Civ
Pro 2 Notes
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.