Subpoena vs Motion to Compel Are there clear rules on when to use subpoenas for discovery as opposed to requests? E.g., is it correct that subpoenas are supposed to be served for discovery from third parties to a legal action, whereas discovery on a counterparty is supposed to be through requests? My current understanding of custom is that a plaintiff should use requests to begin discovery &ndash; Requests for Production (RFPs), written interrogatories (IROGs), etc. When the counterparty objects to these the parties are supposed to "meet and confer" to try to agree on discovery. Only then is it considered proper for the plaintiff to file a Motion to Compel. Is my understanding so far correct? If a Motion to Compel a response is granted then isn't it legally equivalent to a subpoena? If not what are the differences? And if everything so far is correct then isn't it weird that the more "compelling" process is used immediately on third parties and not on the direct adversary?
In a civil action: If you are serving written discovery on a party, under the federal rules of civil procedure, or in any state whose adopted the model rules, (rules 33-37 typically), you need only send your requests for interrogatories, the production of documents, or for admissions to the party (through their counsel unless they are pro se), accompanied by the discovery notice, detailing the time frame in which they are due. It is typical that this time frame will get extended, sometimes by double or triple the original 21 day period plus 3-5 days for mailing. When the party is represented (this is 99% of the time) the attorney will just call you or email you for an extension and it is pro forma to assent to this. The court will not be happy if they need to seek permission of the court for this because you refused, as it is that common, and you will just get a reputation as a non-cooperative pain (not to mention, the time will come when you need an extension, and what comes around goes around). If they seek an unreasonable amount of time (I'm talking so close to the discovery cut off that you'd not have time for depositions after receipt), then you can limit it, but a couple of months is common. This need not go through the court. If they are not represented, they may just be late rather than calling, in which case you have a duty to contact them before involving the court. This is just because they don't know it is the norm, and it is nearly impossible to pull together everything needed from a full set of discovery in 21 days. When there is a true discovery dispute, you must show the court that you made all due diligent efforts to resolve it on your own. I don't have my rules in front of me (I will edit and add this when I do) ... but this is in the rules, it is not just practically speaking. Also, many jurisdictions require that you contact the court's clerk and get permission before filing any discovery motions. Sending a subpoena is not ever how this is dealt with. If the opposing party fails to respond, or if they are continually late and despite numerous contacts they still do not produce, then you would schedule a discovery conference with the court at which time you will seek a motion to compel. The court will typically give them even more time at this point. You are correct in that when a third-party is served with discovery request, since they have no obligation to take part in the case but for the presence of a subpoena; hence, in this situation you would use a subpoena to request whatever it is you are requesting. They may get their own lawyer who will try to limit your right to get anything from them as a non-essential party, but if it is really relevant you can do it. You would also use the subpoena for depositions, to ensure that witnesses present themselves. Otherwise, subpoenas are reserved for acquiring witnesses to appear in court or for custodians of records to bring records to court for hearings or trial.
What are the factors in weighting whether to disclose substantive evidence vs. using it for impeachment at trial? In an adversarial system (such as that in the jurisdictions in the U.S.) the surprise factor is disallowed on trial. I am not knowledgeable on the procedural exceptions, but generally speaking the documentary evidence (including deposition transcripts) has to be filed during the discovery stage of proceedings. A discovery deadline is set up during case scheduling, and extensions of that deadline have to be requested via motion. There is the slightly related concept of sequestration of witnesses whereby inconsistencies may serve to impeach a witness's testimony, but that is different than withholding from the jury any pre-existing evidence that a plaintiff would like to be considered on trial (whether for impeachment or otherwise). Also, it is in the injured party's best interest that the jury get to see the evidence rather than have it merely rely on a witness's reaction of surprise. The wrongdoer's lawyer will try to confuse the jury and thus outweigh the jury's perception of a "surprised witness", but that attempt is likelier to fail if the jury has the evidence with which to compare the witness's testimony at trial.
In-house counsel is presumed to be intimately familiar, in a way that retained counsel is not, with both the day-to-day operations of the business and its longer-term strategic planning. So imagine that you're in an R&amp;D intensive industry, and you've been sued by a competitor. The competition's in-house counsel has served you a request to produce documents relating to the research that you're working on, your plans to monetize it, your assessments of the market, etc. Do you want someone to reviewing those documents on their way in to C-suite conference? Courts recognize that providing those documents to in-house counsel creates an almost unavoidable risk that that information will be (mis)used for purposes beyond the litigation. If you've only got your in-house counsel on the case, you can expect a court to be much more reluctant to enforce those kinds of discovery requests than it would be if you had outside counsel who isn't involved in the business. Vorys wrote a good article about this in 2004: http://ccbjournal.com/articles/4159/exclusion-house-counsel-discovery-sensitive-data
The written document is given very high priority, so parties will be held to what is in the document. Both parties sign at the bottom, as a way of signalling their agreement with the terms specified in the document. If conditions are added or subtracted (by crossing out), especially with pre-printed forms, the "customer" (person who didn't write the contract) can initial such modifications, as a way of clearly signalling that they indeed agree to the deletion of such-and-such clause. Since both parties have a copy of the signed agreement, this is not strictly necessary. The potential issue would be that an unscrupulous person could cross out a clause after the contract was signed, and claimed that they aren't bound by that clause. A comparison of the two copies would then reveal that the unscrupulous person was attempting fraud. There is nothing special about handwriting in or crossing out conditions, except that it poses a potential evidentiary problem as to what exactly was agreed to, if for example one party threw away their copy and then maintained that the crossed-out clause had not been crossed out. (So, keep your copy). In case you are proposing a scenario where one party is unaware of a change, i.e. at the very last minute Smith crosses something out and signs it, and Jones did not see that happen, then both copies would be the same and Jones would be legally bound to what's in the paper. Smith should announce to Jones that a clause was being deleted. We might suppose that there are innocent reasons why Smith made changes without making an announcement to Jones, in which case the parties do not have an agreement. There may be amicable ways to deal with that situation, but push could come to shove, in which case the written form of the document is generally taken to be the most important piece of evidence (though not always the only admissible evidence, unless you're in Colorado, Florida or Wisconsin).
As I understand it, legal procedure in Common Law jurisdictions (e.g. the UK) is primarily based on evidence given by a person. Paperwork exists to verify that someone has not misremembered something, but even when you have paperwork you need to have someone testify that this is the right paperwork and it hasn't been forged. A piece of paper on its own means nothing. In practice of course the two sides will agree to accept routine matters rather than dragging lots of third parties (e.g. the post office employees) into court to no point. In the case of a letter where you need to prove it was received, the sender will testify that they sent the letter and that the copy they have introduced into evidence is a true copy. The proof of delivery merely shows that the item wasn't lost in the post. If one party testifies that they sent a letter and the other testifies that they merely received an empty envelope then someone is lying, which is a crime meriting further investigation.
Because the hosts are part of the defendants. A party in a lawsuit can demand documents to be turned over to them from the opposing party. That is called Discovery and participation is mandatory. Not turning over the documents requested and not providing a good reason why they should not be turned over is contempt of court. Discovery under the Federal Rules is very broad. According to Rule 26(b)(1), &quot;Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense.&quot; The federal rules also provide several tools that can be used to get information from other parties, including interrogatories, depositions, and requests for admission. A party may also compel other parties to give them access to documents, real property, or other things for review or testing. See Rules 26-37. The Delaware rules of Civil Procedure mimic the Federal Rules of Civil Procedure very closely, and their Rule 26 is close to the Federal Rule 34. Especially interesting here is: Del. R. Civ. P. Super. Ct. 26 (b) (1) In general. - Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, including the existence, description, nature, custody, condition and location of any documents, electronically stored information (EST), or 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. [...] The hosts are employees of the defendant, the phones contain EST that is regarding the matter and relevant to Dominion's claim, and disclosure is proportional to the needs of the case. As such, The employer has to make them comply with discovery requests by the opposing party and hand over the text messages.
In a landmark document-production case, Fisher v. United States, 425 U.S. 391, it was held that The Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence, but applies only when the accused is compelled to make a testimonial communication that is incriminating ... A subpoena served on a taxpayer requiring him to produce an accountant's workpapers in his possession without doubt involves substantial compulsion. But it does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought. Therefore, the Fifth Amendment would not be violated by the fact alone that the papers, on their face, might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communications...The taxpayer cannot avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of someone else. By way of background (and as cited by the Fisher court), Schmerber v. California, 384 U.S. 757 where the accused was intoxicated and blood was drawn involuntarily, the court held that The privilege against self-incrimination is not available to an accused in a case such as this, where there is not even a shadow of compulsion to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature. In other words, the self-incrimination clause is about actual testimony, and not other physical acts (such as fingerprints, DNA, records) which are used as evidence of guilt.
The first thing you need is a lawyer. Your lawyer will need to understand the standard for granting the motion and be prepared with an explanation of why your case satisfies that standard. If the lawyer can cite to other cases where similar facts led to the outcome you're asking for, that will also be helpful.