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 Alaska, 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.
Alaska Rules of Civil Procedure:
Alaska has adopted the Alaska Rules of Civil Procedure which contain
rules governing discovery.
General Discussion of Discovery
Alaska requires a pre-discovery disclosure without the other party
having to request the information through formal discovery methods.
The disclosure rule provides:
Rule 26. General Provisions Governing Discovery; Duty of Disclosure.
(a) Required Disclosures; Methods to Discover Additional Matter.
Disclosure under subparagraphs (a)(1), (2), and (3) of this rule is required
in all civil actions, except those categories of cases exempted from the
requirement of scheduling conferences and scheduling orders under Civil
Rule 16(g), adoption proceedings, and prisoner litigation against the state
under AS 09.19.
(1) Initial Disclosures. Except to the extent otherwise directed
by order or rule, a party shall, without awaiting a discovery request,
provide to other parties:
(A) the factual basis of each of its claims or defenses;
(B) the name and, if known, the address and telephone number of
each individual likely to have discoverable information relevant to disputed
facts alleged with particularity in the pleadings,identifying the subjects
of the information and whether the attorney-client privilege applies;
(C) the name and, if known, the address and telephone number of
each individual who has made a written or recorded statement and, unless
the statement is privileged or otherwise protected from disclosure, either
a copy of the statement or the name and, if known, the address and telephone
number of the custodian;
(D) subject to the provisions of Civil Rule 26(b)(3), a copy of,
or a description by category and location of, all documents, data compilations,
and tangible things that are relevant to disputed facts alleged with particularity
in the pleadings;
(E) subject to the provisions of Civil Rule 26(b)(3), all photographs,
diagrams, and videotapes of persons, objects, scenes and occurrences that
are relevant to disputed facts alleged with particularity in the pleadings;
(F) each insurance agreement under which any person carrying on
an insurance business may be liable to satisfy part or all of a judgment
which may be entered in the action or to indemnify or reimburse for payments
made to satisfy the judgment; and
(G) all categories of damages claimed by the disclosing party, and
a computation of each category of special damages, making available for
inspection and copying as under Rule 34 the documents or other evidentiary
material, not privileged or protected from disclosure, on which such claims
are based, including materials bearing on the nature and extent of injuries
suffered.
Unless otherwise directed by the court, these disclosures shall
be made at or within 10 days after the meeting of the parties under paragraph
(f). A party shall make its initial disclosures based on the information
then reasonably available to it and is not excused from making its disclosures
because it has not fully completed its investigation of the case or because
it challenges the sufficiency of another party's disclosures or because
another party has not made its disclosures.
Discovery Methods: Parties may obtain discovery by one or
more of the following methods: (1) depositions upon oral examination or
written questions; (2) written interrogatories; (3) production of documents
or things or permission to enter upon land or other property, for inspection
and other purposes; and (4) requests for admission.
Scope: 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. 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.
Limitations. The court may alter the limits in these rules on the
number of depositions and interrogatories, the length of depositions under
Rule 30, and the number of requests under Rule 36. The frequency or extent
of use of the discovery methods otherwise permitted under these rules 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 burden or expense
of the proposed discovery outweighs its likely benefit, taking into account
the needs of the case, the amount in controversy, the parties' resources,
the importance of the issues at stake in the litigation, and the importance
of the proposed discovery in resolving the issues.
Experts: A party may depose any person who has been
identified as an expert whose opinions may be presented at trial. If a
report from the expert is required under section (a)(2)(B), the deposition
shall not be conducted until after the report is provided.
Under the mandatory disclosure of Rule 26, a written report prepared
and signed by the expert witness shall be provided as to all experts to
be used at trial. The report shall contain a complete statement of all
opinions to be expressed and the basis and reasons therefor; the data or
other information considered by the witness in forming the opinions; any
exhibits to be used as a summary of or support for the opinions; the qualifications
of the witness, including a list of all publications authored by the witness
within the preceding ten years; the compensation to be paid for the study
and testimony; and a listing of any other cases in which the witness has
testified as an expert at trial or by deposition within the preceding four
years.
Timing of Discovery Non-Exempted Actions.
In an action in which disclosure is required under Rule 26(a), a
party may serve up to ten of the thirty interrogatories allowed under Rule
33(a) at the times allowed by section (d)(2)(C) of this rule. Otherwise,
except by order of the court or agreement of the parties, a party may not
seek discovery from any source before the parties have met and conferred
as required by paragraph (f).
Timing of Discovery Exempt Actions:
In actions exempted from disclosure under Rule 26(a), discovery
may take place as follows:
(A) For depositions upon oral examination under Civil Rule 30, a
defendant may take depositions at any time after commencement of the action.
The plaintiff must obtain leave of court 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 by publication if authorized,
except that leave is not required (i) if a defendant has served a notice
of taking deposition or otherwise sought discovery, or (ii) the plaintiff
seeks to take the deposition under Civil Rule 30(a)(2)(C).
(B) For depositions upon written questions under Civil Rule 31,
a party may serve questions at any time after commencement of the action.
(C) For interrogatories, requests for production, and requests for
admission under Civil Rules 33, 34, and 36,discovery requests may be served
upon the plaintiff at any time after the commencement of the action, and
upon any other party with or after service of the summons and complaint
upon that party.
(3) Sequence of Discovery. Unless the court upon motion, for the
convenience of parties and witnesses and in the interests of justice, orders
otherwise, methods of discovery may be used in any sequence, and the fact
that a party is conducting discovery, whether by deposition or otherwise,
shall not operate to delay any other party's discovery.
Supplementation of Responses: A party who has made a disclosure
under paragraph (a) or Civil Rule 26.1(b) or responded to a request for
discovery with a disclosure or response is under a duty to supplement or
correct the disclosure or response to include information thereafter acquired
if ordered by the court or in the following circumstances:
(1) A party is under a duty to supplement at appropriate intervals
its disclosures under paragraph (a) if the party learns that in some material
respect the information disclosed is incomplete or incorrect and if the
additional or corrective information has not otherwise been made known
to the other parties during the discovery process or in writing. With respect
to testimony of an expert from whom a report is required under subdivision
(a)(2)(B) the duty extends both to information contained in the report
and to information provided through a deposition of the expert.
(2) A party is under a duty seasonably to amend a prior response
to an interrogatory, request for production, or request for admission if
the party learns that the response is in some material respect incomplete
or incorrect and if the additional or corrective information has not otherwise
been made known to the other parties during the discovery process or in
writing. Rule 26(e)
Before Whom Depositions May Be Taken: Within the State. Within
the state, depositions shall be taken before an officer authorized by the
laws of this state to administer oaths, or before a person appointed by
the court in which the action is pending. A person appointed has power
to administer oaths and take testimony.
Without the State but Within the United States. 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 an officer authorized to administer oaths by the laws of the United
States or of the place where the examination is held.
Stipulations: Unless otherwise directed by the court, 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 that when so taken may be used like other depositions, and
(2) modify other procedures governing or limitations placed upon discovery,
except that stipulations extending the time provided in Rules 33, 34, and
36 for responses to discovery may, if they would interfere with any time
set for filing of motions, for hearing of a motion, or for trial, be made
only with the approval of the court.
Rule 30 Depositions:
(a) When Depositions May Be Taken; When Leave is
Required:
(1) A party may take the testimony of any person, including a
party,by deposition upon oral examination without leave of court
except as provided in paragraph (2). The attendance of witnesses
may be compelled by subpoena as provided in Rule 45.
(2) A party must obtain leave of court, which shall be granted to
the extent consistent with the principles stated in Rule 26(b)(2), if the
person to be examined is confined in prison or if, without the written
stipulation of the parties,
(A) a proposed deposition would result in more than three depositions
being taken under this rule or Rule 31 by the plaintiffs, or by the
defendants, or by third-party defendants, of witnesses other than:
(i) parties, which means any individual identified as a party in
the pleadings and any individual whom a party claims in its disclosure
statements is covered by the attorney- client privilege;
(ii) independent expert witnesses expected to be called at trial;
(iii) treating physicians; and
(iv) document custodians whose depositions are necessary to secure
the production of documents or to establish an evidentiary foundation
for the admissibility of documents;
(B) the person to be examined already has been deposed in the case;
or
(C) a party seeks to take a deposition before the time specified
in Rule 26(d) unless the notice contains a certification,with supporting
facts, that the person to be examined is expected to leave Alaska and be
unavailable for examination in this state unless deposed before that time.
(b) Notice of Examination: General Requirements; Method of 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) Reserved.
(3) Reserved.
(4) Reserved.
(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 quest.
(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.
Rule 30.1. Audio and Audio-Visual Depositions.
(a) Authorization of Audio-Visual Depositions.
(1) Any deposition upon oral examination may be recorded by audio
or audio-visual means without a stenographic record. Any party may make
at the party's own expense a simultaneous stenographic or audio record
of the deposition. Upon request and at the expense of the requesting party,
any party is entitled to an audio or audio-visual copy of the audio-visual
recording.
(2) The audio or audio-visual recording is an official record of
the deposition. A transcript prepared in accordance with Rule 30(c) is
also an official record of the deposition.
(3) On motion for good cause the court may order the party taking,
or who took, a deposition by audio or audio-visual recording to furnish
at that party's expense a transcript of the deposition.
(b) Use. An audio or audio-visual deposition may be used for any
purpose and under any circumstances in which a stenographic deposition
may be used.
(c) Notice. The notice for taking an audio or audio-visual deposition
and the subpoena for attendance at that deposition must state that the
deposition will be recorded by audio or audio-visual means. If a court
reporter will not be used to record the deposition, the notice must also
state this fact.
(d) Procedure. The following procedure must be observed in recording
an audio or audio-visual deposition:
(1) The deposition must begin with an oral statement which includes:
(A) the operator's name and business address;
(B) the name and business address of the operator's employer;
(C) the date, time, and place of the deposition;
(D) the caption of the case;
(E) the name of the witness;
(F) the party on whose behalf the deposition is being taken; and
(G) any stipulations by the parties.
(2) Counsel shall identify themselves on the recording.
(3) The oath must be administered to a witness on the recording.
(4) The videotaped deposition shall depict the witness in a waist-up
shot, seated at a table. The camera and lens shall not be varied except
as may be necessary to follow natural body movements of the witness or
to present exhibits or describe evidence that is being used during the
deposition.
(5) If the length of the deposition requires the use of more than
one recording unit, the end of each unit and the beginning of each succeeding
unit must be announced on the recording.
(6) At the conclusion of the deposition, a statement must be made
on the recording that the deposition is concluded. A statement may be made
on the recording setting forth any stipulations made by counsel concerning
the custody of the recording and exhibits or other pertinent matters.
(7) Audio depositions must be indexed by a brief written log notation
of the recorder counter number at the beginning of each examination whether
direct, cross, redirect, etc. The log must be attached to the tape.
(8) Audio-visual depositions may be indexed by a time generator
or similar method.
(9) An objection must be made as in the case of stenographic depositions.
(10) Unless otherwise stipulated by the parties, the original audio
or audio-visual recording of a deposition shall be held by the party noticing
the deposition.
(11) If the court issues an editing order, the original audio or
audio-visual recording must not be altered.
(e) Costs. The reasonable expense of recording, editing, and using
an audio or audio-visual deposition may be taxed as costs.
(f) Standards. The Administrative Director may establish standards
for audio or audio-visual equipment and guidelines for taking and using
audio or audio-visual depositions. Incompatible audio or audio-visual recordings
must be conformed to the standards at the expense of the proponent. Conformed
recordings may be used as originals.
Note to Civil Rule 30.1(f): The Administrative Director has
not established standards for audio or audio-visual equipment or guidelines
for taking and using audio or audio-visual depositions.
Rule 33 Interrogatories
a) Availability: 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, a partnership, an
association, or governmental agency, by any officer or agent, who shall
furnish such information as is available to the party. Without leave of
court or written stipulation, a party may serve only thirty interrogatories
upon another party, including all discrete subparts. This limit includes
interrogatories served under Rule 26(d)(1). Leave to serve additional interrogatories
shall be granted to the extent consistent with the principles of Rule 26(b)(2).
Without leave of court or written stipulation, interrogatories may not
be served before the time specified in Rule 26(d). There shall be sufficient
space provided so that answers to the interrogatories propounded may be
inserted thereon.
(b) Answers and Objections:
(1) Each interrogatory shall
be answered separately and fully in writing under oath, unless it is objected
to, in which event the objecting party shall state the reasons for objection
and shall answer to the extent the interrogatory is not objectionable.
(2) The answers are to be signed by the person making them, and
the objections signed by the attorney making them.
(3) 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. A shorter or longer time may be directed
by the court or, in the absence of such an order, agreed to in writing
by the parties subject to Rule 29.
(4) All grounds for an objection to an interrogatory shall be stated
with specificity. Any ground not stated in a timely objection is waived
unless the party's failure to object is excused by the court for good cause
shown.
(5) 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.
(c) Scope; Use at Trial. Interrogatories may relate to any matters
which can be inquired into under Rule 26(b)(1), 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.
(d) 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, or from a compilation, abstract or
summary based thereon, 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.
Rule 34 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 his 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 useable form), or
to inspect and copy, test, or sample any tangible things which constitute
or contain matters within the allowed discovery scope 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 allowed discovery scope.
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 thirty days after the service of the request, except that
a defendant may serve a response within forty-five 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.
When producing documents, the producing party 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 that call for
their production.
Rule 36 Requests for Admissions
(a) Request 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)(1)
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. Without leave of court or written
stipulation, requests for admission may not be served before the time specified
in Rule 26(d).
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 or as the parties may agree to in writing, subject to Rule 29, 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.
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 pretrial conference
or at a designated time prior to trial.
(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 provisions of Rule 16 governing
amendment of a pretrial 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 the 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 Compel Discovery
A party, upon reasonable notice to other parties and all persons
affected thereby, may apply for an order compelling discovery.
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.
