Depositions, Interrogatories, and Medical Exams

There's a lot to know about discovery for Civil Procedure on the bar exam. Three avenues for discovery (though this is not an exhaustive list) are depositions, interrogatories, and medical exams. Each has nuances to keep in mind. First, depositions.

The questions in a deposition can be either oral or written; both parties and non-parties may be deposed, and all are under oath while answering deposition questions. A subpoena is not required to depose a party to the lawsuit; a notice of deposition is sufficient. In contrast, a non-party must be served with a subpoena. 

Unless a non-party agrees otherwise, the farthest a non-party can be required to travel to a deposition is 100 miles from where the non-party resides or is employed. The party taking the deposition cannot take more than 10 depositions nor may the party depose the same person twice without court approval or stipulation. Depositions cannot exceed seven hours in the same day unless the court orders otherwise or unless the parties stipulate otherwise. 

Depositions serve multiple purposes: first, they can be used to impeach the deponent at trial. They can be used for any purpose if the deponent is an adverse party, and they can be used for any purpose if the deponent (party or non-party) is unavailable at trial unless that absence was procured by the party seeking to introduce the deposition testimony. 

Another avenue for discovery is interrogatories. Interrogatories are written questions that are answered in writing under oath. In contact to depositions, interrogatories are sent only to parties, never to non-parties. Although this may vary by court order or stipulation, the maximum number of interrogatories is 25, including subparts. 

Interrogatories must be answered within 30 days from the time they are served upon the recipient, and they must be answered based upon information reasonably available. Sometimes, answers to interrogatories might be found in business records. If the burden of finding such answers would be about equivalent for either party, the responding party can allow the requesting party to have access to those business records.

Another avenue for discovery is the medical exam (either physical or mental). A court order is required to compel a party (or a person in the party's custody and control) to submit to a medical exam. If making such a request, there are requirements: A party must show that the person who will be subject to the exam has a health issue that is in controversy and that there is good cause for requesting the exam. The requesting party chooses the licensed medical professional to perform the exam. 

Once the court orders a medical exam, the medical professional will write a report and then provide that report to the requesting party. The person undergoing the exam is also entitled to a copy of the report, if requested. 

If that party then receives the report, that party must (on request) produce all medical reports about the same condition by the party's own doctor. Any doctor-patient privilege that the party might have had with that doctor is waived regarding that specific medical condition.