7) Discovery Flashcards
pretrial conferences: kinds
1) 26(f): dy planning
2) 16(b): scheduling
pretrial conf: 26(f): def
parties meet and draft dy plan
pretrial conf: 26(f): timing
when hold conference? 21+ days before 16(b) conference or order
14 days after conf: submit dy plan to court
pretrial conf: 16(b): def
optional conference w judge re dy. Court must issue scheduling order even if no conf
pretrial conf: 16(b): timing
must issue scheduling order w/in EARLIEST of:
1) 90 days from when D served
2) 60 days from when D appears
mandatory disclosures: kinds
1) initial
2) expert
3) pretrial
mandatory disclosures: initial: kinds
1) wits (that may use to support claim or defense)
2) docs
3) damages (computation + supporting docs)
4) insurance agreements
mandatory disclosures: initial: timing
w/in 14 days after R26 conf
mandatory disclosures: expert: timing
90+ days before trial
mandatory disclosures: expert: content
parties who plan to rely on expert testimony must disclose:
1) name/contact info of expert
2) final report
mandatory disclosures: expert: content: report must contain
expert’s:
1) qualifications
2) opinion
3) info she relied on
mandatory disclosures: pretrial: timing
30+ days before trial
mandatory disclosures: pretrial: content
1) list of wits (expect to call)
2) wits MAY call
3) wits tmony presented through depo or transcript
4) documents/evidnece list
scope: def
discoverability – what CAN you get?
scope: Criteria: mnemonic
Really Want Private Phenomenal Evidence
scope: criteria: list
1) relevance
2) work product
3) privilege
4) proportionality
5) experts
scope: relevance: rule
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!
scope: work product: def + result
doc/etc created by party or party’s atty in anticipation of litigation. Result: not discoverable
scope: work product: examples
incident reports
records of coms with withs
scope: work product: EXCEPTION
work product is still discoverable if:
1) own statement
2) substantial need
scope: work product: exceptions: own statement: rule
party can always get its own statement (even if notes were taken by other atty/etc)
scope: work product: substantial need: rule
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
scope: privilege: rule
not discoverable if privileged (A-C, marital, state secrets, etc). No exceptions!
scope: proportionality: aka
FKA undue burden
scope: proportionality: rule
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
scope: proportionality: “proportional” factors
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
scope: experts: kinds
different rules re:
1) non-testifying e.
2) testifying e.
scope: experts: non-testifying: rule (+ exception)
can’t discover any info re the nontestifying expert UNLESS extraordinary need + no other way to obtain (ex. only a few experts)
scope: experts: testifying: rule
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
methods: kinds
1) irogs
2) reqs admissions
3) rq docs
4) rq mental or physical exam
5) depos
6) subpoenas
irog: quantity
up to 25
irog: conent
can incude facts + contentions
irog: dl
30 days to rp
irog: response
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
rq admissions: scope
can ask about
facts
application of fact to law
genuineness of document
rq admissions: effect
if admit, deemed conclusively established for purposes of the litigation
rq admissions: dl
have 30 days to rp
rq admissions: response
admit, deny, or lack sufficient info after reaosnable effort
ok object (inc ‘outside scope of dy’) but can’t say jury should resolve
rq doc: def
includes request to inspect object, enter property, electronic info
rq doc: dl
30 days to rp
rq doc: rp
must provide docs as maintained in usual course of business + label them to correspond to req
rq doc: rp: ESI
ok produce in form normally maintained, or reasonably usable form
rq mental or physical exam: rule
ONLY AVAILABLE ON COURT ORDER
rq mental or physical exam: report
examiner must prepare report +
must provide to any party who rqs it
depos: quantity
10 per party (but can get court order if need more)
depos: timing (+ exception)
usually during lawsuit
exception: depos to perpetuate tmony
all dy: timing
can’t start til after 26(f) conference
depos: depo to perpetuate tmony: def
only available if all expected parties provided an opportunity to be present, ask qs
depos: when can use at trial? (+exceptions)
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
subpoenas: kinds
1) duces tecum
2) ad testificatum
subpoena: duces tecum: def
demand for docs
subpoena: ad testificatum: def
demand for tmony
subponea: rp
person served can object if outside scope of dy, or if requires to travel 100+ miles from where resides or works
enforcement: sorta comply: mxn to compel: reqs
1) can only do after good faith attempt to meet/confer
enforcement: sorta comply: mxn to compel: result
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!
enforcement: sanctions: can include
1) adverse instruction
2) court prevents disobeying party from presenting certain claims/defenses
3) stay/dismissal of full action
4) contempt of court
enforcement: sanctions: adverse instruction: def
(facts sought established in favor of requesting party)
enforcement: what if dn comply AT ALL? (+exception)
requesting party can seek sanctions immediately w/o mxn compel
(exception: not order of contempt)
