Real Estate Finance Notes 10/22/04


Production of documents – Rule 34


This is the most expensive part of the discovery process.  The Rule itself, though it’s written as “the inspection of stuff”, has become more “the production of copies of documents”.  These documents include computer printouts, financial records, faxes, and electronic information (such as e-mails).  You list things that you want produced, and you can propound these requests against any party.  There is also no limit to your requests for production.  These requests are easy to propound but expensive and difficult to comply with.  The tendency is to ask broadly – to define the largest possible universe of potential documents with the hope of being able to score the best possible documents.  To request documents against a non-party, you must use a subpoena duces tecum (“show up and bring stuff with you”) under Rule 45.  You can combine this with a request to take a deposition.


This is a lawyer-driven device.  There is a tendency to interpret requests very literally and narrowly.  Unless you ask exactly the right question, you won’t get exactly the right documents.  So the plaintiff’s lawyer starts by propounding requests that will be very broad.  Then the opposing counsel objects, saying that the requests are overly broad and unduly burdensome.  A negotiation begins between the lawyers.  They try to winnow down the scope of the production by negotiation.


Alice sues the city for an alleged assault by the police.  The specific injury is to the plaintiff’s leg.  The police department has a post-accident photograph of the plaintiff at a dance contest, indicating that the injury may not be quite as severe as the plaintiff suggests.  Does the police department have to disclose the existence of this photograph under Rule 26(a)?  If they fail to disclose, they may not be able to use it at trial.  They probably have to fork over the photograph if there is a Rule 34 request for production.  If you ultimately produce the information before trial, you can argue that failing to produce it under Rule 26(a) was harmless, which could avoid sanctions.


Let’s go back to the Albert and Barbara car accident.  Say we want some documents from a mechanic.  No problem!  You use a subpoena.  Let’s say we want to have a medical exam of Barbara because she’s counterclaiming.  Is a court likely to grant a Rule 35 request for a medical exam when the other party is claiming physical injuries?  If courts will ever do this, this is the situation where they will.  Courts are generally reluctant to upset parties’ privacy by ordering such examinations.  If you get a medical exam ordered by the court and they request a copy of it, disclosure of other medical reports both before and after that one may follow.  You can’t hide behind privilege once you’ve turned over these documents.


Requests for admissions – Rule 36


You ask the other party to admit stuff.  Admissions aren’t very useful because they are drafted by lawyers and answered by lawyers.  But watch out!  Failure to answer is harmful both in Rule 37 compliance, and even worse, if you forget to answer then the matter is deemed admitted within 30 days.  Don’t forget about these things!


The intersection between Rules 37 and 26


These are both tools that may be used in certain contexts depending on whether the facts of the situation make each Rule applicable.  Rule 26(g) is kind of like a mini version of Rule 11.  There are sanctions imposed for an attorney having signed discovery requests that are “bad” for whatever reason (e.g. timeliness).  But note that Rule 11 doesn’t apply to discovery.  The typical sanction under Rule 26(g) will be the fees associated with having to respond to the request.  What if we wait until after the discovery conference, and then you think it’s still too soon?  You can use Rule 26(c) to get a protective order to try to prevent the use of the deposition because you think it’s premature.  You use Rule 37 when the other side fails to disclose something and they try to introduce it at trial.  Rule 37 says that if they failed to disclose, then they don’t get to use the person or fact in the trial.  There are more bad things in Rule 37(b)(2): facts can be deemed established, evidence can be banned, and pleadings may be struck.


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