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Pro Se Tips and Tactics (Discovery)

In my last column, I discussed discovery generally and introduced the tools of discovery. In this column I provide more detail on some specific discovery topics: how "mandatory disclosure" rules in effect in many federal district courts can be used to your advantage; how to decide what must be disclosed under mandatory disclosure rules; and the duty of the plaintiffs and defendants in federal lawsuits to preserve and disclose evidence relevant to the case.

1. Mandatory disclosure rules can help you find out much about your case.

A few years ago, the Federal Rules of Civil Procedure were changed to require the parties in a lawsuit to meet soon after the case is filed to discuss the case, and propose to the court how the case should proceed through discovery and trial. Rule 26(f). (See also Rule 16 and the local rules of the district you are in, which will affect the timing of this meeting.) The rules were also changed to create a new "automatic" form of discovery. Within 10 days after the meeting of the parties, each party must even without a request from the other side disclose to all other parties:

the identity of people "likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings...", along with the subjects of the information these people have;

copies or a listing of "all documents, data compilations, and tangible things [the party has access to] that are relevant to disputed facts alleged with particularity in the pleadings";

computation of damages and material supporting the computation; and

relevant insurance coverage.

Rule 26(a). These are called "mandatory disclosures."

However, even though these mandatory disclosure rules are in the Federal Rules, they are not effect in every federal district. The rules allow the judges in each federal district to choose whether to use these rules or to have their own discovery rules. See the first few lines of Rule 26(a)(1). This has resulted in a patchwork of differing rules for different districts: In Washington state, where I practice, there are two federal districts. The Eastern District follows the mandatory disclosure rules; the Western District does not, and instead has local rules that tell how discovery is to be conducted.

So, first check the local rules of the federal district court in which your case is pending. Unless there is a local rule saying that the mandatory disclosure requirements of Rule 26(b) do not apply, then they do apply to cases filed in that district.

Even if the mandatory disclosure rules do apply in your district, they can be changed or removed in a case if the parties agree that they should not apply, or if the court orders that they do not apply. Rule 26(a)(first few lines). If you are in a district in which the mandatory disclosure rules apply, you probably should not agree to any suggestion by the defendants to give up the mandatory disclosure rules. You should not agree because the mandatory disclosure rules can be very helpful to you.

The mandatory disclosure rules can be helpful because they require the defendants usually state or county officials in a prison case to give you information that you might not otherwise know. For example, they must tell you, even if you don't ask, about people, documents, and other evidence that could have information "relevant to disputed facts alleged with particularity in the pleadings." This helps for two reasons: One, you may not know enough to ask in your own discovery requests about some of the witnesses or information that come out through mandatory disclosure. Two, prisoners frequently run into lawyers for the state who are not cooperative. For example, these lawyers may not respond to a discovery request, forcing the prisoner to go through the difficult process of getting the court to order answers (see my last column). Or a lawyer may play games by refusing to disclose things because the prisoner didn't ask in just the right way. Mandatory disclosure rules eliminate some of this kind of lawyering, because the disclosure must occur even without a request, and because there are specific penalties for nondisclosure. See discussion of the duty to disclose later in this column.

Note that in districts requiring mandatory disclosure, you can still use other discovery tools if you want to. Rule 26(a)(5). The mandatory disclosures, at least in theory, can make the process easier and faster by requiring all the players to show some cards early on. After you get the mandatory disclosure materials, you can use the other discovery tools discussed in my last column to follow up on what you learn through mandatory disclosure, or to get information on other topics.

2. What must be disclosed?

The mandatory disclosure rules do have a built-in limit on what witnesses, documents, and evidence must be disclosed without a request from the other side: Parties must disclose only material or witnesses having, or likely to have, information "relevant to disputed facts alleged with particularity in the pleadings." Rule 26(a)(1)(A) & (B). The mandatory disclosure rules do not require that the defendants give you information on undisputed facts, that is, facts you've alleged that the defendants admit. Thus, to determine what must be disclosed, you must decide what are the "disputed facts" in your case that have been "alleged with particularity in the pleadings."

Disputed facts are facts you have put forward in your complaint that the other side claims are not correct. You can begin to figure out which facts are disputed from the answer the defendants file, because they are required to admit or deny the factual allegations of the complaint. Rule 8(b). The drafters of the mandatory disclosure rules also suggest that you discuss with the defendants, at the required early meeting about the case, which facts are disputed. See Committee Notes on Amendments to Federal Rules of Civil Procedure, comments on Rule 26, 146 FRD 627-644, at 631 (1993). ("FRD" refers to the Federal Rules Decisions.)

But note that the facts on which the defendants (and you) must provide mandatory disclosure are not only those that are disputed, they must also be "alleged with particularity in the pleadings." This is not a clear standard, but in general it means that unless you are pretty specific about what you are claiming, the defendants may not have to disclose very much.

As explained by the drafters of the rules,

Broad, vague, and conclusory allegations sometimes tolerated in notice pleading -for example, the assertion that a product with many component parts is defective in some unspecified manner should not impose upon the responding parties the obligation at that point to search for and identify all persons possibly involved in, or all documents affecting, the design, manufacture, and assembly of the product. The greater the specificity and clarity of the allegations in the pleadings, the more complete should be the listing of potential witnesses and types of documentary evidence.

Committee Notes, 146 FRD at 63 1. In other words, make your fact allegations as clear and specific as possible, which will help prevent defendants from claiming that they could not tell what you were getting at and so should not be required to disclose very much material.

3. Duty to preserve and disclose discoverable materials, sanctions for violations

Whether or not you are in a district that requires mandatory disclosures as part of the discovery process, all parties to your lawsuit (including you) have a duty to preserve and disclose evidence that the other parties can legitimately seek under the discovery rules. The court can impose penalties for violating these duties.

If the defendants in your case successfully delay discovery by failing to provide mandatory disclosure or refusing to respond to your discovery requests, you have a right to expect that the evidence you seek will remain available until you can get at it. The parties to a lawsuit are not supposed to destroy evidence either while a suit is going on or immediately before it is filed. Unigard Security Insurance v. Lakewood Enginggdu, 982 F.2d 363 (9th Cir. 1992). Some courts have even held that government agents were wrong to destroy evidence long before a lawsuit was filed, if the reason for destruction was to avoid being held responsible. See Kronisch v. U.S., 150 F.3d 112, 126 -127 (2nd Cir. 1998)(CIA officials should not have destroyed in 1973 records of drug experiments on unwitting human subjects, even though no lawsuit was pending.)

If you have a strong reason to believe that important evidence will be destroyed before you can get it through mandatory disclosure or other discovery devices, you can ask the court for help. As one useful manual suggests,

Because courts may be reluctant to impose sanctions for destruction of evidence before litigation commences, where there is a possibility documents or other evidence may be destroyed, consideration should be given to filing suit and seeking an immediate order preserving evidence. In the alternative, consideration should be given to writing a letter to the potential adversary stating litigation is contemplated and demanding the preservation of designated documents and other evidence relevant to the dispute.

Grenig and Kinsler, Handbook of Federal Civil Discovery and Disclosure (West 1998, with 1999 supplement), at page 56.

Both sides also have a duty to disclose evidence in their possession that is the proper subject of either mandatory disclosures or a well-drafted discovery request, See Rules 26(a) & (b). Neither you nor the defendants are allowed to hold back unfavorable evidence if that evidence is within the proper scope of discovery.

There is also a continuing duty to disclose. Sometimes evidence is found after you and the other side have already provided most of the information you have. All parties are required to disclose new material that they would have had to disclose if they had the material earlier, and to correct anything that was inaccurate when it was disclosed. Rule 26(e).

If a party violates the duty to preserve, to disclose, or to update, the court has a menu of sanctions (punishments for violating the duty) from which to choose. Rule 37(b). If you believe the other side has violated one of these duties, you probably should ask the court to impose sanctions. Sanctions can range from relatively mild (such as an order to disclose the new evidence now while giving the other side a continuance to decide how to deal with it) to very severe (dismissal of a plaintiff s case, or preventing a defendant from presenting a defense). In between these extremes are sanctions such as an order that a party is not allowed to present a witness it has not disclosed or to offer evidence it has held back. The sanction imposed is usually up to the district judge and will depend on how bad the violation is, how much it has hurt the other side's case, etc. Appeals courts rarely reverse a district judge's d decision on sanctions. Daval Steel Products v. MN Fakredine, 951 F.2d 1357 (2nd Cir. 1991). See the discussion and case citations at page 1365.

In most discovery disputes, the court will not impose sanctions unless you have obtained an order requiring the other side to produce the requested material. See Rule 37(a) and my last column. There is one important exception to this: Failure "without substantial justification" to make mandatory disclosures (in districts where they are required) carries with it a presumptive sanction even if there has been no order to compel: The party failing to disclose "shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed." Rule 37(b). This rule goes on to say that the court can impose a different or additional sanction after a hearing, but the usual sanction for failure to make mandatory disclosures is that the undisclosed evidence cannot be used.

Of course, if the defendant in your case fails to disclose evidence favorable to you, then you should ask the court for a different sanction, such as full disclosure and a continuance to decide how to use the evidence. In these circumstances, obviously the court should not rely on the usual sanction of excluding the evidence.

This discussion of discovery issues is designed to provide general information about discovery and should not be used as specific advice for your case. You should do your own research based on the facts of your case in deciding how to proceed.

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