Civ Pro 2 Notes 10/21/04


Interrogatories and depositions – Rules 30 and 33


Interrogatories are lists of questions that can be submitted to other parties to the lawsuit only.  The other side’s lawyer will help them answer.  You’re limited to only 25 questions, including discrete sub-parts.  This limitation is a response to what was seen as an abuse of the process.  Interrogatories are cheaper than depositions.  It’s pretty easy to write questions and send them to the other side.  But these are also less useful: the questions are crafted by lawyers and answered by other lawyers.  As a result, you “game away” any possible use of the device.


Depositions, on the other hand, are live questioning.  Here, you have the chance to follow-up.  Depositions can be used against any person, not just a party to the lawsuit.  These are limited to ten per side, and seven hours per deposition.  You can have a full day of deposition of up to ten people.  But how do you determine “per side” when there are co-plaintiffs or co-defendants?  That can vary case-by-case.  These are more expensive than interrogatories.  They are more costly in terms of time (and consequently, money, in the form of legal fees).  But depositions are very useful!  You never know what people might say!  Rule 31 also offers depositions upon written questions, but these aren’t very useful because they count towards the ten depositions yet don’t allow for follow-ups.


Let’s say there is a toaster accident, and we’re going to sue the manufacturer for product liability.  We serve 55 interrogatories against the manufacturer and 20 against the store that sold it.  What’s the problem with the store?  You can’t ask them interrogatories because they’re not party to the lawsuit.  And the interrogatories against the manufacturer are too numerous to be allowed.  But discovery rules can be modified by court order under Rule 26(b)(2).  So we can ask the court to let us have more interrogatories!  But we have to prove to the court why the case is so special that we should be given more interrogatories.


Do you have to give a specific name of a person from whom you want to take a deposition?  Not necessarily.  We’re doing discovery because we’re trying to discover stuff.  You can ask for depositions based on “descriptors” under Rule 30(b).  You can say that you want information from a corporation about certain stuff, and then the corporation sends someone who is competent to testify about that thing.  There is a lot of strategy here.  You want to offer up someone who can testify but who is as ignorant as possible.  You never want to offer up the CEO or president.  They know lots of things, and most importantly, they’re less easily managed by attorneys.


Let’s say we ask the designer of the toaster what his qualifications are as well as the financial structure of the corporation.  The corporation’s lawyer instructs him not to answer as to the financial structure questions.  Can the lawyer do that?  The rules of discovery don’t limit what you can ask in a deposition.  This is a typical battle.  The lawyer cannot tell the guy not to answer except when one of several things is true under Rule 30.  You could try to claim that the question is not relevant because it’s outside the scope.  But that doesn’t prevent the client from having to answer.  They still do have to answer.  But your objection is preserved for trial.  If you screw around during a deposition, sanctions could be in your future.  What if the lawyer objects for seven hours straight?  What if you want to continue, but the corporate counsel says no?  How do we deal with this?  We would have to invoke Rule 30(d)(2), which lets the court grant additional time.   You can’t ask questions about the person said to their lawyer.


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