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The F.R.C.P. Part II Alan R. Beckman, J.D.

The F.R.C.P. Part II Alan R. Beckman, J.D. Part II: F.R.C.P. rules 26 through 53. Introduction These rules primarily address procedures relating to: Discovery and sanctions for noncompliance All trial related matters from jury selection through the verdict. F.R.C.P. rules 26 through 53.

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The F.R.C.P. Part II Alan R. Beckman, J.D.

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  1. The F.R.C.P. Part II Alan R. Beckman, J.D.

  2. Part II: F.R.C.P. rules 26 through 53 • Introduction • These rules primarily address procedures relating to: • Discovery and sanctions for noncompliance • All trial related matters from jury selection through the verdict

  3. F.R.C.P. rules 26 through 53 • Rule 26: General provisions regarding discovery…*** • This introductory rule discusses: • Initial, expert and pretrial disclosures • Limitations on discovery, including ESI • “Work product” & privilege issues • Protective orders, sequence & planning • Signing discovery • Notes: Paralegals must know all about discovery for several reasons

  4. F.R.C.P. rules 26 through 53 • Rule 27: Depositions to perpetuate testimony* • This discovery technique involves court approval to take depositions before a suit or an appeal is filed to preserve testimony • Examples involve exigent circumstances • Notes: Due process requires notice of taking to all potential parties

  5. F.R.C.P. rules 26 through 53 • Rule 28: Persons before whom depositions…* • Describes persons who take and record depositions • Notes: insures proper oaths are administered and accurate records and transcripts are produced

  6. F.R.C.P. rules 26 through 53 • Rule 29: Stipulations regarding discovery** • Allows parties to modify discovery procedures by stipulations so long as the court time frames are unaffected • Notes: paralegals should proactively seek stipulations re: discovery

  7. F.R.C.P. rules 26 through 53 • Rule 30: Depositions by oral examination*** • Provides for notice and taking of depositions up to 10 (more require stip. or order) • Addresses time restraints, costs, objections, manner of recording, written questions, witness changes and sanctions • Notes: paralegals should know how to “set up” depositions and digest a depo.

  8. F.R.C.P. rules 26 through 53 Rule 31: Depositions upon written questions* Sets forth the procedure for taking this type of deposition, when court approval is needed and the role of the officer/reporter Notes: this is used infrequently, in limited circumstances

  9. F.R.C.P. rules 26 through 53 • Rule 32: Using depositions…** • Indicates when and under what circumstances a deposition can be used in court hearings and trials • Reasons used include refresh, impeach and unavailability • Notes: this rule must be considered whenever preparing for hearing or trial and use of a depo. is needed.

  10. F.R.C.P. rules 26 through 53 Rule 33: Interrogatories…*** This major form of discovery allows written questions of opposing parties and provides form, limits (25), answering and use of records for answers Notes: techniques include broad scope; bio., facts and assets questions; and use of sets

  11. F.R.C.P. rules 26 through 53 • Rule 34: Producing documents…*** • Provides for discovery of physical information: • What is discoverable, including ESI • Contents of requests • To parties and by subpoena to non-parties • Procedure for response, 30 days • Notes: techniques include broad scope; “catch-all” request; reasonableness

  12. F.R.C.P. rules 26 through 53 Rule 35: Physical and mental examinations** When a party raises issues re: physical or mental conditions, this rule allows by order or stip. an I.M.E. with report sharing obligations Notes: used frequently in personal injury cases, not self-executing

  13. F.R.C.P. rules 26 through 53 • Rule 36: Requests for admissions*** • Parties may seek admissions to different relevant facts using and admit or deny format • Answered in 30 days • Admits are conclusive • Directed to parties • Notes: used to seek relevant commitments, focused and direct, phrasing techniques

  14. F.R.C.P. rules 26 through 53 • Rule 37: Failure to make disclosures…*** • Provides for enforcement and sanctions for noncompliance with discovery • Two step process (compel and sanctions) • Broad remedies including costs, suppression, default, dismissal, etc. • Notes: used to seek remedies when a party fails or refuses to provide discovery

  15. F.R.C.P. rules 26 through 53 • Rule 38: Right to jury trial…* • Rule recognizes the right to trial by jury in civil actions generally upon the condition: • A timely written demand is made • Waivers require parties’ consent • No demand results in waiver • Notes: paralegals often draft demands, two methods for demands

  16. F.R.C.P. rules 26 through 53 • Rule 39: Trial by jury or by the Court* • Rarely used rule essentially indicating trial is to the court unless: • Demand is made AND the issues are triable to jury (Not equitable actions) • Note that demands for certain actions can be stricken • Notes: attorneys make decisions here, so, no worries for you in this rule!

  17. F.R.C.P. rules 26 through 53 Rule 40: Scheduling…* Short rule setting priority in scheduling trials based upon statutes Notes: attorneys make decisions here, so, no worries again for you in this rule!

  18. F.R.C.P. rules 26 through 53 • Rule 41: Dismissal of actions** • Provides procedures for: • Voluntary and involuntary dismissals • Examples • Dismissals without prejudice unless based upon want of prosecution • Notes: paralegals need to track case progress to insure prosecution occurs

  19. F.R.C.P. rules 26 through 53 • Rule 42: Consolidation; • Separate trials ** • Provides procedures for trials to be combined or severed based on: • Commonality – consolidated • Prejudice, efficiency - severed • Notes: paralegals may draft motions under this rule

  20. F.R.C.P. rules 26 through 53 Rule 43: Taking testimony* Short rule simply describing ways testimony is allowed and requiring the court to only consider fact based testimony in some sworn format Notes: paralegals use this to prepare for hearings and trials, especially in deciding whether affidavits are needed for motions

  21. F.R.C.P. rules 26 through 53 Rule 44.1: Determining foreign law* Sets forth the requirements for proving foreign law through any relevant and material source, e.g., proving a French statute with a copy of the statute from a government publication Notes: paralegals use this to prepare for hearings and trials and seek stipulations re: records (also judicial notice may occur)

  22. F.R.C.P. rules 26 through 53 • Rule 45: Subpoena** • Sets forth the requirements for subpoenas: • Contents • How served • Protection, quashing & modifying • Responding • Notes: consult for subpoena related issues for ad testificandum and duces tecum

  23. F.R.C.P. rules 26 through 53 Rule 46: Objecting…* Discusses objections by eliminating formal exceptions and not requiring objections when there was no opportunity to make one Notes: only real significance pertains to appellate issues in the record

  24. F.R.C.P. rules 26 through 53 Rule 47: Selection of jurors* Discusses questioning (voir dire) by court and by counsel, peremptory and cause challenges Notes: only real significance pertains to appellate points of error

  25. F.R.C.P. rules 26 through 53 Rule 48: Numbers of jurors…* Discusses the number of jurors as from 6 to 12, according to law, returning a verdict by at least 6 and polling jurors Notes: only real significance pertains to appellate points of error

  26. F.R.C.P. rules 26 through 53 Rule 49: Special verdicts etc….** Discusses questions to the jury in special and in general verdicts and the effect of inconsistent answers on the verdict Notes: paralegals often prepare these questions/interrogatories relating to elements and issues re: claims

  27. F.R.C.P. rules 26 through 53 Rule 50: Judgment as a matter of law…** Combines motions for directed verdicts and for judgment n.o.v. and when granted, permits motions for a new trial to be considered. Tests the sufficiency of the evidence a/k/a a “prima facie” case Notes: appellate points of error, primarily

  28. F.R.C.P. rules 26 through 53 • Rule 51: Instructions to the jury…** • Sets forth the procedure for: • Submitting instructions before and after the evidence closes • Making objections to preserve the record • Notes: allows for appellate points of error, primarily

  29. F.R.C.P. rules 26 through 53 Rule 52: Findings and conclusions by the Court…* Describes the process for rendering a verdict in a nonjury trial wherein the court must make specific findings of fact and conclusions of law on each issue raised Notes: allows for appellate points of error, primarily

  30. F.R.C.P. rules 26 through 53 Rule 53: Masters Describes when and how a master can be appointed, what their authority is and how their reports/orders are issued (contents and review) Notes: assists courts in the timely handling of fact finding and damages determinations, among other matters

  31. Class two Quizzers • NAME THAT RULE quiz: correctly answer the following: “What rule applies to…” • Depositions prior to filing suit_______ • Sanctions re: discovery_______ • Jury demand requirement_______ • Dismissal of suits due to inactivity______ • Quashing a subpoena_______ • Selecting (voir dire) a jury_______ • Signing discovery_______ • Jury instructions_______

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