10. Discovery (Rule 26) Flashcards
What are a party’s duties of disclosure under Rule 26 of FRCP?
Disclose without request
Make reasonable inquiry into facts
Disclose all info reasonably available at the time
What is required for initial disclosure?
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
When may initial disclosure be denied?
If used for impeachment
What is required for expert testimony disclosure?
1) Disclose
- Expert witness testimonies (to be used at trial)
- Expert witness report (qualified, signed)
2) 90 days before trial
What is required for pre-trial disclosure?
1) Disclose
- Ws to be called at trial
- Docs/Exhibits to be used at trial
- Deposition transcripts
2) 30 days before trial
What is required for disclosure of electronically stored data?
1) Litigation must be reasonably foreseeable
2) Take reasonable steps to discuss discovery + preservation
3) Report to court
When may electronically stored data not be required for disclosure?
Not reasonably accessible (undue burden/cost)
What type of electronically stored data must be disclosed?
Specific
- By requested party
Any
- As maintained
- Reasonably usable
When may sanctions not be imposed if electronically stored data is destroyed?
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
What is required for discovery?
1) Relevant
2) Proportional to case’s needs
- Issues
- Amount in controversy
- Info accessability
- Burden vs Benefits
What is required for supplemental discovery?
1) Requesting party was not given correct/complete disclosure
2) Disclosing party was not aware of new evidence
What are the exceptions to discovery?
Privileged information
Work product
What is required for work product?
1) Made in anticipation of litigation
- For party
- For representative (lawyer/agent)
2) Immunity
- Absolute
- Qualified
What are examples covered by absolute immunity under work product?
Mental impressions/conclusions/opinions
Confidential communications (Lawyer + Expert)
Expert’s ‘draft’ reports + disclosures
What are examples not covered by immunity under work product?
Confidential communications (Lawyer + Expert)
- Expert’s compensation costs
- Lawyer’s offer of information to Expert
Requesting party’s own statements to opponent party
How can qualified immunity be overcome?
1) Substantial need for document
2) Undue hardship
- Unable to obtain substantial equivalent by other means
What is a disclosing party required to do if he invokes qualified immunity?
Give sufficient description of protected document
- Allow court/opponent to assess work product/privilege
What are the types of discovery methods?
Physical/Mental examination
- Good cause
Physical production of documents
Request for admission
Interrogatories (written questions requesting written answers)
- Facts
- Contentions
Depositions
What is the difference between interrogatories and depositions?
Deposition
- Parties
- Non-parties
Interrogatories
- Parties
What purpose may depositions be used for?
Impeachment
Any purpose
- Adverse party
- Dead party
- Party cannot attend deposition (old/sick/imprisoned)
- At least 100 miles from trial location
What is required for a party to file motion to compel discovery?
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
What may a party do if he accidentally discloses a privileged document?
1) Notify the other party of the error
2) Request the other party to destroy/sequester/return the document
What may a party do if the opponent party’s witness does not attend a deposition?
Sue the opponent party for reasonable expenses
- Attendance costs
- Attorney’s fees
Who can physical examinations be performed upon?
Party
Non-party (under Party’s control)
