Local Rule Rule 104: Discovery

RULE 104. DISCOVERY

1. Limitation on Number of Requests for Production and Requests for Admission

Unless otherwise ordered by the Court, or agreed upon by the parties, no party shall serve upon any other party, at one (1) time or cumulatively, more than thirty (30) requests for production, or more than thirty (30) requests for admission (other than requests propounded for the purpose of establishing the authenticity of documents or the fact that documents constitute business records), including all parts and sub-parts.

2. Timely Written Discovery Requests Required

Interrogatories, requests for production, motions for physical and mental examination, and written deposition questions must be made at a sufficiently early time to assure that they are answered before the expiration of the discovery deadline set by the Court. Unless otherwise ordered by the Court, no discovery deadline will be extended because written discovery requests remain unanswered at its expiration.

3. Discovery to Proceed Despite Existence of Disputes

Unless otherwise ordered by the Court, the existence of a discovery dispute as to one (1) matter does not justify delay in taking any other discovery.

4. Conference of Counsel and Commencement of Discovery

Unless otherwise ordered by the Court or agreed upon by the parties, the conference of counsel required by Fed. R. Civ. P. 26(f) need not take place and discovery shall not commence and disclosures need not be made until a scheduling order is entered.

5. Discovery Materials Not to be Filed with Court

Unless otherwise ordered by the Court, written discovery requests, responses thereto, notices of service of discovery requests or responses, depositions, and disclosures under Fed. R. Civ. P. 26(a)(1) and (2) shall not be filed with the Court. The party propounding written discovery or taking a deposition shall be responsible for retaining the original copies of the discovery materials (including the certificates of service) and shall make them available for inspection by any other party.

6. Format of Responses to Interrogatories and Requests for Production

Responses to interrogatories and requests for production shall set forth each interrogatory or request followed by the answer and/or a brief statement of the grounds for objection, including a citation of the main applicable authorities (if any).

7. Conference of Counsel Required

Counsel shall confer with one another concerning a discovery dispute and make a reasonable effort to resolve the differences between them. The Court will not consider any discovery motion unless the moving party has filed a certificate reciting (a) the date, time, and place of the discovery conference, and the names of all persons participating therein, or (b) counsel's attempts to hold such a conference without success; and (c) an itemization of the issues requiring resolution by the Court. A "reasonable effort" means more than sending an email or letter to the opposing party. It requires that the parties meet in person or by video or telephonic means for a reasonable period of time in a good faith effort to resolve the disputed matter.

8. Procedure Regarding Motions to Compel

The following procedure shall be followed in litigating motions to compel answers to interrogatories and requests for production or entry upon land as to which a response has been served. This procedure shall not govern motions to compel (a) answers to interrogatories or to requests for production or entry upon land where no responses at all have been served; (b) answers to deposition questions; or (c) responses to discovery requests directed to a non-party. Such latter motions shall be filed with the Court and treated as any non-discovery motion, except that, as to disputes concerning discovery directed to a non-party, unless otherwise directed by the Court, the Court will not consider the motion until a conference has been held under L.R. 104.8.b and a certificate has been filed under L.R. 104.8.c.

a) Service of Motions and Memoranda

If a party who has propounded interrogatories or requests for production is dissatisfied with the response to them and has been unable to resolve informally (by oral or written communications) any disputes with the responding party, that party shall serve a motion to compel within thirty (30) days of the party's receipt of the response. The memorandum in support of the motion shall set forth, as to each response to which the motion is directed, the discovery request, the response thereto, and the asserted basis for the insufficiency of the response. The memorandum shall be succinct and need not include citation to legal authorities unless such citation is necessary in order to understand the issues presented. The opposing party shall serve a memorandum in opposition to the motion within fourteen (14) days thereafter. The moving party shall serve any reply memorandum within fourteen (14) days thereafter. The parties shall serve motions and memoranda under L.R. 104.8 in accordance with Fed. R. Civ. P. 5(a) and shall not serve them through the Court's electronic filing system nor file with the Court notices of service of the motion and memoranda. Extensions of time given by the parties to one another to serve any document hereunder need not be approved by the Court, provided, however, that no extension of time limits set in any scheduling order entered by the Court shall be made without the Court's prior approval.

b) Conference of Counsel

Counsel are encouraged to confer with one another before or immediately after a motion to compel is served. If they are unable to resolve their disputes, counsel must hold the conference required by L.R. 104.7 after serving upon one another all of the documents relating to the motion to compel.

c) Filing of Certificate of Conference and Motions and Memoranda

i) Cases Subject to Electronic Filing. If counsel fail to resolve their differences during their conference, the party seeking to compel discovery shall file the certificate required by L.R. 104.7, and shall append thereto a copy of the motion and memoranda previously served by the parties under L.R. 104.8.a.

ii) Cases Exempt from Electronic Filing. If counsel fail to resolve their differences during their conference, the party seeking to compel discovery shall file (i) the certificate required by L.R. 104.7 and (ii) the original and two (2) copies of its motion and memorandum concerning the motion to compel and three (3) copies of all other memoranda concerning the motion.

9. [Reserved for Future Use]

10. Actions and Witnesses Exempted from Provisions of Fed. R. Civ. P. 26(a)(2)(B)

Unless otherwise ordered by the Court, a party must provide the disclosures required by Fed. R. Civ. P. 26(a)(2)(B) only as to experts retained or specially employed by a party to provide expert testimony. The disclosures need not be provided as to hybrid fact/expert witnesses such as treating physicians. The party must disclose the existence of any hybrid fact/expert witness pursuant to Fed. R. Civ. P. 26(a)(2)(A), and disclose the subject matter on which the witness is expected to present evidence under Fed. R. Evid. 702, 703, or 705, as well as a summary of the facts and opinions to which the hybrid fact/expert witness is expected to testify, pursuant to Fed. R. Civ. P. 26(a)(2)(C). In addition, an adverse party may obtain the opinions of such witnesses (to the extent appropriate) through interrogatories, document production requests, and depositions.

11. Fees and Costs

a) Interpretation of Fed. R. Civ. P. 26(b)(4)(E)

Unless otherwise ordered by the Court, any reasonable fee charged by an expert for the time spent in a discovery deposition and in traveling to and from the deposition shall be paid by the party taking the deposition. The fee charged by the expert for time spent preparing for the deposition shall be paid by the party designating the expert. The expert may not charge an opposing party for a discovery deposition a fee at any hourly rate higher than the rate that he or she charges for the preparation of his or her report.

b) Limitation on the Amount of Fees of Treating Physician

Unless otherwise ordered by the Court, a treating physician shall not charge a fee higher than the hourly fee that he or she customarily charges for in-office patient consultation or $325 per hour, whichever is lower, for any work that he or she performs in connection with any discovery matter or for the taking of a de bene esse deposition. Any party noticing a deposition of a treating physician shall (after conferring with opposing counsel) advise the physician of the number of hours that will be required for the deposition (both on direct and cross examination). The treating physician may not charge for any hours exceeding this estimate, provided that the deposition is completed within the estimate, and may terminate the deposition when the estimated time has elapsed.

c) Limitation on Cost of Photocopying

Unless otherwise ordered by the Court, the amount that a party or third-party witness may charge as a photocopying expense when producing documents in response to a discovery request or subpoena shall not exceed the rate established by the Court for taxation of costs.

12. Familiarity with Discovery Guidelines

Counsel should be familiar with the Discovery Guidelines that are an appendix to these Rules.

13. Proposed Confidentiality Orders

Any proposed confidentiality order shall include (a) a definition of confidentiality consistent with Fed. R. Civ. P. 26(c); (b) a method for challenging particular designations of confidentiality with the burden remaining on the party seeking confidentiality to justify it under Rule 26(c); (c) a provision that whenever materials subject to the confidentiality order (or any pleading, motion or memorandum referring to them) are proposed to be filed in the Court record under seal, the party making such filing must simultaneously submit a motion and accompanying order pursuant to L.R. 105.11; and (d) a provision permitting the Clerk to return to counsel or destroy any sealed material at the end of the litigation.

14. Stipulated Order Regarding Non-Waiver of Attorney-Client Privilege and Work Product Protection

Counsel should be familiar with, and should consider the applicability and propriety of entering into and submitting for the Court's approval and entry, the Stipulated Order Regarding Non-Waiver of Attorney-Client Privilege and Work Product Protection that is included in Appendix D.