Case management and discovery

Question 1

What 2 things must be met for case management

Answer 1

1) federal court judge MUST schedule conference for schedule conference on pretrial matters and
2) federal court judge must also hold final pretrial conference to order final pretrial order regarding pretrial conference

Question 2

what material is discover able (2 things)

Answer 2

1) METHOD of discovery must be proper AND

2) material sought must also be w/i proper SCOPE of discovery as well.

Question 3

Methods of discovery

Answer 3

1) automatic prompt disclosure and mandatory discovery planning conference

2) presupmtive limits on traditional methods 
(A) the deposition 
(B) interrogatories 
(C) Request for Physical or Mental Exam
(D) Electronic Discovery 
(E) Request for Admission 

(3) witness disclosures
(4) Duty to supplement

Question 4

Automatic prompt disclosure and mandatory discovery planning conference rule

Answer 4

the parties MUST meet to discuss a discovery plan and BEFORE any other discovery method may be used EACH SIDE w/o awaiting any request must disclose 4 things

Question 5

What 4 things must automatically be disclosed without any request

Answer 5

1) witness
2) documents
3) damages
4) insurance

1) all potential supporting WITNESSES must be disclosed
2) all relevant supporting DOCUMENTS must also be disclosed
3) any DAMAGES computation (how arrived at that amount)
4) relevant INSURANCE coverage

Question 6

5 items for presumptive limits on traditional methods

Answer 6

(A) the deposition 
(B) interrogatories 
(C) Request for Physical or Mental Exam
(D) Electronic Discovery 
(E) Request for Admission

Question 7

what is the only discovery method that can be used on a non-party

Answer 7

deposition

Question 8

Deposition limits

Answer 8

each side only gets 10 and can only be 7 hours a piece

Question 9

Interrogatories

Answer 9

written questions to be answered w/i 30 days from service in writing under oath

Question 10

what are the limits on interrrogatories?

Answer 10

only 25 can be served on a party, which as the option to produce business records for which answers can be ascertained

Question 11

what is the only discoverable device that needs a court order?

Answer 11

PHYSICAL OR MENTAL EXAMINATIONS

Question 12

physical or mental examination

Answer 12

only discovery device that requires court order will be granted upon good cause shown

Good cause= no less intrusive way to get evidence

Question 13

limits on electronic discovery

Answer 13

parties need not initially produce electronic stored information if can show it would be an undue burden BUT none the less court can order production upon good cause shown

Question 14

Request for admission

Answer 14

party may request other party to admit facts as true or documents genuine and request will be admitted unless denied within 30 days of serving

Question 15

Witness disclosures

Answer 15

parties must make full disclosure of all testifying experts including reports at least 90 days before trial and parties must also disclose names of layman witness who will testify live or through deposition

Question 16

How many days do expert witnesses have to be disclosed?

Answer 16

90 days before trial

Question 17

how many days to layman witnesses need to be disclosed

Answer 17

30 days before trial

Question 18

is there a duty to update parties?

Answer 18

YES, duty to supplement: each side has automatic ongoing obligation to update prior disclosure with any NEWLY DISCOVERY INFO

Question 19

What 3 things make items w/i scope of discovery?

Answer 19

1) relevant
2) proportionate
3) not privileged

Question 20

relevant information for discovery

Answer 20

material must be relevant to any claim or defense and NEED NOT BE ADMISSIBLE AT TRIAL

Question 21

do materials have to be admissible at trial to be discoverable?

Answer 21

NO. NEED NOT BE ADMISSIBLE AT TRIAL just relevant to any claim or defense

Question 22

proprotinate for discovery

Answer 22

need for discovery must outweigh burdens of discovery in light of stake of lawsuit and parties rescources

Question 23

work product

Answer 23

material that has been prepared for anticipation of litigation and not in ordinary course of business

(expectation of litigation)

Question 24

is privileged material discoverable?

Answer 24

generally no

Question 25

2 types of work product

Answer 25

1) attorneys notes and attorneys impressions | 2) everything else besides attoney mental impressions

Question 26

attorneys and attorneys mental impressions?

Answer 26

ARE NEVER discoverable. Completely not discoverable.

Question 27

when something is work product discover able?

Answer 27

When not attorneys mental shit and must show 1) SUBSTANTIAL NEED FOR MATERIAL and 2) suffer UNDUE HARDSHIP if not going to get the matieral

Question 28

ex of when work product allowed to be discovered

Answer 28

when a witness has died

Question 29

4 types of sanctions during discovery

Answer 29

1) failing to respond to discovery request 2) failing to disclose, as part of automatic prompt disclosure 3) for violating a court order compelling discovery 4) for destroying electronically stored information when litigation foreseeable

Question 30

sanctions for failing to respond to discovery request

Answer 30

after certifying good faith attempt to obtain discovery, party may move to compel and will receive its fees and costs incurred in obtaining discovery

Question 31

sanctions for failing to disclose , as part of automatic prompt disclosure

Answer 31

may not use material not discovered UNLESS show court a substantial excuse for non-disclosure

Question 32

sanctions for violating a court order compelling discovery (harsh)

Answer 32

court may bar party from presenting evidence or presenting entire claims or defenses

Question 33

sanctions for destroying electronically stored information when litigation is foreseeable

Answer 33

court may adverse remedy prejudice of destruction (make adverse inference) but if destroyed 2) intentionally, court can bar presentation of evidence or bar entire claim or defenses

Question 34

work product

Answer 34

``` qualified immunity (not absolute): - Created by ATTY in anticipation of litigation ```

Question 35

does work product only apply to attorneys?

Answer 35

NO | - Attorney can direct a party or representative to gather the evidence, and will still be held as work product.

Question 36

what type of privilege is work product

Answer 36

qualified immunity (not absolute)

Question 37

what must apply for work product

Answer 37

1) if it is PREPARED by a party OR his representative 2) IN ANTICIPATION of litigation - material created by L or rep in anticipation of litigation - Mere possession by an attorney of factual info does not constitute work product

Question 38

does mere possession by an attorney of factual information constitute work product that is exempt from litigation

Answer 38

NO. only if it is 1)prepared by a party or representative AND 2) in anticipation of litigation

Question 39

for a party to survive a SJ motion does their affidavit need to include admissible evidence of genuine issue of material fact

Answer 39

YES, cannot show evidence by inadmissible hearsay

Question 40

what is the rule for when the opinion of an expert consulted in anticipation of litigation is doscverable

Answer 40

discoverable if a party INTENDS to call the expert as a trial witness

Question 41

what is rule for discovery of the opinion of an expert witness who is retained in anticipation of litigation but who is NOT expected to testify at trial *consulting expert)

Answer 41

discoverable ONLY upon showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means - absent such circumstances, these opinions are not discoverable, regardless of whether the nontestifying expert was informally consulted or w/e she was retained or specially employed