7) Discovery

Question 1

pretrial conferences: kinds

Answer 1

1) 26(f): dy planning

2) 16(b): scheduling

Question 2

pretrial conf: 26(f): def

Answer 2

parties meet and draft dy plan

Question 3

pretrial conf: 26(f): timing

Answer 3

when hold conference? 21+ days before 16(b) conference or order

14 days after conf: submit dy plan to court

Question 4

pretrial conf: 16(b): def

Answer 4

optional conference w judge re dy. Court must issue scheduling order even if no conf

Question 5

pretrial conf: 16(b): timing

Answer 5

must issue scheduling order w/in EARLIEST of:

1) 90 days from when D served
2) 60 days from when D appears

Question 6

mandatory disclosures: kinds

Answer 6

1) initial
2) expert
3) pretrial

Question 7

mandatory disclosures: initial: kinds

Answer 7

1) wits (that may use to support claim or defense)
2) docs
3) damages (computation + supporting docs)
4) insurance agreements

Question 8

mandatory disclosures: initial: timing

Answer 8

w/in 14 days after R26 conf

Question 9

mandatory disclosures: expert: timing

Answer 9

90+ days before trial

Question 10

mandatory disclosures: expert: content

Answer 10

parties who plan to rely on expert testimony must disclose:

1) name/contact info of expert
2) final report

Question 11

mandatory disclosures: expert: content: report must contain

Answer 11

expert’s:

1) qualifications
2) opinion
3) info she relied on

Question 12

mandatory disclosures: pretrial: timing

Answer 12

30+ days before trial

Question 13

mandatory disclosures: pretrial: content

Answer 13

1) list of wits (expect to call)
2) wits MAY call
3) wits tmony presented through depo or transcript
4) documents/evidnece list

Question 14

scope: def

Answer 14

discoverability – what CAN you get?

Question 15

scope: Criteria: mnemonic

Answer 15

Really
Want
Private
Phenomenal 
Evidence

Question 16

scope: criteria: list

Answer 16

1) relevance
2) work product
3) privilege
4) proportionality
5) experts

Question 17

scope: relevance: rule

Answer 17

only discoverable if RELEVANT (likely to make any fact in dispute ore or less likely to be true).

Does NOT need to be admissible at trial!

Question 18

scope: work product: def + result

Answer 18

doc/etc created by party or party’s atty in anticipation of litigation. Result: not discoverable

Question 19

scope: work product: examples

Answer 19

incident reports

records of coms with withs

Question 20

scope: work product: EXCEPTION

Answer 20

work product is still discoverable if:

1) own statement
2) substantial need

Question 21

scope: work product: exceptions: own statement: rule

Answer 21

party can always get its own statement (even if notes were taken by other atty/etc)

Question 22

scope: work product: substantial need: rule

Answer 22

party can get work product if has substantial need + can’t otherwise obtain the substantial equivalent w/o undue hardship

if court does order disclosure, must make every effort to keep secret: litigation strategy + mental processes

Question 23

scope: privilege: rule

Answer 23

not discoverable if privileged (A-C, marital, state secrets, etc). No exceptions!

Question 24

scope: proportionality: aka

Answer 24

FKA undue burden

Question 25

scope: proportionality: rule

Answer 25

court must limit dy sought if any of these:

1) not proportional to needs of case (factors)
2) unreasonably cumulative or can be obtained in less burdensome way/source
3) party seeking the dy already had ample opportunity to obtain

Question 26

scope: proportionality: “proportional” factors

Answer 26

1) importance of issues in case
2) amount in controversy
3) parties’ relative access to info
4) parties’ resources
5) importance of dy in resolving issue
6) if burden/expense of dy outweighs likely benefit

Question 27

scope: experts: kinds

Answer 27

different rules re:

1) non-testifying e.
2) testifying e.

Question 28

scope: experts: non-testifying: rule (+ exception)

Answer 28

can’t discover any info re the nontestifying expert UNLESS extraordinary need + no other way to obtain (ex. only a few experts)

Question 29

scope: experts: testifying: rule

Answer 29

only this info is discoverable:
1) (report – was mandatory disclosure)
COMMUNICATIONS RE:
2) expert’s study or testimony
3) data provided by the attorney to the expert
4) any assumption atty asked expert to make in developing opinion

Question 30

methods: kinds

Answer 30

1) irogs
2) reqs admissions
3) rq docs
4) rq mental or physical exam
5) depos
6) subpoenas

Question 31

irog: quantity

Answer 31

up to 25

Question 32

irog: conent

Answer 32

can incude facts + contentions

Question 33

irog: dl

Answer 33

30 days to rp

Question 34

irog: response

Answer 34

must be in writing, state objections w specificity. Ok just give requestor documents if can answer by reviewing and burden will be roughly equal for both

Question 35

rq admissions: scope

Answer 35

can ask about
facts
application of fact to law
genuineness of document

Question 36

rq admissions: effect

Answer 36

if admit, deemed conclusively established for purposes of the litigation

Question 37

rq admissions: dl

Answer 37

have 30 days to rp

Question 38

rq admissions: response

Answer 38

admit, deny, or lack sufficient info after reaosnable effort

ok object (inc ‘outside scope of dy’) but can’t say jury should resolve

Question 39

rq doc: def

Answer 39

includes request to inspect object, enter property, electronic info

Question 40

rq doc: dl

Answer 40

30 days to rp

Question 41

rq doc: rp

Answer 41

must provide docs as maintained in usual course of business + label them to correspond to req

Question 42

rq doc: rp: ESI

Answer 42

ok produce in form normally maintained, or reasonably usable form

Question 43

rq mental or physical exam: rule

Answer 43

ONLY AVAILABLE ON COURT ORDER

Question 44

rq mental or physical exam: report

Answer 44

examiner must prepare report +

must provide to any party who rqs it

Question 45

depos: quantity

Answer 45

10 per party (but can get court order if need more)

Question 46

depos: timing (+ exception)

Answer 46

usually during lawsuit

exception: depos to perpetuate tmony

Question 47

all dy: timing

Answer 47

can’t start til after 26(f) conference

Question 48

depos: depo to perpetuate tmony: def

Answer 48

only available if all expected parties provided an opportunity to be present, ask qs

Question 49

depos: when can use at trial? (+exceptions)

Answer 49

1) only if party it’s used against had reasonable opportunity to be present at depo
2) for these limited purposes:
- -to impeach deponent

EXCEPTION:
ok use for any purpose if:
1) the depo was of a party or party’s designee, or
2) deponent unavailable

Question 50

subpoenas: kinds

Answer 50

1) duces tecum

2) ad testificatum

Question 51

subpoena: duces tecum: def

Answer 51

demand for docs

Question 52

subpoena: ad testificatum: def

Answer 52

demand for tmony

Question 53

subponea: rp

Answer 53

person served can object if outside scope of dy, or if requires to travel 100+ miles from where resides or works

Question 54

enforcement: sorta comply: mxn to compel: reqs

Answer 54

1) can only do after good faith attempt to meet/confer

Question 55

enforcement: sorta comply: mxn to compel: result

Answer 55

1) court grants: moving party gets fees/expenses
2) court denies: nonmoving party may get fees ONLY IF mxn not substantially justified

if still dn comply, sanctions!

Question 56

enforcement: sanctions: can include

Answer 56

1) adverse instruction
2) court prevents disobeying party from presenting certain claims/defenses
3) stay/dismissal of full action
4) contempt of court

Question 57

enforcement: sanctions: adverse instruction: def

Answer 57

(facts sought established in favor of requesting party)

Question 58

enforcement: what if dn comply AT ALL? (+exception)

Answer 58

requesting party can seek sanctions immediately w/o mxn compel
(exception: not order of contempt)