USA Law and Practice Contributed by: Courtney Scobie, Jack Edwards and Andrea Whitley, Ajamie LLP
vary significantly. In some cases, it may take several weeks to several months for the court to render a decision, depending on the case’s complexity and the court’s workload. In certain situations, a party may request an expedited hearing for a motion by filing an emer- gency motion. These are typically reserved for extraordinary circumstances, such as requests for temporary restraining orders (TROs) or pre- liminary injunctions where immediate action is needed to prevent irreparable harm. The court will assess the urgency of the situation and may expedite the hearing accordingly. The availability of an expedited hearing is generally controlled by local rules and court procedures. Discovery is a crucial part of the pre-trial phase in civil cases in federal courts in the USA and liti- gants are entitled to extensive pre-trial discovery from their opponents and third parties in order to prepare for trial. Discovery mechanisms include the following. • Depositions – parties can take depositions of witnesses, including the opposing party, to obtain sworn testimony. They are usually conducted in person and are recorded by a court reporter. • Interrogatories – interrogatories are written questions that one party sends to another party. The receiving party must respond in writing and under oath. Parties are gener- ally limited to 25 interrogatories each, in the absence of an agreement among the parties or a court order. 5. Discovery 5.1 Discovery and Civil Cases • Requests for production of documents – parties can request the production of docu-
ments, electronically stored information (ESI), and tangible items. These requests seek the exchange of relevant records and materials. • Requests for admissions – a party can send requests for admissions to seek admissions or denials of specific facts from the other party. They are frequently used to authenti- cate important documents. Per FRCP 26(b), parties may obtain discovery regarding any non-privileged matter that is rele- vant to any party’s claim or defence and propor- tional to the needs of the case. When determin- ing proportionality, courts and litigants consider the importance of the issues, the amount in con- troversy, and the parties’ resources. Information does not need to be admissible in evidence to be discoverable. Discovery is administered by the litigants and each party is responsible for complying with the rules and responding to discovery requests. Par- ties can stipulate various aspects of discovery, such as the timing and manner of production, but the court may become involved when dis- putes arise. To contain the scope and cost of discovery, par- ties are required to confer over discovery issues at the start of the lawsuit and draft a discovery plan. Discovery plans address, among other things, the schedule for conducting discovery, subjects on which discovery is needed, poten- tial privilege issues, and changes to limitations imposed by the federal or local court rules. 5.2 Discovery and Third Parties Under FRCP 45, a litigant can have a subpoena issued to a third party to obtain discovery (includ- ing documents or ESI) from them for inspection of a third party’s premises or for deposition tes- timony. Subpoenas can be issued either by a
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