Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fedr/frcp2.asc

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/* We continue with the Federal Rules of Civil Procedure.*/

(b) When Plaintiff May Bring in Third Party. When a counterclaim
is asserted against a plaintiff, the plaintiff may cause a third
party to be brought in under circumstances which under this rule
would entitle a defendant to do so.

(c) Admiralty and Maritime Claims. When a plaintiff asserts an
admiralty or maritime claim within the meaning of Rule 9(h), the
defendant or claimant, as a third-party plaintiff, may bring in a
third-party defendant who may be wholly or partly liable, either
to the plaintiff or to the third-party plaintiff, by way of
remedy over, contribution, or otherwise on account of the same
transaction, occurrence, or series of transactions or
occurrences.  In such a case the third-party plaintiff may also
demand judgment against the third-party defendant in favor of the
plaintiff, in which event the third-party defendant shall make
any defenses to the claim of the plaintiff as well as to that of
the third-party plaintiff in the manner provided in Rule 12 and
the action shall proceed as if the plaintiff had commenced it
against the third-party defendant as well as the third-party
plaintiff.


RULE 15. AMENDED AND SUPPLEMENTAL PLEADINGS

(a) Amendments. A party may amend the party's pleading once as a
matter of course at any time before a responsive pleading is
served or, if the pleading is one to which no responsive pleading
is permitted and the action has not been placed upon the trial
calendar, the party may so amend it at any time within 20 days
after it is served. Otherwise a party may amend the party's
pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so
requires. A party shall plead in response to an amended pleading
within the time remaining for response to the original pleading
or within 10 days after service of the amended pleading,
whichever period may be the longer, unless the court otherwise
orders.

(b) Amendments to Conform to the Evidence. When issues not raised
by the pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had
been raised in the pleadings. Such amendment of the pleadings as
may be necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at any
time, even after judgment; but failure so to amend does not
affect the result of the trial of these issues. If evidence is
objected to at the trial on the ground that it is not within the
issues made by the pleadings, the court may allow the pleadings
to be amended and shall do so freely when the presentation of the
merits of the action will be subserved thereby and the objecting
party fails to satisfy the court that the admission of such
evidence would prejudice the party in maintaining the party's
action or defense upon the merits. The court may grant a
continuance to enable the objecting party to meet such evidence.


(c) Relation Back of Amendments. An amendment of a pleading
relates back to the date of the original pleading when

(1) relation back is permitted by the law that provides the
statute of limitations applicable to the action, or

(2) the claim or defense asserted in the amended pleading arose
out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, or

(3) the amendment changes the party or the naming of the party
against whom a claim is asserted if the foregoing provision (2)
is satisfied and, within the period provided by Rule 4(m) for
service of the summons and complaint, the party to be brought in
by amendment (A) has received such notice of the institution of
the action that the party will not be prejudiced in maintaining a
defense on the merits, and (B) knew or should have known that,
but for a mistake concerning the identity of the proper party,
the action would have been brought against the party.

The delivery or mailing of process to the United States Attorney,
or United States Attorney's designee, or the Attorney General of
the United States, or an agency or officer who would have been a
proper defendant if named, satisfies the requirement of
subparagraphs (A) and (B) of this paragraph (3) with respect to
the United States or any agency or officer thereof to be brought
into the action as a defendant.

(d) Supplemental Pleadings. Upon motion of a party the court may,
upon reasonable notice and upon such terms as are just, permit
the party to serve a supplemental pleading setting forth
transactions or occurrences or events which have happened since
the date of the pleading sought to be supplemented. Permission
may be granted even though the original pleading is defective in
its statement of a claim for relief or defense. If the court
deems it advisable that the adverse party plead to the
supplemental pleading, it shall so order, specifying the time
therefor.

Note. Amended April 30, 1991, effective December 1, 1991.


RULE 16. PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT

(a) Pretrial Conferences; Objectives. In any action, the court
may in its discretion direct the attorneys for the parties and
any unrepresented parties to appear before it for a conference or
conferences before trial for such purposes as

(1) expediting the disposition of the action;

(2) establishing early and continuing control so that the case
will not be protracted because of lack of management;

(3) discouraging wasteful pretrial activities;

(4) improving the quality of the trial through more thorough
preparation, and;

(5) facilitating the settlement of the case.

(b) Scheduling and Planning. Except in categories of actions
exempted by district court rule as inappropriate, the judge, or a
magistrate when authorized by district court rule, shall, after
consulting with the attorneys for the parties and any
unrepresented parties, by a scheduling conference, telephone,
mail, or other suitable means, enter a scheduling order that
limits the time

(1) to join other parties and to amend the pleadings;

(2) to file and hear motions; and

(3) to complete discovery.

The scheduling order also may include

(4) the date or dates for conferences before trial, a final
pretrial conference, and trial; and

(5) any other matters appropriate in the circumstances of the
case.

The order shall issue as soon as practicable but in no event more
than 120 days after filing of the complaint. A schedule shall not
be modified except by leave of the judge or a magistrate when
authorized by district court rule upon a showing of good cause.

(c) Subjects to be Discussed at Pretrial Conferences. The
participants at any conference under this rule may consider and
take action with respect to

(1) the formulation and simplification of the issues, including
the elimination of frivolous claims or defenses;

(2) the necessity or desirability of amendments to the pleadings;

(3) the possibility of obtaining admissions of fact and of
documents which will avoid unnecessary proof, stipulations
regarding the authenticity of documents, and advance rulings from
the court on the admissibility of evidence;

(4) the avoidance of unnecessary proof and of cumulative
evidence;

(5) the identification of witnesses and documents, the need and
schedule for filing and exchanging pretrial briefs, and the date
or dates for further conferences and for trial;

(6)  the advisability of referring matters to a magistrate or
master;

(7) the possibility of settlement or the use of extrajudicial
procedures to resolve the dispute;

(8) the form and substance of the pretrial order;

(9) the disposition of pending motions;

(10) the need for adopting special procedures for managing
potentially difficult or protracted actions that may involve
complex issues, multiple parties, difficult legal questions, or
unusual proof problems; and

(11) such other matters as may aid in the disposition of the
action.

At least one of the attorneys for each party participating in any
conference before trial shall have authority to enter into
stipulations and to make admissions regarding all matters that
the participants may reasonably anticipate may be discussed.

(d) Final Pretrial Conference. Any final pretrial conference
shall be held as close to the time of trial as reasonable under
the circumstances. The participants at any such conference shall
formulate a plan for trial, including a program for facilitating
the admission of evidence. The conference shall be attended by at
least one of the attorneys who will conduct the trial for each of
the parties and by any unrepresented parties.

(e) Pretrial Orders. After any conference held pursuant to this
rule, an order shall be entered reciting the action taken. This
order shall control the subsequent course of the action unless
modified by a subsequent order. The order following a final
pretrial conference shall be modified only to prevent manifest
injustice.

(f) Sanctions. If a party or party's attorney fails to obey a
scheduling or pretrial order, or if no appearance is made on
behalf of a party at a scheduling or pretrial conference, or if a
party or party's attorney is substantially unprepared to
participate in the conference, or if a party or party's attorney
fails to participate in good faith, the judge, upon motion or the
judge's own initiative, may make such orders with regard thereto
as are just, and among others any of the orders provided in Rule
37(b)(2)(B), (C), (D). In lieu of or in addition to any other
sanction, the judge shall require the party or the attorney
representing the party or both to pay the reasonable expenses
incurred because of any noncompliance with this rule, including
attorney's fees, unless the judge finds that the noncompliance
was substantially justified or that other circumstances make an
award of expenses unjust.


IV.    PARTIES


RULE 17. PARTIES PLAINTIFF AND DEFENDANT; CAPACITY

(a) Real Party in Interest. Every action shall be prosecuted in
the name of the real party in interest. An executor,
administrator, guardian, bailee, trustee of an express trust, a
party with whom or in whose name a contract has been made for the
benefit of another, or a party authorized by statute may sue in
that person's own name without joining the party for whose
benefit the action is brought; and when a statute of the United
States so provides, an action for the use or benefit of another
shall be brought in the name of the United States. No action
shall be dismissed on the ground that it is not prosecuted in the
name of the real party in interest until a reasonable time has
been allowed after objection for ratification of commencement of
the action by, or joinder or substitution of, the real party in
interest; and such ratification, joinder, or substitution shall
have the same effect as if the action had been commenced in the
name of the real party in interest.

(b) Capacity to Sue or be Sued. The capacity of an individual,
other than one acting in a representative capacity, to sue or be
sued shall be determined by the law of the individual's domicile.
The capacity of a corporation to sue or be sued shall be
determined by the law under which it was organized. In all other
cases capacity to sue or be sued shall be determined by the law
of the state in which the district court is held, except (1) that
a partnership or other unincorporated association, which has no
such capacity by the law of such state, may sue or be sued in its
common name for the purpose of enforcing for or against it a
substantive right existing under the Constitution or laws of the
United States, and (2) that the capacity of a receiver appointed
by a court of the United States to sue or be sued in a court of
the United States is governed by Title 28, U.S.C. [sec.] 754 and
959(a).

(c) Infants or Incompetent Persons. Whenever an infant or
incompetent person has a representative, such as a general
guardian, committee, conservator, or other like fiduciary, the
representative may sue or defend on behalf of the infant or
incompetent person. An infant or incompetent person who does not
have a duly appointed representative may sue by next friend or by
a guardian ad litem. The court shall appoint a guardian ad litem
for an infant or incompetent person not otherwise represented in
an action or shall make such other order as it deems proper for
the protection of the infant or incompetent person.


RULE 18. JOINDER OF CLAIMS AND REMEDIES

(a) Joinder of Claims. A party asserting a claim to relief as an
original claim, counterclaim, cross-claim, or third-party claim,
may join, either as independent or as alternate claims, as many
claims, legal, equitable, or maritime, as the party has against
an opposing party.

(b) Joinder of Remedies; Fraudulent Conveyances. Whenever a claim
is one heretofore cognizable only after another claim has been
prosecuted to a conclusion, the two claims may be joined in a
single action; but the court shall grant relief in that action
only in accordance with the relative substantive rights of the
parties.  In particular, a plaintiff may state a claim for money
and a claim to have set aside a conveyance fraudulent as to that
plaintiff,without first having obtained a judgment establishing
the claim for money.


RULE 19. JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION

(a) Persons to be Joined if Feasible. A person who is subject to
service of process and whose joinder will not deprive the court
of jurisdiction over the subject matter of the action shall be
joined as a party in the action if (1) in the person's absence
complete relief cannot be accorded among those already parties,
or (2) the person claims an interest relating to the subject of
the action and is so situated that the disposition of the action
in the person's absence may (i) as a practical matter impair or
impede the person's ability to protect that interest or (ii)
leave any of the persons already parties subject to a substantial
risk of incurring double, multiple, or otherwise inconsistent
obligations by reason of the claimed interest. If the person has
not been so joined, the court shall order that the person be made
a party. If the person should join as a plaintiff but refuses to
do so, the person may be made a defendant, or, in a proper case,
an involuntary plaintiff. If the joined party objects to venue
and joinder of that party would render the venue of the action
improper, that party shall be  dismissed from the action.

(b) Determination by Court Whenever Joinder not Feasible. If a
person as described in subdivision (a)(1)-(2) hereof cannot be
made a party, the court shall determine whether in equity and
good conscience the action should proceed among the parties
before it, or should be dismissed, the absent person being thus
regarded as indispensable. The factors to be considered by the
court include:  first, to what extent a judgment rendered in the
person's absence might be prejudicial to the person or those
already parties; second, the extent to which, by protective
provisions in the judgment, by the shaping of relief, or other
measures, the prejudice can be lessened or avoided; third,
whether a judgment rendered in the person's absence will be
adequate; fourth, whether the plaintiff will have an adequate
remedy if the action is dismissed for nonjoinder.

(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim
for relief shall state the names, if known to the pleader, of any
persons as described in subdivision (a)(1)-(2) hereof who are not
joined, and the reasons why they are not joined.

(d) Exception of Class Actions. This rule is subject to the
provisions of Rule 23.


RULE 20. PERMISSIVE JOINDER OF PARTIES

(a) Permissive Joinder. All persons may join in one action as
plaintiffs if they assert any right to relief jointly, severally,
or in the alternative in respect of or arising out of the same
transaction, occurrence, or series of transactions or occurrences
and if any question of law or fact common to all these persons
will arise in the action. All persons (and any vessel, cargo or
other property subject to admiralty process in rem) may be joined
in one action as defendants if there is asserted against them
jointly, severally, or in the alternative, any right to relief in
respect of or arising out of the same transaction, occurrence, or
series of transactions or occurrences and if any question of law
or fact common to all defendants will arise in the action. A
plaintiff or defendant need not be interested in obtaining or
defending against all the relief demanded. Judgment may be given
for one or more of the plaintiff's according to their respective
rights to relief, and against one or more defendants according to
their respective
liabilities.

(b) Separate Trials. The court may make such orders as will
prevent a party from being embarrassed, delayed, or put to
expense by the inclusion of a party against whom the party
asserts no claim and who asserts no claim against the party, and
may order separate trials or make other orders to prevent delay
or prejudice.


RULE 21. MISJOINDER AND NON-JOINDER OF PARTIES

Misjoinder of parties is not ground for dismissal of an action.
Parties may be dropped or added by order of the court on motion
of any party or of its own initiative at any stage of the action
and on such terms as are just. Any claim against a party may be
severed and proceeded with separately.


RULE 22. INTERPLEADER

(1)  Persons having claims against the plaintiff may be joined as
defendants and required to interplead when their claims are such
that the plaintiff is or may be exposed to double or multiple
liability. It is not ground for objection to the joinder that the
claims of the several claimants or the titles on which their
claims depend do not have a common origin or are not identical
but are adverse to and independent of one another, or that the
plaintiff avers that the plaintiff is not liable in whole or in
part to any or all of the claimants. A defendant exposed to
similar liability may obtain such interpleader by way of
cross-claim or counterclaim.  The provisions of this rule
supplement and do not in any way limit the joinder of parties
permitted in Rule 20.

(2) The remedy herein provided is in addition to and in no way
supersedes or limits the remedy provided by Title 28, U.S.C.
[sec.]  1335, 1397, and 2361. Actions under those provisions
shall be  conducted in accordance with these rules.


RULE 23. CLASS ACTIONS

(a) Prerequisites to a Class Action. One or more members of a
class may sue or be sued as representative parties on behalf of
all only if (1) the class is so numerous that joinder of all
members is impracticable, (2) there are questions of law or fact
common to the class, (3) the claims or defenses of the
representative parties are typical of the claims or defenses of
the class, and (4) the representative parties will fairly and
adequately protect the interests of the class.

(b) Class Actions Maintainable. An action may be maintained as a
class action if the prerequisites of subdivision (a) are
satisfied, and in addition:

(1) the prosecution of separate actions by or against individual
members of the class would create a risk of

(A) inconsistent or varying adjudications with respect to
individual members of the class which would establish
incompatible standards of conduct for the party opposing the
class, or

(B) adjudications with respect to individual members of the class
which would as a practical matter be dispositive of the interests
of the other members not parties to the adjudications or
substantially impair or impede their ability to protect their
interests; or

(2) the party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding declaratory
relief with respect to the class as a whole; or

(3) the court finds that the questions of law or fact common to
the members of the class predominate over any questions affecting
only individual members, and that a class action is superior to
other available methods for the fair and efficient adjudication
of the controversy. The matters pertinent to the findings
include: (A) the interest of members of the class in individually
controlling the prosecution or defense of separate actions; (B)
the extent and nature of any litigation concerning the
controversy already commenced by or against members of the class;
(C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; (D) the
difficulties likely to be encountered in the management of a
class action.

(c) Determination by Order Whether Class Action to be Maintained;
Notice; Judgment; Actions Conducted Partially as Class Actions.

(1) As soon as practicable after the commencement of an action
brought as a class action, the court shall determine by order
whether it is to be so maintained. An order under this
subdivision may be conditional, and may be altered or amended
before the decision on the merits.

(2) In any class action maintained under subdivision (b)(3), the
court shall direct to the members of the class the best notice
practicable under the circumstances, including individual notice
to all members who can be identified through reasonable effort.
The  notice shall advise each member that (A) the court will
exclude the member from the class if the member so requests by a
specified date; (B) the judgment, whether favorable or not, will
include all members who do not request exclusion; and (C) any
member who does not request exclusion may, if the member desires,
enter an appearance through counsel.

(3) The judgment in an action maintained as a class action under
subdivision (b)(1) or (b)(2), whether or not favorable to the
class, shall include and describe those whom the court finds to
be members of the class. The judgment in an action maintained as
a class action under subdivision (b)(3), whether or not favorable
to the class, shall include and specify or describe those to whom
the notice provided in subdivision (c)(2) was directed, and who
have not requested exclusion, and whom the court finds to be
members of the class.

(4) When appropriate (A) an action may be brought or maintained
as a class action with respect to particular issues, or (B) a
class may be divided into subclasses and each subclass treated as
a class, and the provisions of this rule shall then be construed
and applied accordingly.

(d) Orders in Conduct of Actions. In the conduct of actions to
which this rule applies, the court may make appropriate orders:
(1) determining the course of proceedings or prescribing measures
to prevent undue repetition or complication in the presentation
of evidence or argument; (2) requiring, for the protection of the
members of the class or otherwise for the fair conduct of the
action, that notice be given in such manner as the court may
direct to some or all of the members of any step in the action,
or of the proposed extent of the judgment, or of the opportunity
of members to signify whether they consider the representation
fair and adequate, to intervene and present claims or defenses,
or otherwise to come into the action; (3) imposing conditions on
the representative parties or on intervenors; (4) requiring that
the pleadings be amended to eliminate therefrom allegations as to
representation of absent persons, and that the action proceed
accordingly; (5) dealing with similar procedural matters. The
orders may be combined with an order under Rule 16, and may be
altered or amended as may be desirable from time to time.

(e) Dismissal or Compromise. A class action shall not be
dismissed or compromised without the approval of the court, and
notice of the proposed dismissal or compromise shall be given to
all members of the class in such manner as the court directs.


RULE 23.1. DERIVATIVE ACTIONS BY SHAREHOLDERS

In a derivative action brought by one or more shareholders or
members to enforce a right of a corporation or of an
unincorporated association, the corporation or association having
failed to enforce a right which may properly be asserted by it,
the complaint shall be verified and shall allege (1) that the
plaintiff was a shareholder or member at the time of the
transaction of which the plaintiff complains or that the
plaintiff's share or membership thereafter devolved on the
plaintiff by operation of law, and (2) that the action is not a
collusive one to confer jurisdiction on a court of the United
States which it would not otherwise have. The complaint shall
also allege with particularity the efforts, if any, made by the
plaintiff to obtain the action the plaintiff desires
from the directors or comparable authority and, if necessary,
from the shareholders or members, and the reasons for the
plaintiff's failure to obtain the action or for not making the
effort. The derivative action may not be maintained if it appears
that the plaintiff does not fairly and adequately represent the
interests of the shareholders or members similarly situated in
enforcing the right of the corporation or association. The action
shall not be dismissed or compromised without the approval of the
court, and notice of the proposed dismissal or compromise shall
be given to shareholders or members in such manner as the court
directs.


RULE 23.2. ACTIONS RELATING TO UNINCORPORATED ASSOCIATIONS

An action brought by or against the members of an unincorporated
association as a class by naming certain members as
representative parties may be maintained only if it appears that
the representative parties will fairly and adequately protect the
interests of the association and its members. In the conduct of
the action the court may make appropriate orders corresponding
with those described in Rule 23(d), and the procedure for
dismissal or compromise of the action shall correspond with that
provided in Rule 23(e).


RULE 24. INTERVENTION

(a) Intervention of Right. Upon timely application anyone shall
be permitted to intervene in an action: (1) when a statute of the
United States confers an unconditional right to intervene; or (2)
when the applicant claims an interest relating to the property or
transaction which is the subject of the action and the applicant
is so situated that the disposition of the action may as a
practical matter impair or impede the applicant's ability to
protect that interest, unless the applicant's interest is
adequately represented by existing parties.

(b) Permissive Intervention. Upon timely application anyone may
be permitted to intervene in an action: (1) when a statute of the
United States confers a conditional right to intervene; or (2)
when an applicant's claim or defense and the main action have a
question of law or fact in common. When a party to an action
relies for ground of claim or defense upon any statute or
executive order administered by a federal or state governmental
officer or agency or upon any regulation, order, requirement or
agreement issued or made pursuant to the statute or executive
order, the officer or agency upon timely application may be
permitted to intervene in the action. In exercising its
discretion the court shall consider whether the intervention will
unduly delay or prejudice the adjudication of the rights of the
original parties.

(c) Procedure. A person desiring to intervene shall serve a
motion to intervene upon the parties as provided in Rule 5. The
motion shall state the grounds therefor and shall be accompanied
by a pleading setting forth the claim or defense for which
intervention is sought. The same procedure shall be followed when
a statute of the United States gives a right to intervene. When
the constitutionality of an act of Congress affecting the public
interest is drawn in question in any action in which the United
States or an officer, agency, or employee thereof is not a party,
the court shall notify the Attorney General of the United States
as provided in Title 28, U.S.C. [sec.] 2403. When the
constitutionality of any statute of a State affecting the public
interest is drawn in question in any action in which that State
or any agency, officer, or employee thereof is not a party, the
court shall notify the attorney general of the State as provided
in Title 28, U.S.C. [sec.] 2403. A party challenging the
constitutionality of legislation should call the attention of the
court to its consequential duty, but failure to do so is not a
waiver of any constitutional right otherwise timely asserted.

Note. Amended April 30, 1991, effective December 1, 1991.


RULE 25. SUBSTITUTION OF PARTIES

(a)    Death.

(1) If a party dies and the claim is not thereby extinguished,
the court may order substitution of the proper parties. The
motion for substitution may be made by any party or by the
successors or representatives of the deceased party and, together
with the notice of hearing, shall be served on the parties as
provided in Rule 5 and upon persons not parties in the manner
provided in Rule 4 for the service of a summons, and may be
served in any judicial district. Unless the motion for
substitution is made not later than 90 days after the death is
suggested upon the record by service of a statement of the fact
of the death as provided herein for the service of the motion,
the action shall be dismissed as to the deceased party.

(2) In the event of the death of one or more of the plaintiffs or
of one or more of the defendants in an action in which the right
sought to be enforced survives only to the surviving plaintiffs
or only against the surviving defendants, the action does not
abate.  The death shall be suggested upon the record and the
action shall proceed in favor of or against the surviving
parties.

(b) Incompetency. If a party becomes incompetent, the court upon
motion served as provided in subdivision (a) of this rule may
allow the action to be continued by or against the party's
representative.

(c) Transfer of Interest. In case of any transfer of interest,
the action may be continued by or against the original party,
unless the court upon motion directs the person to whom the
interest is transferred to be substituted in the action or joined
with the original party. Service of the motion shall be made as
provided in subdivision (a) of this rule.

(d) Public Officers; Death or Separation from Office.

(1) When a public officer is a party to an action in an official
capacity and during its pendency dies, resigns, or otherwise
ceases to hold office, the action does not abate and the
officer's successor is automatically substituted as a party.
Proceedings following the substitution shall be in the name of
the substituted party, but any misnomer not affecting the
substantial rights of the parties shall be disregarded. An order
of substitution may be entered at any time, but the omission to
enter such an order shall not affect the substitution.

(2) A public officer who sues or is sued in an official capacity
may be described as a party by the officer's official title
rather than by name; but the court may require the officer's name
to be added.


V. DEPOSITIONS AND DISCOVERY


RULE 26. GENERAL PROVISIONS GOVERNING DISCOVERY

(a) Discovery Methods. Parties may obtain discovery by one or
more of the following methods: depositions upon oral examination
or written questions; written interrogatories; production of
documents or things or permission to enter upon land or other
property, for inspection and other purposes; physical and mental
examinations; and requests for admission.

/* As provided within these rules, District Courts may make rules
applicable within their district. Discovery is one of the areas
in which local rules often provide for procedures quite different
than those mentioned in the FRCP. */

(b) Discovery Scope and Limits. Unless otherwise limited by order
of the court in accordance with these rules, the scope of
discovery is as follows:

(1) In General. Parties may obtain discovery regarding any
matter, not privileged, which is relevant to the subject matter
involved in the pending action, whether it relates to the claim
or defense of the party seeking discovery or to the claim or
defense of any other party, including the existence, description,
nature, custody, condition and location of any books, documents,
or other tangible things and the identity and location of persons
having knowledge of any discoverable matter. It is not ground for
objection that the information sought will be inadmissible at the
trial if the information sought appears reasonably calculated to
lead to the discovery of admissible evidence.

The frequency or extent of use of the discovery methods set forth
in subdivision (a) shall be limited by the court if it determines
that: (i) the discovery sought is unreasonably cumulative or
duplicative, or is obtainable from some other source that is more
convenient, less burdensome, or less expensive; (ii) the party
seeking discovery has had ample opportunity by discovery in the
action to obtain the information sought; or (iii) the discovery
is unduly burdensome or expensive, taking into account the needs
of the case, the amount in controversy, limitations on the
parties' resources, and the importance of the issues at stake in
the litigation. The court may act upon its own initiative after
reasonable notice or pursuant to a motion under subdivision (c).

(2) Insurance Agreements. A party may obtain discovery of the
existence and contents of any insurance agreement under which any
person carrying on an insurance business may be liable to satisfy
part or all of a judgment which may be entered in the action or
to indemnify or reimburse for payments made to satisfy the
judgment.  Information concerning the insurance agreement is not
by reason of disclosure admissible in evidence at trial. For
purposes of this paragraph, an application for insurance shall
not be treated as part of an insurance agreement.

/* So that the parties know insurance limits as quickly as
possible and the "demand for limits" game can begin. */


(3) Trial Preparation: Materials. Subject to the provisions of
subdivision (b)(4) of this rule, a party may obtain discovery of
documents and tangible things otherwise discoverable under
subdivision (b)(1) of this rule and prepared in anticipation of
litigation or for the trial by or for another party or by or for
that other party's representative (including the other party's
attorney, consultant, surety, indemnitor, insurer, or agent) only
upon a showing that the party seeking discovery has substantial
need of the materials in the preparation of the party's case and
that the party is unable without undue hardship to obtain the
substantial equivalent of the materials by other means. In
ordering discovery of such materials when the required showing
has been made, the court shall protect against disclosure of the
mental impressions, conclusions, opinions, or legal theories of
an attorney or other representative of a party concerning the
litigation.

A party may obtain without the required showing a statement
concerning the action or its subject matter previously made by
that party. Upon request, a person not a party may obtain without
the required showing a statement concerning the action or its
subject matter previously made by that person. If the request is
refused, the person may move for a court order. The provisions of
Rule  37(a)(4) apply to the award of expenses incurred in
relation to the motion. For purposes of this paragraph, a
statement previously made is (A) a written statement signed or
otherwise adopted or approved by the person making it, or (B) a
stenographic, mechanical, electrical, or other recording, or a
transcription thereof, which is a substantially verbatim recital
of an oral statement by the person making it and
contemporaneously recorded.

(4) Trial Preparation: Experts. Discovery of facts known and
opinions held by experts, otherwise discoverable under the
provisions of subdivision (b)(1) of this rule and acquired or
developed in anticipation of litigation or for trial, may be
obtained only as follows:

(A)(i) A party may through interrogatories require any other
party to identify each person whom the other party expects to
call as an expert witness at trial, to state the subject matter
on which the expert is expected to testify, and to state the
substance of the facts and opinions to which the expert is
expected to testify and a summary of the grounds for each
opinion. (ii) Upon motion, the court may order further discovery
by other means, subject to such restrictions as to scope and such
provisions, pursuant to subdivision (b)(4)(C) of this rule,
concerning fees and expenses as the court may deem appropriate.

(B) A party may discover facts known or opinions held by an
expert who has been retained or specially employed by another
party in anticipation of litigation or preparation for trial and
who is not expected to be called as a witness at trial, only as
provided in Rule 35(b) or upon 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.

(C) Unless manifest injustice would result, (i) the court shall
require that the party seeking discovery pay the expert a
reasonable fee for time spent in responding to discovery under
subdivisions (b)(4)(A)(ii) and (b)(4)(B) of this rule; and (ii)
with respect to discovery obtained under subdivision
(b)(4)(A)(ii) of this rule the court may require, and with
respect to discovery obtained under subdivision (b)(4)(B) of this
rule the court shall require, the party seeking discovery to pay
the other party a fair portion of the fees and expenses
reasonably incurred by the latter party in obtaining facts and
opinions from the expert.

(c) Protective Orders. Upon motion by a party or by the person
from whom discovery is sought, and for good cause shown, the
court in which the action is pending or alternatively, on matters
relating to a deposition, the court in the district where the
deposition is to be taken may make any order which justice
requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including
one or more of the following: (1) that the discovery not be had;
(2) that the discovery may be had only on specified terms and
conditions, including a designation of the time or place; (3)
that the discovery may be had only by a method of
discovery other than that selected by the party seeking
discovery; (4) that certain matters not be inquired into, or that
the scope of the discovery be limited to certain matters; (5)
that discovery be conducted with no one present except persons
designated by the court; (6) that a deposition after being sealed
be opened only by order of the court; (7) that a trade secret or
other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated
way; (8) that the parties simultaneously file specified documents
or information enclosed in sealed envelopes to be opened as
directed by the court.

If the motion for a protective order is denied in whole or in
part, the court may, on such terms and conditions as are just,
order that any party or person provide or permit discovery. The
provisions of Rule 37(a)(4) apply to the award of expenses
incurred in relation to the motion.

(d) Sequence and Timing of Discovery. Unless the court upon
motion, for the convenience of parties and witnesses and in the
interests of justice, orders otherwise, methods of discovery may
be used in any sequence and the fact that a party is conducting
discovery, whether by deposition or otherwise, shall not operate
to delay any other party's discovery.

(e) Supplementation of Responses. A party who has responded to a
request for discovery with a response that was complete when made
is under no duty to supplement the response to include
information thereafter acquired, except as follows:

(1) A party is under a duty seasonably to supplement the response
with respect to any question directly addressed to (A) the
identity and location of persons having knowledge of discoverable
matters, and (B) the identity of each person expected to be
called as an expert witness at trial, the subject matter on which
the person is expected to testify, and the substance of the
person's testimony.


(2)  A party is under a duty seasonably to amend a prior response
if the party obtains information upon the basis of which (A) the
party knows that the response was incorrect when made, or (B) the
party knows that the response though correct when made is no
longer true and the circumstances are such that a failure to
amend the response is in substance a knowing concealment.

/* Two exceptions to the rule of no supplementation. */

(3) A duty to supplement responses may be imposed by order of the
court, agreement of the parties, or at any time prior to trial
through new requests for supplementation of prior responses.

(f) Discovery Conference. At any time after commencement of an
action the court may direct the attorneys for the parties to
appear before it for a conference on the subject of discovery.
The court shall do so upon motion by the attorney for any party
if the motion includes:

(1) A statement of the issues as they then appear;

(2) A proposed plan and schedule of discovery;

(3) Any limitations proposed to be placed on discovery;

(4) Any other proposed orders with respect to discovery; and

(5) A statement showing that the attorney making the motion has
made a reasonable effort to reach agreement with opposing
attorneys on the matters set forth in the motion. Each party and
each party's attorney are under a duty to participate in good
faith in the framing of a discovery plan if a plan is proposed by
the attorney for any party. Notice of the motion shall be served
on all parties.  Objections or additions to matters set forth in
the motion shall be served not later than 10 days after service
of the motion.

Following the discovery conference, the court shall enter an
order tentatively identifying the issues for discovery purposes,
establishing a plan and schedule for discovery, setting
limitations on discovery, if any; and determining such other
matters, including the allocation of expenses, as are necessary
for the proper management of discovery in the action. An order
may be altered or amended whenever justice so requires.

Subject to the right of a party who properly moves for a
discovery conference to prompt convening of the conference, the
court may combine the discovery conference with a pretrial
conference authorized by Rule 16.

(g) Signing of Discovery Requests, Responses, and Objections.
Every request for discovery or response or objection thereto made
by a party represented by an attorney shall be signed by at least
one attorney of record in the attorney's individual name, whose
address shall be stated. A party who is not represented by an
attorney shall sign the request, response, or objection and state
the party's address. The signature of the attorney or party
constitutes a certification that the signer has read the request,
response, or objection, and that to the best of the signer's
knowledge, information, and belief formed after a reasonable
inquiry it is:

(1) consistent with these rules and warranted by existing law or
a good faith argument for the extension, modification, or
reversal of existing law; (2) not interposed for any improper
purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation; and (3) not
unreasonable or unduly burdensome or expensive, given the needs
of the case, the discovery already had in the case, the amount in
controversy, and the importance of the issues at stake in the
litigation. If a request, response, or objection is not signed,
it shall be stricken unless it is signed promptly after the
omission is called to the attention of the party making the
request, response, or objection, and a party shall not be
obligated to take any action with respect to it until it is
signed.

If a certification is made in violation of the rule, the court,
upon motion or upon its own initiative, shall impose upon the
person who made the certification, the party on whose behalf the
request, response, or objection is made, or both, an appropriate
sanction, which may include an order to pay the amount of the
reasonable expenses incurred because of the violation, including
a reasonable attorney's fee.