Discovery Interrogatories from Defendant to Plaintiff with Production Requests
Note: This summary is not intended to be an all inclusive
summary of discovery law in Montana, but does include basic and other information.
Definitions
Discovery: A procedure designed to allow disclosure
of information between Plaintiffs and Defendants. Written questions,
oral questioning, document production and admissions requests are generally
allowed. Discovery was designed to to prevent trial by ambush.
Interrogatories: Written questions from Plaintiff to
Defendant, or from Defendant to Plaintiff. The questions are mailed to
the Plaintiff, Defendant or the attorney for response in writing.
The answers or responses are usually due between 20-30 days.
Deposition: A procedure where verbal questions are
asked a Plaintiff or Defendant for immediate response. Depositions
are usually recorded by a court reporter, who swears the person to tell
the truth before questioning begins.
Production of Documents: The method of obtaining documents
from the other party relevant to the case such as all documents a party
intends to introduce at trial.
Requests for Admissions: Written questions where you
request the other party to admit or deny some relevant fact.
Objections: Objections may be made to all discovery
questions if the questions are not relevant, or likely to lead to the discovery
of relevant evidence.
Civil Procedure Rules: Virtually all states have adopted
a version of civil procedure rules which include rules dealing with discovery.
Montana Rules of Civil Procedure
The Montana Rules of Civil Procedure are contained in the Montana
Code Annotated (MCA), Title 25 Chapters 1-20. The discovery rules are specifically
found in Chapter 20. The discovery rules also apply in divorce actions.
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.
Rule 26(a)
Scope: Unless otherwise limited by order of the court in
accordance with these rules, the scope of discovery is as follows:
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). Rule 26(b)
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. Rule 26(b)(4)
Depositions
Before Whom Depositions May Be Taken: Within the state of
Montana, depositions shall be taken before a person authorized by the laws
of this state to administer oaths; without the state, but within the United
States, or within a territory or insular possession subject to the dominion
of the United States, depositions shall be taken before a person authorized
to administer oaths by the laws of this state, the United States, or of
the place where the examination is held; within or without the state of
Montana, depositions may also be taken before a person appointed by the
court in which the action is pending, which persons so appointed shall
have the power to administer oaths and take testimony. Rule 28(a)
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 his commission to administer
any necessary oath and take testimony, or (3) pursuant to 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. Rule 28(b)
Stipulations: 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. Rule 29
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 4D, 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.
Rule 30(a)
(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 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 court may upon motion order that the testimony at
a deposition be recorded by other than stenographic, audio-visual, or tape
recorded means, in which event the order shall designate 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.
If the order is made, a party may nevertheless arrange to have a stenographic
transcription made at the party's own expense.
(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 nonparty 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.
(8) Unless otherwise ordered or stipulated, each deposition
shall not last more than eight hours nor take place on more than one day.
Additional time may be obtained for good cause by leave of court. Rule 30(b)
Interrogatories
Any party may serve upon any other party written interrogatories
to be answered by the parties 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. Unless otherwise ordered or stipulated, no party may serve
on any other party more than 50 interrogatories in the aggregate. Each
subpart shall be counted as a separate interrogatory. Additional interrogatories may be submitted for good cause only by leave of
court.
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 party answering the interrogatories
shall set forth a verbatim recopy of each of the interrogatories, followed
by the answer thereto. 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. Rule 33(a)
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 pretrial
conference or other later time. Rule 33(b)
Production
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). Rule 34(a)
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. Rule 34(b)
Physical and Mental Examinations of Persons
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. Rule 35(a)
(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 the detailed written
report of the examiner setting out the examiner's findings, including results
of all tests made, diagnosis 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) Either by (1) requesting and obtaining a report of the examination
ordered as provided herein, or by taking the deposition of the examiner,
or by (2) commencing an action or asserting a defense which places in issue
the mental or physical condition of a party to the action, the party examined
or a party to the action waives any privilege the party may have in that
action or any other action involving the same controversy, regarding the
testimony of every person who has treated, prescribed, consulted, or examined
or may thereafter treat, consult, prescribe or examine, such party in respect
to the same mental or physical condition; but such waiver shall not apply
to any treatment, consultation, prescription or examination for any mental
or physical condition not related to the pending action. Upon motion seasonably
made, and upon notice and for good cause shown, the court in which the
action is pending, may make an order prohibiting the introduction in evidence
of any such portion of the medical record of any person as may not be relevant
to the issues in the pending action.
(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. Rule 35(b)
Requests for Admissions
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 answers 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 pretrial 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. Rule
36(a)
Compel 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. Rule 37.
Domestic Actions Discovery Notes
If you require extra time to respond to discovery, you should ask
the other side for an extension in writing. It may also be necessary
to enter an order granting the extension to protect your rights.
Discovery questions are limited in number so select the most important
questions to ask the other side. Don't waste your requests writing
questions that you already know the answer to.
