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Discovery From the Federal Government (From The Litigation Manual, P 167-177, 1989, John G Koeltl, ed. -- See NCJ-117323)

NCJ Number
117331
Author(s)
C C Bird
Date Published
1989
Length
11 pages
Annotation
This article identifies limitations on discovery from the Federal Government and suggests practical ways of dealing with them to obtain discovery without undue delay or expense.
Abstract
The Federal Government's special privileges do not bar all discovery. The government's mere assertion of a privilege does not end the matter. A judge may not agree that a report is or should be 'confidential' and may not perceive 'national security' claims from the same perspective as the government. The boundaries of governmental privileges are neither sharp nor self-defining. After litigation and, possibly, as in camera review of the material in question, the persistent attorney may obtain the desired discovery. Although access to discovery from Federal department or agency heads is limited, they can be deposed if the discovering party can show that they alone have the necessary knowledge or information. Discovery inquiries from such officials should focus on what materials that official reviewed and what facts the official know when the decision was made. Sanctions against the Federal Government for refusal to comply with discovery depositions include contempt of court, the payment of attorney fees and expenses, and default judgments against disobedient parties. A discovery agreement with the government should be put in writing. Attorneys seeking discovery from the Federal Government should also take advantage of discovery Rule 30(b)(6), which permits naming as the deponent in the deposition notice or subpoena 'a public ... corporation ... or governmental agency and describing with reasonable particularity the matters on which examination is requested.'

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