If you have made it past the defendant’s motions for dismissal, there is a better chance that the court will appoint an attorney to assist you. If so, you can use this section of the Handbook to understand what your lawyer is doing, to help him or her do it better and to figure out what you want him or her to do. If you do not have a lawyer, this section will help you get through the next stage on your own – but what you will be able to do will be more limited.
The next major activity in your suit will be discovery. Rules 26-37 of the Federal Rules of Civil Procedure explain “discovery” tools that both parties in a lawsuit can use. You should begin by reading through those rules. Some of the rules, like Rule 26, set out different requirements for pro se prisoners than for others. It is also very important to read the corresponding local rules from the district your case is in, as many courts have made important changes to the federal rules.
- Uncover factual information about the events that gave rise to your case.
- Collect evidence to use at “summary judgment” or your trial.
- Force the defendants to explain their version of the facts, and provide you with evidence they may rely on.
Discovery helps you to get important information and materials from the other party before the case goes to trial. If you don’t have a lawyer at this stage, you will need to spend a lot of time thinking about what facts you will need to prove at trial, and coming up with a plan about how to find out that information. The Southern Poverty Law Center’s litigation manual for prisoners, Protecting Your Health & Safety, has a very helpful chapter on developing discovery strategies. You will find information on ordering that book in Appendix J.
1. Discovery Tools
There are four main discovery tools: depositions, interrogatories, production, and inspection. You can also request an examination by an outside doctor, under Federal Rules of Civil Procedure Rule 35. This Handbook gives you only a brief introduction to these techniques. The details of how they work are in the Federal Rules of Civil Procedure.
A deposition is a very valuable discovery tool. You meet with a defendant or a potential witness, that person’s lawyer, and maybe a stenographer. You or your lawyer ask questions which the “deponent” (the defendant or witness you are deposing) answers under oath. Because the witness is under oath, he or she can be prosecuted for perjury if he or she lies. The questions and answers are tape-recorded or taken down by the stenographer.
A deposition is very much like testimony at a trial. In fact, you can use what was said at a deposition in a trial if the deponent either (1) is a party (plaintiff or defendant), (2) says something at the trial which contradicts the deposition, or (3) can’t testify at the trial. Despite these benefits, you should BEWARE: a deposition is very hard to arrange from in prison because it can be expensive and involves a lot of people.
Interrogatories are written questions which must be answered in writing under oath. Under Federal Rules of Civil Procedure Rule 33, you can send up to 25 questions to each of the other parties to the suit. You can use the following example to write interrogatories of your own.
- If you have a guard brutality case, you may want to ask questions about how long the specific guard has worked at the prison, where he is assigned, what his duties are, what he remembers of the incident, what he wrote about the incident in any reports, whether he has ever been disciplined, and more.
It is also a good idea to take the opportunity to try to find out who else might be a helpful witness. You could ask the defendant to:
- State the name and address or otherwise identify and locate any person who, to you or your attorney’s knowledge, claims to know of facts relevant to the conduct described in these interrogatories.
You can also ask for documents. For example, you could include the following as a question:
- Identify and attach a copy of any and all documents relating to prison medical center staff training and education.
- Identify and attach a copy of any and all documents showing who was on duty in cell block B at 9 p.m. the night of August 18, 2009.
At the end of your questions, you should date and sign the page and type your full name and address below your signature.
A person who is just a witness, but not a party, cannot be made to answer interrogatories. However, he or she can voluntarily answer questions in an affidavit. To get an affidavit from someone in another prison, you may need a court order.
The third discovery tool is “Document Production.” If you want to read and copy documents such as letters, photos, or written rules that the prison officials have, ask for production of those items under Federal Rules of Civil Procedure Rule 34. You can look at Form 24 in the Federal Rules of Civil Procedure Appendix of Forms, or you can use the following form:
You can also get inspection of tangible things, like clothing or weapons, and a chance to “copy, test or sample” them. And you have a right to enter property under the defendants’ control – such as a prison cell, exercise yard or cafeteria, to examine, measure, and photograph it.
You can use any combination of these techniques at the same time or one after the other. If you have new questions or requests, you can go back to a defendant for additional discovery. You can also use informal investigation to find out important information. You can talk to other prisoners and guards about what is going on. Or, you can use state and federal Freedom of Information Laws to request prison policies and information. Each state has different rules about what information is available to the public. Of course, prison officials may use various tactics to interfere with your investigation. Try to be creative in dealing with these problems, and, if necessary, you may want to write a letter to the judge explaining the problem.
2. What You Can See and Ask About
The Federal Rules put very few limits on the kind of information and materials you can get through discovery and the number of requests you can make. Under Federal Rules of Civil Procedure Rule 26(b)(1), you have a legal right to anything which is in any way “relevant” to any party’s claim or defense. This includes anything relevant to any defense offered by the prison officials. “Relevant” means somehow related to what you are suing about.
You can demand information that the rules of evidence would not allow you to use at a trial, so long as the information “appears reasonably calculated to lead to the discovery of admissible evidence.” This just means that the information could possibly help you to find other information that you could use at trial.
The people you are suing must give you all the “non-privileged” information that is available to them. (The issue of “privilege” is explained below.) If you sue a top official, discovery includes what his subordinates know and the information in records available to him. This could possibly even include information that is only held by a party’s attorney, if you can’t get that information any other way. Hickman v. Taylor, 329 U.S. 495 (1947).
Defendants may try to get out of having to comply with your requests by arguing that they are “unduly burdensome or expensive.” This means that your request would cost the prison a lot of money, and wouldn’t be very helpful to you. However, as one judge explained, “the federal courts reject out of hand claims of burdensomeness which are not supported by a specific, detailed showing, usually by affidavit, of why weighing the need for discovery against the burden it will impose permits the conclusion that the court should not permit it.” Natural Resources Defense Council v. Curtis, 189 F.R.D. 4, 13 (D.D.C. 1999). In other words, the defendants can’t avoid discovery by just stating it will be too difficult. They have to really prove it.
Even when defendants can show that producing the requested information would be very expensive and difficult, the court may not let them off the hook if the information is truly essential for your lawsuit. For example, in Alexander v. Rizzo, 50 F.R.D. 374 (E.D. Pa. 1970), the court ordered a police department to compile information requested by plaintiffs in a Section 1983 suit even though the police claimed it would require “hundreds of employees to spend many years of man hours.” The burden and expense involved was not “undue” because the information was essential to the suit and could not be obtained any other way.
You may not be able to discover material that is protected by a special legal “privilege,” such as the attorney-client privilege. A “privilege” is a rule that protects a certain type of information from discovery. There are several types of privileges, including the attorney-client privilege, attorney work product privilege, and the husband-wife privilege. Explaining all these privileges is too complicated for us to attempt here. However, it is important for you to know that prison officials cannot avoid discovery of relevant information merely by claiming it is “confidential.” Beach v. City of Olathe, Kansas, 203 F.R.D. 489 (D. Kan. 2001). If the prison officials claim information is privileged, they have the burden of identifying the specific privilege at issue, and proving that the particular information is in fact privileged. A judge may order the privileged information to be “redacted” from the documents provided to you. This means that information covered by any privilege mentioned above will be blacked out.
Information which would be considered “confidential” under state law may still have to be disclosed if, after examining it privately (“in camera”), the judge decides it is very important for your suit. King v. Conde, 121 F.R.D. 180, 190 (E.D.N.Y. Jun. 15, 1988). If the material is confidential, the judge may keep you from showing the information to anyone else or using it for any reason besides your suit.
4. Some Basic Steps
Usually, in a prison suit, you start with document production and interrogatories and then move to depositions. The documents you get in response to a motion for production can lead you to other useful documents, potential witnesses, and people you might want to depose. Some of the kinds of documents that have been obtained from prison officials include: policy statements, prison rules and manuals, minutes of staff meetings, files about an individual prisoner (provided he or she signs a written release), and incident reports filed by prison staff.
You can use interrogatories to discover what kinds of records and documents the prison has, where they are kept, and who has them. This information will help you prepare a request for production. Only people you have named as defendants can be required to produce their documents and records. Wardens, associate wardens, and corrections department officials have control over all prison records. If your suit is only against guards or other lower-level staff, however, you may have to set up a deposition of the official in charge of the records you need and ask the court clerk to issue a “subpoena” which orders the official to bring those records with him to the deposition. See Federal Rules of Civil Procedure Rule 45(d).
Interrogatories are also good for statistics which are not in routine documents but which prison officials can compile in response to your questions. Examples are the size of cells, the number and titles of books in the library, and data on prisoner classification, work release, and punishments. If your suit is based on brutality or misbehavior by particular prison employees, you can also use interrogatories to check out their background and work history, including suits or reprimands for misbehavior. If you are suing top officials for acts by their subordinates, you should find out how responsibilities relevant to your case are assigned within the prison and the Corrections Department and how, if at all, these responsibilities were fulfilled in your case.
5. Some Practical Considerations
Interrogatories have two big drawbacks: (1) you can use them only against people you have named as defendants; and (2) those people have lots of time to think out their answers and go over them with their lawyers. As a result, interrogatories are not good for pressing officials into letting slip important information they’re trying to hide. You won’t catch them giving an embarrassing off-the-cuff explanation of prison practices or making some other blunder that you can use against them.
Depositions are much better for this purpose. You can use depositions against anyone. The deponent can’t know the questions in advance and must answer them right away. Regular depositions, however, are much less practical than interrogatories for a prisoner suing pro se. Judges are unlikely to order the authorities to set up a deposition within the prison or allow you to conduct one outside. If you have no lawyer, you might try a “Deposition Upon Written Questions” (Federal Rules of Civil Procedure Rule 31). You submit your questions in advance, as with interrogatories, but the witness does not send back written answers. The witness has to answer in his or her own words, under oath, before a stenographer who writes down the answers. Although the witness will still have time to prepare in advance, at least he or she won’t be able to submit answers written by a Deputy Attorney General.
The procedure for getting interrogatories and production is fairly simple. Just send your questions and your requests for production to the lawyer for the prison officials, usually the Deputy Attorney General. Send separate requests and questions for each defendant.
The prison officials must respond within 30 days unless the court or the parties agree otherwise. The officials may ask the judge for a “protective order” which blocks some of your questions or requests because they are irrelevant, privileged, or impose “undue burden or expense.” They have to submit a motion to avoid responding to your requests. There is then an opportunity for memoranda of law and a court hearing.
The prison officials may also refuse to answer questions or requests which are not covered by a protective order. They may simply ignore your request. Then you need to submit a Motion for an Order Compelling Discovery. In this motion, you indicate what they refused and why you need it. Use the following example:
7. Their Discovery of Your Information and Material
Prison officials can use discovery against you. This may be an intimidating process, and prison officials may try to scare you and get you to say things they can use against you. You must respond to discovery requests unless the defendants are asking for information that is totally irrelevant, or privileged. If you don’t have an attorney, then the privilege that is most important for you to know about is the 5th Amendment right against self-incrimination. You can refuse to answer a question in a deposition or an interrogatory if it might amount to admitting that you have committed a crime for which you could face charges.
Under Rule 30(a) of the Federal Rules of Civil Procedure, a prisoner can only be deposed with leave of the court. If defendants ask to depose you, you may want to ask the judge to put off the deposition until after he or she reconsiders your request for appointed counsel. Put in another request for appointment of counsel and see if the judge will at least appoint a lawyer to represent you at the deposition. You may want to tell the judge that you’re afraid you might be asked to say things which could be used against you in a criminal prosecution.
If you are deposed, it is important to keep cool and answer questions directly and honestly. You do not need to volunteer any information. You should also warn any witnesses you may have that the Attorney General’s office probably will depose them once you’ve revealed their identities. You must be notified in advance of any deposition scheduled in your case. You or your lawyer are entitled to be present, to advise and consult with your witness, and ask him or her questions that become part of the official record of the deposition. The witness has a right to talk with you or your lawyer beforehand. The witness can also refuse to talk about your suit outside the deposition with anyone from the prison or the Attorney General’s office.