This memorandum deals with a number of matters, including commission evidence and de bene esse evidence; admissions; discovery issues arising from the use of Pierringer agreements; and innovative discovery procedures.

Issues addressed are:

  • when should evidence be taken out of Court;
  • how should the order for commission evidence be obtained;
  • how should the Rules address the procedures for taking commission evidence;
  • should the commission evidence procedure apply to discovery evidence;
  • should discovery transcripts be used in the event that a witness is unavailable at trial, and if so, by whom;
  • should the Notice to Admit be retained;
  • should any changes be made to the Notice to Admit procedure; are the deemed authenticity of records Rules adequate;
  • if Pierringer agreements are entered into before document discovery or examination for discovery have been concluded, should there be some mechanism for permitting the non-settling parties to complete discovery;
  • if Pierringer agreements are entered into after examinations for discovery, what may be the made of the settling parties’ discovery transcripts?