Concept
Choosing the Right Device
Discovery devices, subpoenas, and use of depositions
Discovery Devices and Subpoenas
Choosing the Right Device
The Federal Rules of Civil Procedure give a party several discovery devices, and each reaches a different set of people for a different kind of information. The most flexible is the oral deposition: a party may question any person, including a party, by oral questions, usually without leave of court, and a subpoena under Rule 45 compels the deponent's attendance.1 The other devices reach less far. Interrogatories are written questions that one party serves on another, limited to 25 including all discrete subparts.2 A physical or mental examination requires a court order and runs only against a party whose condition is in controversy, or against a person in that party's custody or under its legal control.3 A nonparty, who stands beyond interrogatories and examinations, can be compelled by subpoena to attend and testify, to produce designated documents, electronically stored information, or tangible things, or to permit inspection of premises.4
Later sections take up the remaining devices: the deposition on written questions; requests that a party produce documents and electronically stored information, among other things;5 and requests that a party admit facts, the application of law to fact, or opinions about either.6 Each device carries its own limits, and a limit on one says nothing about another. A deposition is capped by time, at one day of 7 hours unless the parties stipulate or the court orders otherwise, while interrogatories are capped by number.7 A cap borrowed from the wrong device is an error that every later step inherits.
Every fact pattern therefore begins with two questions: which device do the facts describe, and who is the target? The party/nonparty line comes first because it decides which devices exist against a given person. The second subsection then collects what the devices share, so that the limits in later sections read as variations on one frame.
Who Each Device Reaches
A deposition reaches furthest. A party may depose any person, including a party, and a subpoena compels the deponent's attendance.8 The same is true of a deposition on written questions, which may be addressed to a party or to a nonparty who has relevant information.9 Every other device is easiest to learn by asking how much narrower its target group is.
The line that matters is party versus nonparty. A party-deponent needs only a notice, and no subpoena is required.10 A nonparty who will not cooperate must be subpoenaed, because witnesses like that need not talk to the lawyer at all, and a deposition subpoena must set the deposition no more than 100 miles from the nonparty's residence or place of business.11 The subpoena commands the person to attend and testify, to produce documents, electronically stored information, or tangible things in that person's possession, custody, or control, or to permit inspection of premises.12 When the deponent is an organization, the examiner names the entity and describes the matters for examination with reasonable particularity. The organization then designates the officers, directors, managing agents, or other consenting persons who will testify, whether it received a notice as a party or a subpoena as a nonparty.13
The other devices run against parties alone, with one extension in Rule 35. The table collects the reach of each.
| Device | Who it may be directed to |
|---|---|
| Oral or written-question deposition | Any person; a party needs only notice, a nonparty a subpoena14 |
| Rule 45 subpoena | Any person, to attend and testify, to produce, or to permit inspection15 |
| Interrogatories | Another party only16 |
| Rule 34 request | Another party only; a nonparty only through Rule 4517 |
| Request for admission | Another party only18 |
| Rule 35 examination | By court order, a party whose condition is in controversy or a person in that party's custody or legal control19 |
A Rule 34 request asks a party for documents within its custody or control, and it must describe them by category.20 The rule itself adds that a nonparty can be compelled to produce or to permit inspection only as Rule 45 provides.21 Rule 35 alone looks past the party, to a person in the party's custody or under its legal control, and it leaves strangers to the case untouched.22
A mis-aimed device shows the line at work in Hickman v. Taylor. The petitioner sought documents and answers that the tug owners' counsel, Fortenbaugh, held. He did not, and could not under Rule 33, address interrogatories to Fortenbaugh. He directed his interrogatories neither to the owners nor to Fortenbaugh by way of deposition, so Rule 26 never came into operation. A Rule 34 order could not have run against Fortenbaugh either, because Rule 34, like Rule 33, is limited to parties to the proceeding and so excludes their counsel or agents.23 The Court nonetheless declined to decide the case on the wrong choice of device. It would not require the petitioner to "go through the empty formality of pursuing the right procedural device" only to reach the same basic problem, and it turned to the substance after noting the proper procedure. It added that in other situations a failure to follow a specific rule may be important or decisive.24 A deposition remains open against counsel as against any person, and a deposition subpoena may carry a command to produce documents.25 An exam answer should flag a mis-aimed device as a defect and should not count on a court to excuse it.
What happens when the same written questions go to a party and to an eyewitness on the same day?
The interrogatory rule authorizes service on another party and offers no way to send interrogatories to a nonparty witness.26 Alewife's route to Trout's account is a deposition backed by a subpoena. That route is more formal than a friendly conversation, and a subpoenaed witness may arrive reluctant and predisposed against the party who served him. Because witnesses like Trout need not cooperate, however, a subpoena is often the only way to get them to talk. A deposition also has value for a willing witness, since it puts the account on the record.27
Documents follow the same line, and party status is the only variable that changes.
Rule 45 itself permits both forms, and it lets the subpoena specify the form in which electronically stored information is to be produced.28 The analysis is short: identify who holds the information, ask whether that person is a party, and let the answer eliminate every device that cannot reach a nonparty.
Shared Mechanics and Sequencing
The devices look different rule by rule, but they work as one system, and the Court described that system in Hickman v. Taylor. The discovery instruments serve to narrow and clarify the basic issues between the parties and to ascertain the facts, or information about their existence or whereabouts, so that civil trials no longer need be carried on in the dark.30 The devices pursue those aims against different targets, which is why the choice among them matters. The shared aims also explain why they share a frame of scope, operation, and certification. Learning that frame once turns each device's limits into a variation on one pattern.
Scope comes first. Rule 26 is basic to every device: it holds the central provisions on what may be discovered, and with one exception the other discovery rules incorporate them by reference.31 The incorporation shows on the face of the rules. An interrogatory may relate to any matter inquired into under Rule 26(b),32 and requests for more interrogatories or more deposition time are measured against Rule 26(b)(1) and (2).33 The material sought must be relevant and unprivileged whichever device a party uses, and the court's power to limit discovery that is cumulative, duplicative, or unduly burdensome applies across the methods.34
Second, the devices operate without a judge. Except for Rule 35 examinations, each works when a party serves a notice or request, and the court enters only if the recipient refuses to comply.35 Rule 35 is the exception: the court where the action is pending may order a party whose mental or physical condition is in controversy to submit to examination by a suitably licensed or certified examiner.36 Parties often stipulate to appropriate examinations when a condition is in controversy,37 but a party who wants an examination that the other side refuses can obtain it only by court order.
Third, counsel's signature disciplines a system in which no judge screens the paper. Every request for discovery of these types, and every response or objection, must be signed by the lawyer who prepared it under Rule 26(g).38 Rule 36 states the same requirement from the responding side: a matter is admitted unless the responding party serves a written answer or objection signed by the party or its attorney.39 Rule 26(g) also imposes an affirmative duty to engage in discovery responsibly and encourages Rule 11-style sanctions against those who abuse it.40 The fourth shared feature, that only depositions reach beyond parties, is the line drawn above.
The Rules leave the order of use open. Beyond the required initial disclosures, the disclosures about testifying experts, and certain pretrial disclosures, discovery is discretionary and party-driven, and no sequence is mandated.42 Practice nonetheless runs from locating evidence to testing it. Suppose a plaintiff sues Toyota over a vehicle's design. The plaintiff may depose the lead design engineer first, and nothing in the Rules forbids it. The plaintiff would then question without the design documents and defect summaries that shape questions and pin down answers, and without documents the witness could identify to help establish their authenticity for trial.43 A lawyer who first obtains those materials asks sharper questions.
Sequences vary. Requests for admission tend to come last, because once other discovery is concluded a party can use them to authenticate documents it plans to offer at trial and to narrow the issues.45 What should an essay say about counsel who deposes the key engineer before serving any written discovery? The deposition is permitted, because no rule requires written discovery to come first. The criticism is one of preparation, since counsel may have locked in answers without the documents needed to test them.46
Sequencing also manages the risk of the record. Discovery is taken with great freedom, but the right to take statements and the right to use them at trial are kept distinct, and restrictions on the use of discovery's products preserve traditional methods of trial.47 A deposition also fixes testimony, because any party may use it to contradict or impeach the deponent's testimony as a witness.48 Informal interviews remain important in trial preparation, but a nonparty who has not been subpoenaed is generally free to refuse one, and that refusal is the point at which the formal devices become necessary.49