Can a party in default conduct discovery?

July 16, 2010 7:13 AM

A party in default (defendant) has served notices of depositions against his opponent (plaintiff). They are in federal court. Is there a part of the Federal Rules of Civil Procedure (FRCP) that governs? My sense is that once a party's default has been entered, that party can't defend itself anymore. But where is the authority for this?
posted by ninotchka to Law & Government (4 answers total)

Is this what you're looking for?
"When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default."

Note that the court may set aside a default judgment for good cause or under Rule 60(b), which includes:

"(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief."
posted by katemonster at 7:56 AM on July 16, 2010

Your use of the term "default" is not completely clear. Do you mean to say that the court has already issued a judgment? If so, then katemonster's quote is the applicable rule which would govern what the other side would have to do to get the court to set aside the default judgment (Rule 60). If the court has not entered the judgment and there is simply an entry of default, the court can (and will) allow the party to enter the case with pretty broad discretion -- see Rule 55, which merely says "The court may set aside an entry of default for good cause" which could be translated as "for any reason that pleases the judge."
posted by Lame_username at 10:44 AM on July 16, 2010

A party in default can still defend issues relating to damages. If the depositions are limited to those issues, they can be legitimate.
posted by megatherium at 12:27 PM on July 16, 2010

Response by poster: Lame_username, good question, my apologies: in this instance there has been an entry of default by the clerk.
posted by ninotchka at 9:57 AM on July 17, 2010