreover, in those rare instances when a corporation is unable through good faith efforts to compel a director to make discovery, it is unlikely that the court will impose sanctions.

The change in the caption conforms to the language of 28 U. Until recently, costs of a civil action could be awarded against the United States only when expressly provided by Act of Congress, and such provision was rarely made. To avoid any conflict with this doctrine, Rule 37 f has provided that expenses and attorney's fees may not be imposed upon the United States under Rule A major change in the law was made in80 Stat.

Costs are not to include the fees and expenses of attorneys. In light of this legislative development, Rule 37 f is amended to permit the award of expenses and fees against the United States under Rule 37, but only to the extent permitted by statute. The amendment brings Rule 37 f into line with present and future statutory provisions. New Rule 26 f provides that if a discovery conference is held, at its close the court shall enter an order respecting the subsequent conduct of discovery.

The amendment provides that the sanctions available for violation of other court orders respecting discovery are available for violation of the discovery conference order.

Subdivision e is stricken. The subdivision otherwise duplicates Rule 45 e 2. New Rule 26 f imposes a duty on parties to participate in good faith in the framing of a discovery plan by agreement upon the request of any party. This subdivision authorizes the court to award to parties who participate in good faith in an attempt to frame a discovery plan the expenses incurred in the attempt if any party or his attorney fails to participate in good faith and thereby causes additional expense.

Rule 37 authorizes the court to direct that parties or attorneys who fail to participate in good faith in the discovery process pay the expenses, including attorney's fees, incurred by other parties as a result of that failure.

Since attorneys' fees cannot ordinarily be awarded against the United States 28 U. However, in the case of a government attorney who fails to participate in good faith in discovery, nothing prevents a court in an appropriate case from giving written notification of that fact to the Attorney General of the United States and other appropriate heads of offices or agencies thereof. No substantive change is intended.

This subdivision is revised to reflect the revision of Rule 26 arequiring disclosure of matters without a discovery request. Pursuant to new subdivision a 2 Aa party dissatisfied with the disclosure made by an opposing party may under this rule move for an order to compel disclosure.

In providing for such a motion, the revised rule parallels the provisions of the former rule dealing with failures to answer particular interrogatories. Such a motion may be needed when the information to be disclosed might be helpful to the party seeking the disclosure but not to the party required to make the disclosure.

If the party required to make the disclosure would need the material to support its own contentions, the more effective enforcement of the disclosure requirement will be to exclude the evidence not disclosed, as provided in subdivision c 1 of this revised rule.

Language is included in the new paragraph and added to the subparagraph B that requires litigants to seek to resolve discovery disputes by informal means before filing a motion with the court. This requirement is based on successful experience with similar local rules of court promulgated pursuant to Rule The last sentence of paragraph 2 is moved into paragraph 4. Under revised paragraph 3evasive or incomplete disclosures and responses to interrogatories and production requests are treated as failures to disclose or respond.

Interrogatories and requests for production should not be read or interpreted in an artificially restrictive or hypertechnical manner to avoid disclosure of information fairly covered by the discovery request, and to do so is subject to appropriate sanctions under subdivision a.

Revised paragraph 4 is divided into three subparagraphs for ease of reference, and in each the phrase "after opportunity for hearing" is changed to "after affording an opportunity to be heard" to make clear that the court can consider such questions on written submissions as well as on oral hearings.

Subparagraph A is revised to cover the situation where information that should have been produced without a motion to compel is produced after the motion is filed but before it is brought on for hearing. The rule also is revised to provide that a party should not be awarded its expenses for filing a motion that could have been avoided by conferring with opposing counsel.

Subparagraph C is revised to include the provision that formerly was contained in subdivision a 2 and to include the same requirement of an opportunity to be heard that is specified in subparagraphs A and B. The revision provides a self-executing sanction for failure to make a disclosure required by Rule 26 awithout need for a motion under subdivision a 2 A.

Paragraph 1 prevents a party from using as evidence any witnesses or information that, without substantial justification, has not been disclosed as required by Rules 26 a and 26 e 1. This automatic sanction provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence, whether at a trial, at a hearing, or on a motion, such as one under Rule As disclosure of evidence offered solely for impeachment purposes is not required under those rules, this preclusion sanction likewise does not apply to that evidence.

Limiting the automatic sanction to violations "without substantial justification," coupled with the exception for violations that are "harmless," is needed to avoid unduly harsh penalties in a variety of situations: In the latter situation, however, exclusion would be proper if the requirement for disclosure had been called to the litigant's attention by either the court or another party.