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Pro Se Tips and Tactics (Discovery)

In this column, I will talk about the importance of doing discovery in any civil case in which you are involved. I will first describe what discovery is and what it is for, then explain why it is so important for you to use discovery tools in your lawsuit, and finally provide some information on how to do discovery. As always, I will discuss these topics from the point of view of a prisoner representing him- or herself in a §1983 case in federal court.

1. What is discovery?

Discovery is a process of finding out information about your case after you file, either from the defendant or from others who might have important information. Obviously, you must know a fair amount about what happened before you file, but you can find out more especially more about what the defendants have done or are doing through discovery.

The basic tools of discovery (although not the only ones) are interrogatories, admissions, depositions, and requests for production of documents. Interrogatories are a series of written questions to a party (you would ask them of a defendant), which are to be answered and sworn to under oath. A deposition is a recorded interview of a person who has been placed under oath, conducted by an attorney or pro se party asking questions. Traditionally, depositions have been recorded by a court reporter, who sits in the deposition taking shorthand notes which can be turned into a written transcript; now depositions are often done via video or audiotaping. A request for production of documents is what it sounds like, a listing of documents (including technological "documents" such as audio or video tapes) that you want the other side to give you.

2. Why should I bother with discovery?

You should use the tools of discovery for several reasons. The most important reason is that you might find something through discovery that makes your case much stronger. You shouldn't file a case unless you have a good basis for it, of course, but you may be able to find out things through discovery that make the case stronger, or allow you to prove easily what might have been hard to prove.

For example, if you are claiming in your case that prison officials transferred you in retaliation for exercising your constitutional rights, you can't win unless you show that the defendant had a so-called "evil motive," that is, hostility to your constitutional rights. See Crawford-El v. Britton , 118 S.Ct. 1584 (1998). You can try to show this through circumstantial evidence, for example by showing that you were transferred right after you complained about bad prison conditions. But it would be much easier to show the defendants' state of mind if you could find some direct evidence of what they were thinking. One place to look for this evidence is in the defendants' documents. There may well be a memo or some other writing that supports your claim you'd be surprised how many times defendants' true intentions are written in memos in the bureaucratic culture of prisons. The way to get this document if it exists is through a request for production of documents, one of the discovery tools discussed above.

You should consider using the other tools of discovery as well to try to get information about various parts of your case. Not all of the tools, however, are helpful in getting all kinds of information. For example, interrogatories are good for getting statistical or other hard factual information, but they are not good for asking open-ended questions. Why? Because the defendant can think about the answers to interrogatories for many weeks, and so can answer open-ended questions in vague or self-serving ways. Depositions are a much better place to ask defendants this kind of question, as the defendant does not know in advance exactly what you will be asking.

Another reason to use the discovery process, and use it early in the case, is to help you to keep the case alive. In cases in which "evil motive" is an element of your claim, the court could limit or cut off your right to do full discovery unless you provide some information early in the case showing that you have some solid proof of bad motive. Crawford-El , 118 S.Ct. at 1596- 98. So, you should immediately try to get some documents or other proof that will help you move forward.

Similarly, early discovery will give you the best chance to defeat the summary judgment motion the defendants are likely to make. Summary judgment is a big topic I discussed in two earlier columns, and you should consult those columns for details. But in short, in order to defeat a summary judgment motion, you must show the court that you will have admissible evidence to present on all of the elements of your claim. Discovery will help you to find the kind of evidence that could help to counter a defendant's request for summary judgment.

Note that the summary judgment rule allows you to respond to a summary judgment motion by requesting more time to do discovery. Federal Rule of Civil Procedure 56(f). However, as I discussed in my summary judgment columns, this does not mean that you can wait to do discovery, because the court can deny a request to do further discovery if you have had time to do discovery but haven't used it. Do your discovery as soon as possible.

A third reason to do discovery is that the information you get can shape or change your case. As you learn more about what happened that you did not know about before, you may find that your claims are different than you thought, or that you should be making additional claims. You might even learn that something you thought happened a certain way did not come down that way, and this could change your thinking about whether you can or should continue your lawsuit.

What all of these reasons add up to is this: The more information you can get, especially information the other side has that you don't have, the better off you are. Discovery is a good way and often is the only way you can get this information.

3. OK, I'll Do Discovery; How Do I Do It?

The general rules governing discovery are found in Federal Rules of Civil Procedure ("Rules") 26 - 37 and in the local rules for the federal district in which your case is filed. It is crucially important for you to look carefully at the local rules, because the discovery rules are very different in different districts. Why? Because Rule 26 (a) states that the parties to a lawsuit must make all kinds of automatic "disclosures" and do other things "except to the extent otherwise stipulated or directed by order or local rule..." Translated, this means that you have to do discovery this way unless you agree with the other side to do it a different way, or the court says that in your case or all cases it can be done a different way.

This has led to very different ways of doing discovery in different districts. For example, in Washington State, where I practice, there are two federal districts and the two require that discovery be approached in different ways. The Eastern District has gone along with the mandatory disclosures and other requirements of Rule 26 and so discovery there is done with close attention to those parts of Rule 26. The Western District has rejected many parts of Rule 26, and instead requires by local rule that discovery be conducted much as it was before the new Rule 26 came into effect, that is without mandatory disclosures and with the parties deciding how to conduct discovery within a time period set by the court.

So, you must pay very close attention to both the general rules and local rules in deciding how discovery is to be conducted. Within these differences, however, there are also many similarities in how particular types of discovery tools are to be used. The rules spell out the basic procedures for requests for production of documents, depositions, interrogatories, and the other available discovery tools.

Rule 26(b) addresses what you can look for in discovery, and this is the same in all districts. You should read this entire rule, but the basic standard is that you may seek discovery "regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action..." And, because this is discovery and not trial, "The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Thus discovery can reach fairly broadly, but it definitely does have limits that the court can impose, and limits imposed by law. See Rule 26(b)(2) and (3), and Crawford-El . In addition, in most districts, you will also face limits on the number of interrogatories, depositions, etc., you can use, so think about how to use each one of the tools efficiently to get the information you really need.

If you stick to the limits on numbers and to trying to find out information related to the elements of your claim or the elements of any defense, you will be well within the permissible limits. If, however, you make too many discovery requests or requests that are too broad or go far beyond what the lawsuit is really about, the court may hit you with limitations or even fines or other punishments.

4. Discovery from prison can be hard; you must be persistent.

You have made a request to the defendant for production of documents. You have followed the rules about how this is done. You get no response within the time limit the rules impose on the defendant. You write to the defendant's lawyer, and get no response. What can you do?

Again, you should consult both the Federal Rules of Civil Procedure and the local rules of the district you are in. Rule 37 sets out a procedure for asking the court for help in "compelling" discovery, that is in making the other side respond to your legitimate discovery requests. Rule 37(a)(1)(A) states that you cannot ask the court for help unless you can show that you made efforts to work the issue out with the other side, and many local rules add specific ways in which attempts to work this out must be shown. Some local rules provide as well for the court to work out discovery disputes on an "expedited," somewhat informal basis.

So, you can ask the court for help once you have tried to get the defendant to answer your request. But it is sometimes not so simple to get the help you want. Many judges do not welcome discovery disputes, as these disputes sometimes seem picky and it may not be obvious how important the material you want is until you get it. However, if you are trying to get important information, you should follow the rules closely, make a good record (through letters that you keep copies of) about your efforts to get the defendant to give up the information, and keep trying. You will have the most success if you can tell the court very specifically what information you want and why it will be important to the case.

It may also be hard for you, as a prisoner acting pro se, to get matters such as depositions scheduled, or to get access to the court to tell the judge orally why you need a particular piece of information. Again, look carefully at the rules and be persistent. In most districts, you will be able to schedule telephone hearings with a judge to discuss discovery disputes, and you should be able to get the court to require defendants to sit for a deposition at the prison if they will not cooperate. Pro se prisoners who do their homework and are willing to persist in their reasonable discovery requests will often be able to get the information they seek.

As always, this column provides general information only and is not legal advice for your case. You should do your own research regarding particular discovery needs and issues in your case.

[John Midgley is a staff attorney at Columbia Legal Services in Seattle, WA. ]

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