Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fedr/frcp3.asc

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/* Part 3 of 6 of the Federal Rules of Civil Procedure follow. */
RULE 27. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

(a) Before Action.

(1) Petition. A person who desires to perpetuate testimony
regarding any matter that may be cognizable in any court of the
United States may file a verified petition in the United States
district court in the district of the residence of any expected
adverse party. The petition shall be entitled in the name of the
petitioner and shall show: 1, that the petitioner expects to be a
party to an action cognizable in a court of the United States but
is presently unable to bring it or cause it to be brought, 2, the
subject matter of the expected action and the petitioner's
interest therein, 3, the facts which the petitioner desires to
establish by the proposed testimony and the reasons for desiring
to perpetuate it, 4, the names or a description of the persons
the petitioner expects will be adverse parties and their
addresses so far as known, and 5, the names and addresses of the
persons to be examined and the substance of the testimony which
the petitioner expects to elicit from each, and shall ask for an
order authorizing the petitioner to take the depositions of the
persons to be examined named in the petition, for the purpose of
perpetuating their testimony.

(2) Notice and Service. The petitioner shall thereafter serve a
notice upon each person named in the petition as an expected
adverse party, together with a copy of the petition, stating that
the petitioner will apply to the court, at a time and place named
therein, for the order described in the petition. At least 20
days before the date of hearing the notice shall be served either
within or without the district or state in the manner provided in
Rule (4)(d) for service of summons; but if such service cannot
with due diligence be made upon any expected adverse party named
in the petition, the court may make such order as is just for
service by publication or otherwise, and shall appoint, for
persons not served in the manner provided in Rule 4(d), an
attorney who shall represent them, and, in case they are not
otherwise represented, shall cross-examine the deponent. If any
expected adverse party is a minor or incompetent the provisions
of Rule 17(c) apply.

(3) Order and Examination. If the court is satisfied that the
perpetuation of the testimony may prevent a failure or delay of
justice, it shall make an order designating or describing the
persons whose depositions may be taken and specifying the subject
matter of the examination and whether the depositions shall be
taken upon oral examination or written interrogatories. The
depositions may then be taken in accordance with these rules; and
the court may make orders of the character provided for by Rules
34 and 35. For the purpose of applying these rules to depositions
for perpetuating testimony, each reference therein to the court
in which the action is pending shall be deemed to refer to the
court in which the petition for such deposition was filed.


(4) Use of Deposition. If a deposition to perpetuate testimony is
taken under these rules or if, although not so taken, it would be
admissible in evidence in the courts of the state in which it is
taken, it may be used in any action involving the same subject
matter subsequently brought in a United States district court, in
accordance with the provisions of Rule 32(a).

(b) Pending Appeal. If an appeal has been taken from a judgment
of a district court or before the taking of an appeal if the time
therefor has not expired, the district court in which the
judgment was rendered may allow the taking of the depositions of
witnesses to perpetuate their testimony for use in the event of
further proceedings in the district court. In such case the party
who desires to perpetuate the testimony may make a motion in the
district court for leave to take the depositions, upon the same
notice and service thereof as if the action was pending in the
district court. The motion shall show (1) the names and addresses
of persons to be examined and the substance of the testimony
which the party expects to elicit from each; (2) the reasons for
perpetuating their testimony. If the court finds that the
perpetuation of the testimony is proper to avoid a failure or
delay of justice, it may make an order allowing the depositions
to be taken and may make orders of the character provided for by
Rules 34 and 35, and thereupon the depositions may be taken and
used in the same manner and under the same conditions as are
prescribed in these rules for depositions taken in actions
pending in the district court.

(c) Perpetuation by Action. This rule does not limit the power of
a court to entertain an action to perpetuate testimony.


RULE 28. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN

(a) Within the United States. Within the United States or within
a territory or insular possession subject to the jurisdiction of
the United States, depositions shall be taken before an officer
authorized to administer oaths by the laws of the United States
or of the place where the examination is held, or before a person
appointed by the court in which the action is pending. A person
so appointed has power to administer oaths and take testimony.
The term officer as used in Rules 30, 31 and 32 includes a person
appointed by the court or designated by the parties under Rule 29.

/* The "officer" is usually a notary public. */

(b) In Foreign Countries. In a foreign country, depositions may
be taken (1) on notice before a person authorized to administer
oaths in the place in which the examination is held, either by
the law thereof or by the law of the United States, or (2) before
a person commissioned by the court, and a person so commissioned
shall have the power by virtue of the commission to administer
any necessary oath and take testimony, or (3) pursuant to a
letter rogatory. A commission or a letter rogatory shall be
issued on application and notice and on terms that are just and
appropriate. It is not requisite to the issuance of a commission
or a letter rogatory that the taking of the deposition in any
other manner is impracticable or inconvenient; and both a
commission and a letter rogatory may be issued in proper cases. A
notice or commission may designate the person before whom the
deposition is to be taken either by name or descriptive title. A
letter rogatory may be addressed "To the Appropriate Authority in
[here name the country]." Evidence obtained in response to a
letter rogatory need not be excluded merely for the reason that
it is not a verbatim transcript or that the testimony was not
taken under oath or for any similar departure from the
requirements for depositions taken within the United
States under these rules.

/* In many foreign countries mere lawyers are not allowed to
question witnesses. In many European countries "depositions" are
unknown in their court system and American style depositions are
disfavored. Accordingly, often the result of a letter rogatory is
a report from some court of magistrate or Judge. */

(c) Disqualification for Interest. No deposition shall be taken
before a person who is a relative or employee or attorney or
counsel of any of the parties, or is a relative or employee of such
attorney or counsel, or is financially interested in the action.


RULE 29. STIPULATIONS REGARDING DISCOVERY PROCEDURE

Unless the court orders otherwise, the parties may by written
stipulation (1) provide that depositions may be taken before any
person, at any time or place, upon any notice, and in any manner
and when so taken may be used like other depositions, and (2)
modify the procedures provided by these rules for other methods
of discovery, except that stipulations extending the time
provided in Rules 33, 34, and 36 for responses to discovery may
be made only with the approval of the court.

/* This permits the parties to agree on video depositions, as one
example. */


RULE 30. DEPOSITIONS UPON ORAL EXAMINATION

(a) When Depositions May be Taken. After commencement of the
action, any party may take the testimony of any person, including
a party, by deposition upon oral examination. Leave of court,
granted with or without notice, must be obtained only if the
plaintiff seeks to take a deposition prior to the expiration of
30 days after service of the summons and complaint upon any
defendant or service made under Rule 4(e), except that leave is
not required

(1) if a defendant has served a notice of taking deposition or
otherwise sought discovery, or (2) if special notice is given as
provided in subdivision (b)(2) of this rule. The attendance of
witnesses may be compelled by subpoena as provided in Rule 45. The
deposition of a person confined in prison may be taken only by
leave of court on such terms as the court prescribes.

(b) Notice of Examination: General Requirements; Special Notice;
Non-Stenographic Recording; Production of Documents and Things;
Deposition of Organization; Deposition by Telephone.

(1) A party desiring to take the deposition of any person upon
oral examination shall give reasonable notice in writing to every
other party to the action. The notice shall state the time and
place for taking the deposition and the name and address of each
person to be examined, if known, and, if the name is not known, a
general description sufficient to identify the person or the
particular class or group to which the person belongs. If a
subpoena duces tecum is to be served on the person to be
examined, the designation of the materials to be produced as set
forth in the subpoena shall be attached to or included in the
notice.

(2) Leave of court is not required for the taking of a deposition
by the plaintiff if the notice (A) states that the person to be
examined is about to go out of the district where the action is
pending and more than 100 miles from the place of trial, or is
about to go out of the United States, or is bound on a voyage to
sea, and will be unavailable for examination unless the person's
deposition is taken before expiration of the 30-day period, and
(B) sets forth facts to support the statement. The plaintiff's
attorney shall sign the notice, and the attorney's signature
constitutes a certification by the attorney that to the best of
the attorney's knowledge, information, and belief the statement
and supporting facts are true. The sanctions provided by Rule 11
are applicable to the certification.

If a party shows that when the party was served with notice under
this subdivision (b)(2) the party was unable through the exercise
of diligence to obtain counsel to represent the party at the
taking of the deposition, the deposition may not be used against
the party.

(3) The court may for cause shown enlarge or shorten the time for
taking the deposition.

(4) The parties may stipulate in writing or the court may upon
motion order that the testimony at a deposition be recorded by
other than stenographic means. The stipulation or order shall
designate the person before whom the deposition shall be taken,
the manner of recording, preserving and filing the deposition,
and may include other provisions to assure that the recorded
testimony will be accurate and trustworthy. A party may arrange
to have a stenographic transcription made at the party's own
expense. Any objections under subdivision (c), any changes made
by the witness, the witness' signature identifying the deposition
as the witness' own or the statement of the officer that is
required if the witness does not sign, as provided in subdivision
(e), and the certification of the officer required by subdivision
(f) shall be set forth in a writing to accompany a deposition
recorded by non-stenographic means.

(5) The notice to a party deponent may be accompanied by a
request made in compliance with Rule 34 for the production of
documents and tangible things at the taking of the deposition.
The procedure of Rule 34 shall apply to the request.

(6) A party may in the party's notice and in a subpoena name as
the deponent a public or private corporation or a partnership or
association or governmental agency and describe with reasonable
particularity the matters on which examination is requested. In
that event, the organization so named shall designate one or more
officers, directors, or managing agents, or other persons who
consent to testify on its behalf, and may set forth, for each
person designated, the matters on which the person will testify.
A subpoena shall advise a non-party organization of its duty to
make such a designation. The persons so designated shall testify
as to matters known or reasonably available to the organization.
This subdivision (b)(6) does not preclude taking a deposition by
any other procedure authorized in these rules.

(7) The parties may stipulate in writing or the court may upon
motion order that a deposition be taken by telephone. For the
purposes of this rule and Rules 28(a), 37(a)(1), 37(b)(1) and
45(d), a deposition taken by telephone is taken in the district
and at the place where the deponent is to answer questions
propounded to the deponent.

(c) Examination and Cross-Examination; Record of Examination;
Oath; Objections. Examination and cross-examination of witnesses
may proceed as permitted at the trial under the provisions of the
Federal Rules of Evidence. The officer before whom the deposition
is to be taken shall put the witness on oath and shall
personally, or by someone acting under the officer's direction
and in the officer's presence, record the testimony of the
witness. The testimony shall be taken stenographically or
recorded by any other means ordered in accordance with
subdivision (b)(4) of this rule.  If requested by one of the
parties, the testimony shall be transcribed. All objections made
at the time of the examination to the qualifications of the
officer taking the deposition, or to the manner of taking it, or
to the evidence presented, or to the conduct of any party, and
any other objection to the proceedings, shall be noted by the
officer upon the deposition. Evidence objected to shall be taken
subject to the objections. In lieu of participating in the oral
examination, parties may serve written questions in a sealed
envelope on the party taking the deposition and the party taking
the deposition shall transmit them to the officer, who shall
propound them to the witness and record the answers verbatim.

(d) Motion to Terminate or Limit Examination. At any time during
the taking of the deposition, on motion of a party or of the
deponent and upon a showing that the examination is being
conducted in bad faith or in such manner as unreasonably to
annoy, embarrass, or oppress the deponent or party, the court in
which the action is pending or the court in the district where
the deposition is being taken may order the officer conducting
the examination to cease forthwith from taking the deposition, or
may limit the scope and manner of the taking of the deposition as
provided in Rule 26(c).  If the order made terminates the
examination, it shall be resumed thereafter only upon the order
of the court in which the action is pending. Upon demand of the
objecting party or deponent, the taking of the deposition shall
be suspended for the time necessary to make a motion for an
order. The provisions of Rule 37(a)(4) apply to the award of
expenses incurred in relation to the motion.

(e) Submission to Witness; Changes; Signing. When the testimony
is fully transcribed the deposition shall be submitted to the
witness for examination and shall be read to or by the witness,
unless such examination and reading are waived by the witness and
by the parties. Any changes in form or substance which the
witness desires to make shall be entered upon the deposition by
the officer with a statement of the reasons given by the witness
for making them. The deposition shall then be signed by the
witness, unless the parties by stipulation waive the signing or
the witness is ill or cannot be found or refused to sign. If the
deposition is not signed by the witness within 30 days of its
submission to the witness, the officer shall sign it and state on
the record the fact of the waiver or of the illness or absence of
the witness or the fact of the refusal to sign together with the
reason, if any, given therefor; and the deposition may then be
used as fully as though signed unless on a motion to suppress
under Rule 32(d)(4) the court holds that the reasons given for
the refusal to sign require rejection of the deposition in whole
or in part.

(f) Certification and Filing by Officer; Exhibits; Copies; Notice
of Filing. (1) The officer shall certify on the deposition that
the witness was duly sworn by the officer and that the deposition
is a true record of the testimony given by the witness. Unless
otherwise ordered by the court, the officer shall then securely
seal the deposition in an envelope indorsed with the title of the
action and marked "Deposition of [here insert name of witness]"
and shall promptly file it with the court in which the action is
pending or send it by registered or certified mail to the clerk
thereof for  filing.

Documents and things produced for inspection during the
examination of the witness, shall, upon the request of a party,
be marked for identification and annexed to the deposition, and
may be inspected and copied by any party, except that if the
person producing the materials desires to retain them the person
may (A) offer copies to be marked for identification and annexed
to the deposition and to serve thereafter as originals if the
person affords to all parties fair opportunity to verify the
copies by comparison with the originals, or (B) offer the
originals to be marked for identification, after giving to each
party an opportunity to inspect and copy them, in which event the
materials may then be used in the same manner as if annexed to
the deposition. Any party may move for an order that the original
be annexed to and returned with the deposition to the court,
pending final disposition of the case.

(2) Upon payment of reasonable charges therefor, the officer
shall furnish a copy of the deposition to any party or to the
deponent.

(3) The party taking the deposition shall give prompt notice of
its filing to all other parties.

(g) Failure to Attend or to Serve Subpoena; Expenses.

(1) If the party giving the notice of the taking of a deposition
fails to attend and proceed therewith and another party attends
in person or by attorney pursuant to the notice, the court may
order the party giving the notice to pay to such other party the
reasonable expenses incurred by that party and that party's
attorney in attending, including reasonable attorney's fees.

(2) If the party giving the notice of the taking of a deposition
of a witness fails to serve a subpoena upon the witness and the
witness because of such failure does not attend, and if another
party attends in person or by attorney because that party expects
the deposition of that witness to be taken, the court may order
the party giving the notice to pay to such other party the
reasonable expenses incurred by that party and that party's
attorney in attending, including reasonable attorney's fees.


RULE 31. DEPOSITION UPON WRITTEN QUESTIONS

(a) Serving Questions; Notice. After commencement of the action,
any party may take the testimony of any person, including a
party, by deposition upon written questions. The attendance of
witnesses may be compelled by the use of subpoena as provided in
Rule 45. The deposition of a person confined in prison may be
taken only by leave of court on such terms as the court
prescribes.

A party desiring to take a deposition upon written questions
shall serve them upon every other party with a notice stating (1)
the name and address of the person who is to answer them, if
known, and if the name is not known, a general description
sufficient to identify the person or the particular class or
group to which the person belongs, and (2) the name or
descriptive title and address of the officer before whom the
deposition is to be taken. A deposition upon written questions
may be taken of a public or private corporation or a partnership
or association or governmental agency in accordance with the
provisions of Rule 30(b)(6).

Within 30 days after the notice and written questions are served,
a party may serve cross questions upon all other parties. Within
10 days after being served with cross questions, a party may
serve redirect questions upon all other parties. Within 10 days
after being served with redirect questions, a party may serve
recross questions upon all other parties. The court may for cause
shown enlarge or shorten the time.

(b) Officer to Take Responses and Prepare Record. A copy of the
notice and copies of all questions served shall be delivered by
the party taking the deposition to the officer designated in the
notice, who shall proceed promptly, in the manner provided by
Rule 30(c), (e), and (f), to take the testimony of the witness in
response to the questions and to prepare, certify, and file or
mail the deposition, attaching thereto the copy of the notice and
the questions received by the officer.

(c) Notice of Filing. When the deposition is filed the party
taking it shall promptly give notice thereof to all other
parties.


RULE 32. USE OF DEPOSITIONS IN COURT PROCEEDINGS

(a) Use of Depositions. At the trial or upon the hearing of a
motion or an interlocutory proceeding, any part or all of a
deposition, so far as admissible under the rules of evidence
applied as though the witness were then present and testifying,
may be used against any party who was present or represented at
the taking of the deposition or who had reasonable notice
thereof, in accordance with any of the following provisions:

(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a
witness, or for any other purpose permitted by the Federal Rules
of Evidence.

(2) The deposition of a party or of anyone who at the time of
taking the deposition was an officer, director, or managing
agent, or a person designated under Rule 30(b)(6) or 31(a) to
testify on behalf of a public or private corporation, partnership
or association or governmental agency which is a party may be
used by an adverse party for any purpose.

(3) The deposition of a witness, whether or not a party, may be
used by any party for any purpose if the court finds: (A) that
the witness is dead; or (B) that the witness is at a greater
distance than 100 miles from the place of trial or hearing, or is
out of the United States, unless it appears that the absence of
the witness was procured by the party offering the deposition; or
(C) that the witness is unable to attend or testify because of
age, illness, infirmity, or imprisonment; or (D) that the party
offering the deposition has been unable to procure the attendance
of the witness by subpoena; or (E) upon application and notice,
that such exceptional circumstances exist as to make it
desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in
open court, to allow the deposition to be used.

(4) If only part of a deposition is offered in evidence by a
party, an adverse party may require the offeror to introduce any
other part which ought in fairness to be considered with the part
introduced, and any party may introduce any other parts.

Substitution of parties pursuant to Rule 25 does not affect the
right to use depositions previously taken; and, when an action
has been brought in any court of the United States or of any
State and another action involving the same subject matter is
afterward brought between the same parties or their
representatives or successors in interest, all depositions
lawfully taken and duly filed in the former action may be used in
the latter as if originally taken therefor. A deposition
previously taken may also be used as permitted by the Federal
Rules of Evidence.

(b) Objections to Admissibility. Subject to the provisions of
Rule 28(b) and subdivision (d)(3) of this rule, objection may be
made at the trial or hearing to receiving in evidence any
deposition or part thereof for any reason which would require the
exclusion of the evidence if the witness were then present and
testifying.

(c) [Abrogated]

(d) Effect of Errors and Irregularities in Depositions.

(1) As to Notice. All errors and irregularities in the notice for
taking a deposition are waived unless written objection is
promptly served upon the party giving the notice.

(2) As to Disqualification of Officer. Objection to taking a
deposition because of disqualification of the officer before whom
it is to be taken is waived unless made before the taking of the
deposition begins or as soon thereafter as the disqualification
becomes known or could be discovered with reasonable diligence.

(3) As to Taking of Deposition.

(A) Objections to the competency of a witness or to the
competency, relevancy, or materiality of testimony are not waived
by failure to make them before or during the taking of the
deposition, unless the ground of the objection is one which might
have been obviated or removed if presented at that time.

(B) Errors and irregularities occurring at the oral examination
in the manner of taking the deposition, in the form of the
questions or answers, in the oath or affirmation, or in the
conduct of parties, and errors of any kind which might be
obviated, removed, or cured if promptly presented, are waived
unless seasonable objection thereto is made at the taking of the
deposition.

(C) Objections to the form of written questions submitted under
Rule 31 are waived unless served in writing upon the party
propounding them within the time allowed for serving the
succeeding cross or other questions and within 5 days after
service of the last questions authorized.

(4) As to Completion and Return of Deposition. Errors and
irregularities in the manner in which the testimony is
transcribed or the deposition is prepared, signed, certified,
sealed, indorsed, transmitted, filed, or otherwise dealt with by
the officer under Rules 30 and 31 are waived unless a motion to
suppress the deposition or some part thereof is made with
reasonable promptness after such defect is, or with due diligence
might have been, ascertained.


RULE 33. INTERROGATORIES TO PARTIES

(a) Availability; Procedures for Use. Any party may serve upon
any other party written interrogatories to be answered by the
party served or, if the party served is a public or private
corporation or a partnership or association or governmental
agency, by any officer or agent, who shall furnish such
information as is available to the party. Interrogatories may,
without leave of court, be served upon the plaintiff after
commencement of the action and upon any other party with or after
service of the summons and complaint upon that party.

Each interrogatory shall be answered separately and fully in
writing under oath, unless it is objected to, in which event the
reasons for objection shall be stated in lieu of an answer. The
answers are to be signed by the person making them, and the
objections signed by the attorney making them. The party upon
whom the interrogatories have been served shall serve a copy of
the answers, and objections if any, within 30 days after the
service of the interrogatories, except that a defendant may serve
answers or objections within 45 days after service of the summons
and complaint upon that defendant. The court may allow a shorter
or longer time. The party submitting the interrogatories may move
for an order under Rule 37(a) with respect to any objection to or
other failure to answer an interrogatory.

/* Local rules usually limit the number of interrogatories. */

(b) Scope; Use at Trial. Interrogatories may relate to any
matters which can be inquired into under Rule 26(b), and the
answers may be used to the extent permitted by the rules of
evidence.

An interrogatory otherwise proper is not necessarily
objectionable merely because an answer to the interrogatory
involves an opinion or contention that relates to fact or the
application of law to fact, but the court may order that such an
interrogatory need not be answered until after designated
discovery has been completed or until a pre-trial conference or
other later time.

(c) Option to Produce Business Records. Where the answer to an
interrogatory may be derived or ascertained from the business
records of the party upon whom the interrogatory has been served
or from an examination, audit or inspection of such business
records, including a compilation, abstract or summary thereof and
the burden of deriving or ascertaining the answer is
substantially the same for the party serving the interrogatory as
for the party served, it is a sufficient answer to such
interrogatory to specify the records from which the answer may be
derived or ascertained and to afford to the party serving the
interrogatory reasonable opportunity to examine, audit or inspect
such records and to make copies, compilations, abstracts or
summaries. A specification shall be in sufficient detail to
permit the interrogating party to locate and to identify, as
readily as can the party served, the records from which the
answer may be ascertained.


RULE 34. PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND
FOR INSPECTION AND OTHER PURPOSES

(a) Scope. Any party may serve on any other party a request (1)
to produce and permit the party making the request, or someone
acting on the requestor's behalf, to inspect and copy, any
designated documents (including writings, drawings, graphs,
charts, photographs, phono records, and other data compilations
from which information can be obtained, translated, if necessary,
by the respondent through detection devices into reasonably
usable form), or to inspect and copy, test, or sample any
tangible things which constitute or contain matters within the
scope of Rule 26(b) and which are in the possession, custody or
control of the party upon whom the request is served; or (2) to
permit entry upon designated land or other property in the
possession or control of the party upon whom the request is
served for the purpose of inspection and measuring, surveying,
photographing, testing, or sampling the property or any
designated object or operation thereon, within the scope of Rule
26(b).

(b) Procedure. The request may, without leave of court, be served
upon the plaintiff after commencement of the action and upon any
other party with or after service of the summons and complaint
upon that party. The request shall set forth the items to be
inspected either by individual item or by category, and describe
each item and category with reasonable particularity. The request
shall specify a reasonable time, place, and manner of making the
inspection and performing the related acts.

The party upon whom the request is served shall serve a written
response within 30 days after the service of the request, except
that a defendant may serve a response within 45 days after service
of the summons and complaint upon that defendant. The court may
allow a shorter or longer time. The response shall state, with
respect to each item or category, that inspection and related
activities will be permitted as requested, unless the request is
objected to, in which event the reasons for objection shall be
stated. If objection is made to part of an item or category, the
part shall be specified. The party submitting the request may
move for an order under Rule 37(a) with respect to any objection
to or other failure to respond to the request or any part
thereof, or any failure to permit inspection as requested.

A party who produces documents for inspection shall produce them
as they are kept in the usual course of business or shall
organize and label them to correspond with the categories in the
request.

(c) Persons Not Parties. A person not a party to the action may
be compelled to produce documents and things or to submit to an
inspection as provided in Rule 45.

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


RULE 35. PHYSICAL AND MENTAL EXAMINATIONS OF PERSONS

(a) Order for Examination. When the mental or physical condition
(including the blood group) of a party, or of a person in the
custody or under the legal control of a party, is in controversy,
the court in which the action is pending may order the party to
submit to a physical or mental examination by a suitably licensed
or certified examiner or to produce for examination the person in
the party's custody or legal control. The order may be made only
on motion for good cause shown and upon notice to the person to
be examined and to all parties and shall specify the time, place,
manner, conditions, and scope of the examination and the person
or persons by whom it is to be made.

(b) Report of Examiner.

(1) If requested by the party against whom an order is made under
Rule 35(a) or the person examined, the party causing the
examination to be made shall deliver to the requesting party a
copy of a detailed written report of the examiner setting out the
examiner's findings, including results of all tests made,
diagnoses and conclusions, together with like reports of all
earlier examinations of the same condition. After delivery the
party causing the examination shall be entitled upon request to
receive from the party against whom the order is made a like
report of any examination, previously or thereafter made, of the
same condition, unless, in the case of a report of examination of
a person not a party, the party shows that the party is unable to
obtain it. The court on motion may make an order against a party
requiring delivery of a report on such terms as are just, and if
an examiner fails or refuses to make a report the court may
exclude the examiner's testimony if offered at the trial.

(2) By requesting and obtaining a report of the examination so
ordered or by taking the deposition of the examiner, the party
examined waives any privilege the party may have in that action
or any other involving the same controversy, regarding the
testimony of every other person who has examined or may
thereafter examine the party in respect of the same mental or
physical condition.

(3) This subdivision applies to examinations made by agreement of
the parties, unless the agreement expressly provides otherwise.
This subdivision does not preclude discovery of a report of an
examiner or the taking of a deposition of the examiner in
accordance with the provisions of any other rule.

(c) Definitions. For the purpose of this rule, a psychologist is
a psychologist licensed or certified by a State or the District
of Columbia.

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


RULE 36. REQUESTS FOR ADMISSION

(a) Request for Admission. A party may serve upon any other party
a written request for the admission, for purposes of the pending
action only, of the truth of any matters within the scope of Rule
26(b) set forth in the request that relate to statements or
opinions of fact or of the application of law to fact including
the genuineness of any documents described in the request. Copies
of documents shall be served with the request unless they have
been or are otherwise furnished or made available for inspection
and copying. The request may, without leave of court, be served
upon the plaintiff after commencement of the action and upon any
other party with or after service of the summons and complaint
upon that party.

Each matter of which an admission is requested shall be
separately set forth. The matter is admitted unless, within 30
days after service of the request, or within such shorter or
longer time as the court may allow, the party to whom the request
is directed serves upon the party requesting the admission a
written answer or objection addressed to the matter, signed by
the party or by the party's attorney, but, unless the court
shortens the time, a defendant shall not be required to serve
answers or objections before the expiration of 45 days after
service of the summons and complaint upon that defendant. If
objection is made, the reasons therefor shall be stated. The
answer shall specifically deny the matter or set forth in detail
the reasons why the answering party cannot truthfully admit or
deny the matter. A denial shall fairly meet the substance of the
requested admission, and when good faith requires that a party
qualify an answer or deny only a part of the matter of which an
admission is requested, the party shall specify so much of it as
is true and qualify or deny the remainder. An answering party may
not give lack of information or knowledge as a reason for failure
to admit or deny unless the party states that the party has made
reasonable inquiry and that the information known or readily
obtainable by the party is insufficient to enable the party to
admit or deny. A party who considers that a matter of which an
admission has been requested presents a genuine issue for trial
may not, on that ground alone, object to the request; the party
may, subject to the provisions of Rule 37(c), deny the matter or
set forth reasons why the party cannot admit or deny it.

The party who has requested the admissions may move to determine
the sufficiency of the answers or objections. Unless the court
determines that an objection is justified, it shall order that an
answer be served. If the court determines that an answer does not
comply with the requirements of this rule, it may order either
that the matter is admitted or that an amended answer be served.
The court may, in lieu of these orders, determine that final
disposition of the request be made at a pre-trial conference or
at a designated time prior to trial. The provisions of Rule
37(a)(4) apply to the award of expenses incurred in relation to
the motion.

(b) Effect of Admission. Any matter admitted under this rule is
conclusively established unless the court on motion permits
withdrawal or amendment of the admission. Subject to the
provision of Rule 16 governing amendment of a pre-trial order,
the court may permit withdrawal or amendment when the
presentation of the merits of the action will be subserved
thereby and the party who obtained the admission fails to satisfy
the court that withdrawal or amendment will prejudice that party
in maintaining the action or defense on the merits. Any admission
made by a party under this rule is for the purpose of the pending
action only and is not an admission for any other purpose nor may
it be used against the party in any other proceeding.


RULE 37. FAILURE TO MAKE OR COOPERATE IN DISCOVERY: SANCTIONS

(a) Motion for Order Compelling Discovery. A party, upon
reasonable notice to other parties and all persons affected
thereby, may apply for an order compelling discovery as follows:

(1) Appropriate Court. An application for an order to a party may
be made to the court in which the action is pending, or, on
matters relating to a deposition, to the court in the district
where the deposition is being taken. An application for an order
to a deponent who is not a party shall be made to the court in
the district where the deposition is being taken.

(2) Motion. If a deponent fails to answer a question propounded
or submitted under Rules 30 or 31, or a corporation or other
entity fails to make a designation under Rule 30(b)(6) or 31(a),
or a party fails to answer an interrogatory submitted under Rule
33, or if a party, in response to a request for inspection
submitted under Rule 34, fails to respond that inspection will be
permitted as requested or fails to permit inspection as
requested, the discovering party may move for an order compelling
an answer, or a designation, or an order compelling inspection in
accordance with the request. When taking a deposition on oral
examination, the proponent of the question may complete or
adjourn the examination before applying for an order.

If the court denies the motion in whole or in part, it may make
such protective order as it would have been empowered to make on
a motion made pursuant to Rule 26(c).

(3) Evasive or Incomplete Answer. For purposes of this
subdivision an evasive or incomplete answer is to be treated as a
failure to answer.

(4) Award of Expenses of Motion. If the motion is granted, the
court shall, after opportunity for hearing, require the party or
deponent whose conduct necessitated the motion or the party or
attorney advising such conduct or both of them to pay to the moving
party the reasonable expenses incurred in obtaining the order,
including attorney's fees, unless the court finds that the
opposition to the motion was substantially justified or that other
circumstances make an award of expenses unjust.

If the motion is denied, the court shall, after opportunity for
hearing, require the moving party or the attorney advising the
motion or both of them to pay to the party or deponent who
opposed the motion the reasonable expenses incurred in opposing
the motion, including attorney's fees, unless the court finds
that the making of the motion was substantially justified or that
other circumstances make an award of expenses unjust.

If the motion is granted in part and denied in part, the court
may apportion the reasonable expenses incurred in relation to the
motion among the parties and persons in a just manner.

(b) Failure to Comply with Order.

(1) Sanctions by Court in District Where Deposition is Taken. If
a deponent fails to be sworn or to answer a question after being
directed to do so by the court in the district in which the
deposition is being taken, the failure may be considered a
contempt of that court.

(2) Sanctions by Court in Which Action is Pending. If a party or
an officer, director, or managing agent of a party or a person
designated under Rule 30(b)(6) or 31(a) to testify on behalf of a
party fails to obey an order to provide or permit discovery,
including an order made under subdivision (a) of this rule or
rule 35, or if a party fails to obey an order entered under Rule
26(f), the court in which the action is pending may make such
orders in regard to the failure as are just, and among others the
following:

(A) An order that the matters regarding which the order was made
or any other designated facts shall be taken to be established
for the purposes of the action in accordance with the claim of
the party obtaining the order;

(B) An order refusing to allow the disobedient party to support
or oppose designated claims or defenses, or prohibiting that
party from introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or rendering a judgment
by default against the disobedient party;

(D) In lieu of any of the foregoing orders or in addition
thereto, an order treating as a contempt of court the failure to
obey any orders except an order to submit to a physical or mental
examination;

(E) Where a party has failed to comply with an order under Rule
35(a) requiring that party to produce another for examination,
such orders as are listed in paragraphs (A), (B), and (C) of this
subdivision, unless the party failing to comply shows that that
party is unable to produce such person for examination.

In lieu of any of the foregoing orders or in addition thereto,
the court shall require the party failing to obey the order or
the attorney advising that party or both to pay the reasonable
expenses, including attorney's fees, caused by the failure,
unless the court finds that the failure was substantially
justified or that other circumstances make an award of expenses
unjust.

(c) Expenses on Failure to Admit. If a party fails to admit the
genuineness of any document or the truth of any matter as
requested under Rule 36, and if the party requesting the
admissions thereafter proves the genuineness of the document or
the truth of the matter, the requesting party may apply to the
court for an order requiring the other party to pay the
reasonable expenses incurred in making that proof, including
reasonable attorney's fees. The court shall make the order unless
it finds that (1) the request was held objectionable pursuant to
Rule 36(a), or (2) the admission sought was of no substantial
importance, or (3) the party failing to admit had reasonable
ground to believe that the party might prevail on the matter, or
(4) there was other good reason for the failure to admit.