Fact scenario: Tony worked for ABC Company
Short Answer
- Identify the two individuals who must sign responses to Interrogatories and the reason each is signing.
The two individuals who must sign responses to interrogatories are:
- Plaintiff
- Attorney
Under Rule 33, responses to interrogatories must be verified and signed by the person answering the interrogatory, not only by the party’s attorney. The person responding to interrogatories (plaintiff) must sign them. The attorney who objects must sign any objections. Requiring the person answering to interrogatories to sign them under an oath serves the key purpose of ensuring that the party attests to the truth of the responses. On the other hand, an attorney’s signature satisfies defendant’s obligations in responding to the plaintiff’s interrogatories.
- Explain how relevance for discovery is different than relevance needed for evidence to be admitted at trial?
Unless otherwise by court order limitation, the scope for discovery states: parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s defense or claim and proportional to the case needs, considering the significance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the benefit of the discovery in resolving the issues, and whether the expense of burden of the proposed discovery outweighs its possible benefit. Information within this discovery scope need not be admissible in evidence to be discoverable. This is how relevance for discovery differs to the relevance required for evidence to be admissible at trial.
- Identify the three types of written discovery and give an example of each.
Interrogatories: These are questions asked by one side to the other, requesting answers to questions relevant to the matter at hand. For example, pre-printed “form” Interrogatories. Questions can range from general to specific.
Request for admission: As a type of written discovery, requests for admission is a very powerful tool. They include questions asked by one party to another, seeking an affirmative yes or No, or Admit or Deny. Any failure to answer the questions, provision of false answers, or late answers is penalized. A good example of request for admission is asking a party to admit or deny certain facts pertaining to the case.
Request for production: These are written requests by one party to the other, requiring production of documents or evidence which the requesting side believes is pertinent to the matter at hand. For example, a signed memoranda.
- Explain two reasons why it is important to tell someone who you are preparing for a deposition that he/she should pause for several seconds before answering a question. (6)
The two important reasons why telling someone who you are preparing for deposition to pause for several seconds before responding to a question are:
- To ensure that every answer is formal and controlled
- To ensure that the person is controlling the tempo of your deposition
Prior to answering a question, one needs to look straight to the attorney asking the question, listen carefully, pause at least 2-3 seconds to think, and then provide a concise, brief, and calm answer in a polite manner. For most questions, “no sir,” “yes sir,” or “I don’t know” is enough. Speaking too much is absurd and unnecessary. Thus, person(s) should use this tactic with every question for purposes of formality and control of the deposition’s tempo.
- Explain what has to be done when scheduling the deposition of a party and what has to be done differently when scheduling the deposition of a witness.
Scheduling the deposition of a party differs from scheduling the deposition of a witness. When scheduling the deposition of a party, a subpoena is not required to compel the party testify at a deposition. Rather, the party who seeks the deposition may move for discovery sanctions if the other party fails to appear for a schedule deposition. However, if the witness is not a party, a subpoena may be needed to compel attendance. The subpoena for taking depositions is issued by the Clerk of the Court. Unlike a party, a witness who fails to comply with a subpoena may be held contempt of court.
- If one party wishes to obtain copies of the other party’s medical bills and records, what are two different methods that could be used? Explain your answer.
Subpoena: A person’s right to confidentiality is overridden when medical records are requested under a subpoena. So, one party may obtain copies of the other party’s medical bills and records if the other party is compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been served. Failure to comply with a subpoena can result in contempt of court.
Consent/authorization by the other party: One party can obtain copies of the other party’s medical bills and records if permitted by written authorization from the other party.
- Under Federal Rule Civil Procedure 35 governing physical and mental examinations, if the parties do not agree and a court order is required, what are the two things that must be shown?
Sometimes, the parties do not agree on taking physical and mental examinations. In such a scenario, a court order is necessary to compel them to agree on the examinations. However, for this to take effect, two things must be shown. Before a court order may issue, the relevant physical or mental condition must be shown to be “in controversy” and “good cause” must be shown for the examination. This implies that the court order must be made only on motion for good cause and on notice to all parties and the person to be examined. Also, the order must specify the time, place, manner, conditions, and scope of the examination, as well as the person(s) who will perform the examination.
- What is a subpoena duces tecum and when would it be used?
The term “subpoena duces tecum” is a writ requiring the witness to produce a document(s) pertinent or relevant to a proceeding. A subpoena duces tecum is used when producing a piece of evidence of document pertinent to the case before proceedings begin. It is also used to summon the recipient to either provide the requested evidence or documents to be relied on in an upcoming trial or hearing or appear in person at the court to present such evidence. Besides, a subpoena duces tecum is used to produce larger items like a car (if the case related to an accident) or a product (where there are matters of product defects).
Fact scenario:
Tony worked for ABC Company and signed an agreement not to compete for a period of two years after the end of his employment. Tony quit and went to work for DEF Company. Although DEF Company does sell items that are also sold by ABC, DEF has different divisions and Tony has been assigned to work in a division selling items that ABC does not sell. ABC sues Tony in state court in St. Lucie County for breach of his non-compete contract. ABC issues a subpoena to DEF Company requesting records that would identify confidential customer information. DEF hires the law firm where you work. Your boss, Addie Smith asks you to draft a Motion for Protective Order on behalf of DEF asking that they not be required to produce the records. (25)
IN THE CIRCUIT JUDICIAL COURT OF THE 18TH JUDICIAL CIRCUIT IN AND ST. LUCIE COUNTY, FLORIDA
ABC COMPANY, Plaintiff Vs. TONY, Defendant
CASE NO.: 02-2013-CA-055246
MOTION FOR PROTECTIVE ORDER
HEREIN comes the defendant, Tony, (hereafter “TONY” or “Defendant”), by and through undersigned counsel and pursuit to Rule 1.280(c), Fla.R.Civ.P, and files Motion for Protective Order, and as grounds thereof states:
- Plaintiff, ABC Company, in her official capacity, initiated the subject action of filing a suit against Defendant for declaratory relief, breach of agreement, and rescission. All these causes of action involve a contract between the Plaintiff and Defendant not to compete for a period of two (2) years after the end of the Defendant’s employment.
- The suit contains general allegations of alleged violation/breach of the non-compete contract by the Defendant.
- TONY quit ABC Company and went to work for DEF Company.
- Although DEF Company sells items that ABC Company also sells, DEF has different divisions and Tony has been assigned to selling items not sold by the Plaintiff (ABC Company).
- Plaintiff issued a subpoena of the deposition to a non-party, DEF Company, for the employment contract they signed with the Defendant.
- The subject deposition of DEF Company was coordinated between the Plaintiff and Defendant herein, and the signed agreement not to compete on the deposition only included the Defendant and not any other non-party. Defendant has learned that an attorney has been hired by DEF Company to produce the required records in the suit filed by ABC Company.
- The Defendant, thus, seeks the protection of this Court, pursuant to Rule 1.280(c) Fla.R.Civ.P, which states in pertinent part: “Upon motion by a party, and for good cause shown, the court in which the action is pending may make any order to protect a party from embarrassment, annoyance, oppression, or undue burden/expense that justice requires.”
- DEF Company’s deposition was only coordinated in and only noticed in this subject action. The hired attorney have no right to be involved in this action, nor any standing to participate in this deposition in whichever way.
- Pursuant to Rule 1.280(c)(5), this Court has power, and must exercise the power by ordering that no other party be present at the Tony’s deposition other than his (& his representatives) and the Plaintiff to this action.
- In this matter, counsel has conferred with counsel for Plaintiff; however, Plaintiff’s Counsel is unable to agree to the relief sought by ABC Company in this motion.
- Plaintiff will by no means be prejudiced by the Court’s granting of this Motion. As the subject deposition would move forward as prior scheduled. Moreover, based on the foregoing, there exists good cause for this Court to enter the protective order request by the Defendant (Tony).