Chapter 10 Flashcards
Relevance for discovery purposes is broad and requires only that information sought will lead to (1). In fact, names and locations of even possible witnesses should already be given in the (2). (3) must be revealed then, too. (4) that can be used to satisfy judgments must be given up without a discovery request.
- admissible evidence 2. initial disclosure 3. Potentially relevant documents/records 4. Liability insurance policies
3 types of statements for discovery purposes
- witness statements 2. party statements to party’s attorney 3. party statements made to anyone else
A written statement made by a (1) that is in the possession of an (2) is discoverable because it is (3). A (4), however , is not discoverable. Statements made by a party to (5) are not discoverable, but statements (6) may be obtained upon demand.
- nonparty witness 2. adversary 3. tangible 4. statement 5. his own lawyer 6. in possession of anyone else
3 basic kinds of experts
- testifying experts 2. consulting experts 3. informally consulted experts (not retained but have provided info–not discoverable)
4 things that must be disclosed about expert witnesses in discovery
- identity of expert 2. subject matter to testify about 3. substance of expert’s facts and opinions 4. summary of grounds for each opinion
Further discovery of an expert–deposition, subpoena of files–may be obtained only by (1) and (2). An expert can be deposed only after the (3) has been submitted.
- motion 2. court order 3. written report of expected testimony
(1) experts are not subject to discovery process except when it is impracticable to (2). This is in effect a (3) for the work of the consulting expert. The only exception regards reports of the physician’s (4).
- consulting 2. obtain facts and opinions another way 3. qualified privilege 4. mental or physical examination
If one party is withholding info because of privilege, it must (1); otherwise, the privilege may be (2).
- notify the other party 2. waived
In federal civil cases based on (1), federal privilege law applies. In federal cases based on (2), state privilege rules apply.
- federal question jurisdiction 2. diversity jurisdiction
Federal privilege laws are not (1) but are based on (2). By contrast, state privilege laws are developed in (3) and (4).
- codified 2. precedent 3. courts 4. legislatures
Regarding work product, (1)–tangible items prepared by party or representatives–is protected by a (2) and discoverable by a showing of (3) because discovery by other means would be unduly difficult. Another tier of work product is (4), which is absolutely protected.
- trial preparation materials 2. qualified privelege 3. substantial need 4. mental impressions, conclusions, opinions and legal theories of the lawyer
7 steps of discovery process
- what facts are needed? 2. what facts have already been obtained informally? 3. What “missing” facts must still be obtained? 4. What discovery methods are most effective for obtaining the missing facts? 5. What facts, witnesses already Idd informally must be pinned down? 6. What restrictions does client’s budget have on the plan? 7. In what order should the discovery proceed?
3 reasons to depose unfavorable witnesses
- lean in detail what witnesses will say 2. reveal inconsistencies 3. narrow testimony by reavealing witness’ uncertainty on topics
2 ways Rule 26 attempts to expedite the discovery process
- imposes the duty to disclose basic info and witnesses without waiting for formal discovery requests 2. requires court to set scope, timing, extend of discovery and disclosure (ASAP)
Discovery should start as soon as (1) permit and as soon as (2). One requirement is that parties have (3). In state court, if (4) and (5) are done, discovery may begin at the pleading stage.
- state/federal rules 2. practicable 3. met 4. prefiling investigation 5. preparation work
