10. Discovery (Rule 26)

Question 1

What are a party’s duties of disclosure under Rule 26 of FRCP?

Answer 1

Disclose without request
Make reasonable inquiry into facts
Disclose all info reasonably available at the time

Question 2

What is required for initial disclosure?

Answer 2

1) Disclose
- Contact info re persons likely to possess discoverable info
- Docs/Tangibles/Intangibles/ESI (support own case/in possession or control)
- Insurance agreements
- Computation of damages

2) Within 14 days after Rule 26 Conference

Question 3

When may initial disclosure be denied?

Answer 3

If used for impeachment

Question 4

What is required for expert testimony disclosure?

Answer 4

1) Disclose
- Expert witness testimonies (to be used at trial)
- Expert witness report (qualified, signed)

2) 90 days before trial

Question 5

What is required for pre-trial disclosure?

Answer 5

1) Disclose
- Ws to be called at trial
- Docs/Exhibits to be used at trial
- Deposition transcripts

2) 30 days before trial

Question 6

What is required for disclosure of electronically stored data?

Answer 6

1) Litigation must be reasonably foreseeable
2) Take reasonable steps to discuss discovery + preservation
3) Report to court

Question 7

When may electronically stored data not be required for disclosure?

Answer 7

Not reasonably accessible (undue burden/cost)

Question 8

What type of electronically stored data must be disclosed?

Answer 8

Specific
- By requested party

Any

• As maintained
• Reasonably usable

Question 9

When may sanctions not be imposed if electronically stored data is destroyed?

Answer 9

Party previously took reasonable steps to preserve data

Data is restorable/adequately replaceable

Party’s remedies are not greater than necessary due to prejudice from lack of info

Question 10

What is required for discovery?

Answer 10

1) Relevant

2) Proportional to case’s needs
- Issues
- Amount in controversy
- Info accessability
- Burden vs Benefits

Question 11

What is required for supplemental discovery?

Answer 11

1) Requesting party was not given correct/complete disclosure
2) Disclosing party was not aware of new evidence

Question 12

What are the exceptions to discovery?

Answer 12

Privileged information

Work product

Question 13

What is required for work product?

Answer 13

1) Made in anticipation of litigation
- For party
- For representative (lawyer/agent)

2) Immunity
- Absolute
- Qualified

Question 14

What are examples covered by absolute immunity under work product?

Answer 14

Mental impressions/conclusions/opinions

Confidential communications (Lawyer + Expert)

Expert’s ‘draft’ reports + disclosures

Question 15

What are examples not covered by immunity under work product?

Answer 15

Confidential communications (Lawyer + Expert)

• Expert’s compensation costs
• Lawyer’s offer of information to Expert

Requesting party’s own statements to opponent party

Question 16

How can qualified immunity be overcome?

Answer 16

1) Substantial need for document
2) Undue hardship
- Unable to obtain substantial equivalent by other means

Question 17

What is a disclosing party required to do if he invokes qualified immunity?

Answer 17

Give sufficient description of protected document

- Allow court/opponent to assess work product/privilege

Question 18

What are the types of discovery methods?

Answer 18

Physical/Mental examination
- Good cause

Physical production of documents

Request for admission

Interrogatories (written questions requesting written answers)

• Facts
• Contentions

Depositions

Question 19

What is the difference between interrogatories and depositions?

Answer 19

Deposition

• Parties
• Non-parties

Interrogatories
- Parties

Question 20

What purpose may depositions be used for?

Answer 20

Impeachment

Any purpose

• Adverse party
• Dead party
• Party cannot attend deposition (old/sick/imprisoned)
• At least 100 miles from trial location

Question 21

What is required for a party to file motion to compel discovery?

Answer 21

1) Moving party apply for motion to compel by certifying attempt to comply with non-disclosing party re non-disclosure;
- In good faith
- NO court involvement

2) Court must order non-disclosing party to pay motion costs

3) If non-disclosing party failed to disclose in response to request (NOT physical/mental exams) => Court can hold in contempt of court + impose sanctions
- Strike pleadings
- Default judgment
- Stay/Dismiss case
- Order expenses payment

Question 22

What may a party do if he accidentally discloses a privileged document?

Answer 22

1) Notify the other party of the error

2) Request the other party to destroy/sequester/return the document

Question 23

What may a party do if the opponent party’s witness does not attend a deposition?

Answer 23

Sue the opponent party for reasonable expenses

• Attendance costs
• Attorney’s fees

Question 24

Who can physical examinations be performed upon?

Answer 24

Party

Non-party (under Party’s control)

Question 25

When can discovery methods be performed?

Answer 25

Before lawsuit commenced
- Prevent loss of evidence by perpetuating W testimony

After lawsuit commenced

Question 26

How can depositions be made on parties/non-parties?

Answer 26

Party/Party’s control
- Depose anywhere

Non-party

1) Subpoena
2) Depose within 100 miles of Non-party’s residence/employment