Civ Pro - Discovery

Question 1

Mandatory “meet and confer” - purpose and timing

Answer 1

• must meet at least 21 days before the scheduling conference
• discuss claims, defenses, settlements
• develop plan for discovery

Question 2

Scope of Discovery - Federal Rule 26

Answer 2

All matter that is not privileged and relevant to a claim or defense is discoverable

**must also be proportionate (RAABBI)

Question 3

What is not discoverable?

Answer 3

• evidence protected by a privilege
• attorney’s work product
• material prepared in anticipation of the claims

**in addition, it needs to be proportional to the claim (RAABBI)

**“factual, evidentary” work product can be discoverable with showing of substantial need and that it isn’t available by other means

**opinions, theory of attorney never discoverable

Question 4

Scope of Discovery - proportionality requirement

Answer 4

Court’s consider the following factors: (RAABBI)
R - parties’ RESOURCES
A - AMOUNT in controversy
A - relative ACCESS to the info
B - BURDEN on the party
B - BENEFIT on the party
I - its importance in resolving the ISSUE

**court can also shift expenses to party making request

Question 5

Depositions - notice requirement, limitation on number

Answer 5

30 day notice required

“10-7 rule” - no more than 10 total, max of 1 each day of 7 hours

Question 6

Depositions - attorneys cannot:

Answer 6

1. advise client not to answer (exceptions - privilege, violation of court order limiting scope, bad faith on other side)
2. reasons for objections must be succinct

Question 7

Three ways deposition testimony can be used:

Answer 7

1. non-party who is unavailable - hearsay exception of “former testimony” - can be read into evidence
2. to contradict or impeach testifying witness at trial
3. deposition of available or unavailable opposing party always admissible as admission of a party opponent. Can be used to contradict or read into evidence

Question 8

Electronic Discovery - Sanctions

Answer 8

If party negligently failed to preserve ESI necessary for pending litigation and it cannot be replaced, then court will order sanctions (no greater than necesary to cure the prejudice)

if party acted with specific intent to deprive other party of the evidence then prejudice is presumed and:

(1) jury can be instructed to presume evidence was unfavorable or
(2) judge can dismiss claim/enter default judgement