Civil Procedure: Discovery

Question 1

What is discovery and what are the two main categories?

Answer 1

Process for parties to obtain information from each other and third parties. Categories:1. Mandatory disclosures; and2. Requests for information

Question 2

What are the 3 mandatory disclosures and the deadline for each?

Answer 2

Unless otherwise ordered by the court:
1. Initial disclosures: 14 days after discovery conference. FRCP 26(a)(1)(C) 1. If party was served or joined after Rule 26(f) conference, deadline is 30 days after being served or joined. FRCP 26(a)(1)(D)
2. Expert testimony: 90 days before trial. FRCP 26(a)(2)(D)(i) 1. If evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), then the deadline is within 30 days after the other party’s disclosure. FRCP 26(a)(2)(D)(ii)
3. Pretrial disclosures: 30 days before trial. FRCP 26(a)(3)(B)

Question 3

What are the 6 methods of discovery?

Answer 3

1. Mandatory disclosures;
2. Interrogatories;
3. Request for Admissions;
4. Request for Documents and Tangible Items;
5. Requests for Mental or Physical Examinations; and
6. Depositions

Question 4

What type of information is discoverable?

Answer 4

Unless otherwise limited by court order, any information that is:
1. Relevant;
2. 2. Proportional to the needs of the case; and
3. 3. Not privileged

FRCP 26(b)(1)

Question 5

What type of information is not discoverable?

Answer 5

Information that is:* Irrelevant;* Privileged; or* Work product (unless there is a showing of substantial need or undue hardship)

FRCP 26(b)(1)

Question 6

When is information considered relevant for discovery purposes?

Answer 6

If it is likely to make any fact in the dispute more or less likely to be true, regardless of whether it is admissible.

Question 7

What is a Rule 26(f) conference?

Answer 7

Initiates the discovery process. Requires that parties meet “as soon as practicable” to:1. Discuss claims & defenses; and 2. The possibility for settlement * If no settlement is reached, the parties must develop a discovery plan to submit to the court within 14 days

FRCP 26(f)

Question 8

What is the deadline to hold a Rule 26(f) conference?

Answer 8

At least 21 days before scheduling conference is held.

Rule 16(b)

Question 9

Within 14 days of the Rule 26(f) conference, what initial disclosures do parties need to make?

Answer 9

1. Contact info for individuals likely to have discoverable information;
2. 2. Documents that support a party’s claims or defenses;
3. 3. Damages calculation & material upon which the calculation is based; and
4. 4. Insurance agreements that could satisfy all or part of a possible judgment

Rule 26(f)(2)

Question 10

What is a Rule 16(b) conference? By when must the Rule 16(b) conference occur?

Answer 10

Conference where the judge issues a scheduling order detailing deadlines for disclosures, filings, and other discovery issues. FRCP 16(a) Deadline: As soon as is practicable, but within 90 days of D being served, or within 60 days of when D appears, whichever is earlier. FRCP 16(b)(2)

Question 11

Do insurance agreements need be disclosed regardless of whether the other party asks for them?

Answer 11

Yes, insurance agreements are initial disclosures required by Rule 26(a)(1).

Question 12

What are the different types of privilege?

Answer 12

Attorney/client
Doctor/patient
Spousal Priest/penitent
Work product
Journalist (protection from revealing confidential sources)
5th Amendment protection against self-incrimination*

Question 13

Is privilege an absolute bar to disclosure?

Answer 13

Yes, absolute bar.

Question 14

What is considered work product?

Answer 14

Any documents or tangible things prepared in anticipation of litigation or trial by or for another party or its representative.

FRCP 26(b)(3)(A)

Question 15

Are documents prepared in the ordinary course of business considered work product?

Answer 15

No.

Question 16

When is work product discoverable?

Answer 16

If materials are:1. Otherwise discoverable under Rule 26(b)(1); and
2. The party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

FRCP 26(b)(3)(A)

Question 17

What type of work product is almost never discoverable?

Answer 17

Mental impressions, conclusions, opinions, and theories regarding the case.

FRCP 26(b)(3)(B)

Question 18

What types of communications are subject to attorney-client privilege?

Answer 18

Communications that:1. Are between the attorney and client;
2. Were intended to be, and were, in fact, kept confidential; and
3. Were made for the purpose of obtaining or providing legal advice

Question 19

What pretrial disclosures are required for expert and lay witnesses?

Answer 19

• Expert: List of all expert witnesses and any info used to form the basis of their opinions.FRCP 26(a)(2) (Deadline: 90 days before trial, unless ordered otherwise)*
  Lay: List of all witnesses and documents that will used as exhibits at trial. FRCP 26(a)(3) (Deadline: 30 days before trial, unless ordered otherwise )

Question 20

If the expert was specially retained to provide expert testimony, what must their discovery disclosures contain?

Answer 20

1. Name and contact information of the expert;
2. Expert’s final report;
3. Expert’s opinion and credentials;
4. List of all other cases in which the expert has testified in (past 4 years only);
5. Data relied on by the expert; and
6. Amount of compensation to be paid for the study

FRCP 26(a)(2)

Question 21

Are materials developed by non-testifying experts in anticipation of litigation discoverable?

Answer 21

No, unless exceptional circumstances make it impracticable for the parties to obtain the info by other means.

Question 22

If the expert does not provide a written report, what must their disclosures contain?

Answer 22

1. The subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and2. Summary of the facts and opinions to which the witness is expected to testify

FRCP 26(a)(2)(C)

Question 23

Define: depositions

Answer 23

Proceedings held during the course of discovery (before a trial) where a witness is questioned orally by an attorney under oath

Question 24

What is the effect of giving notice of a deposition on parties? Nonparties?

Answer 24

• Parties: Reasonable notice compels attendance* Nonparties: Notice doesn’t force a party to appear, a subpoena may need to be issued

Question 25

What are the **geographical/travel limitations** when deposing a **nonparty**?

Answer 25

Deposition cannot be more than **100 miles** from where the person lives & works.

Question 26

What are the rules on deposing a **corporation**?

Answer 26

Parties can **subpoena** corporations, and then the corporation/entity must then **designate** one or more **officers, directors, or managing agents**, or other persons to testify on its behalf about **information known or reasonably available to the organization.**

Question 27

What is the **scope** of a deposition?Are **objections** to questions allowed?

Answer 27

Scope: Anything that is **discoverable,** even if the evidence itself would not be admissible. ⚠️ Remember that privileged information is almost _never_ discoverable. Objections are **allowed** if nonargumentative. Although objections will be noted in the transcript, the **deponent must answer anyways** (unless privileged). ## Footnote [FRCP 30](https://www.law.cornell.edu/rules/frcp/rule_30)

Question 28

**How many** depositions are allowed per party?What is the **maximum length of time** a deposition can last?

Answer 28

**10** per party unless good cause is shown. Each deposition is limited to **one day** for a maximum of **7** hours, unless otherwise dictated by the court. ## Footnote [FRCP 30(a)(2)](https://www.law.cornell.edu/rules/frcp/rule_30)

Question 29

Define: interrogatories

Answer 29

**Written** questions used for disclosure of routine information. ## Footnote [FRCP 33.](https://www.law.cornell.edu/rules/frcp/rule_33)

Question 30

A party can serve a **maximum** of ____ interrogatories on another party

Answer 30

**25** (including all discrete subparts), unless court approves or other party agrees. ## Footnote [FRCP 33(a)(1).](https://www.law.cornell.edu/rules/frcp/rule_33)

Question 31

Can interrogatories be served on **nonparties**?

Answer 31

No, only on parties.

Question 32

A party served with interrogatories has ____ days to respond

Answer 32

**30** days. ## Footnote [FRCP 33(b)(2)](https://www.law.cornell.edu/rules/frcp/rule_33)

Question 33

What must **responses** to **interrogatories include**?

Answer 33

The response to an interrogatory must:1. Be **in writing under oath**; and 2. Include **objections** with specificity 3. 3. **Signed** by the person answering (or the attorney making the objections) ## Footnote [FRCP 33(b)](https://www.law.cornell.edu/rules/frcp/rule_33)

Question 34

What are **requests for production?**What is the **deadline** for response?

Answer 34

Requests for **documents, tangible evidence and electronic evidence.** Deadline: must respond within **30 days** after the request served. ## Footnote [FRCP 34](https://www.law.cornell.edu/rules/frcp/rule_34)

Question 35

Can **nonparties** be served with **requests for production**?

Answer 35

Yes, may be compelled by **subpoena** under [FRCP 45.](https://www.law.cornell.edu/rules/frcp/rule_45)

Question 36

When can a party **request a mental or physical exam**?

Answer 36

Only when a person's **mental or physical state is in controversy.** Requesting party must show **good cause and** specify the **time, place, manner, conditions, and scope** of the examination, as well as the person or persons who will perform it. ## Footnote [FRCP 35(a)](https://www.law.cornell.edu/rules/frcp/rule_35)

Question 37

What are **requests for admissions** and how can a party respond?

Answer 37

Requests for parties to **admit the truth** of certain evidence. Response options:* **Admit** information is true; * **Deny** information is true;* Explain why party cannot admit or deny; or * * **Object** to request## ## Footnote [FRCP 36](https://www.law.cornell.edu/rules/frcp/rule_36)

Question 38

What is the **deadline** to respond after a **request for admission?**

Answer 38

**30 days** after receipt of request. ## Footnote [FRCP 36(a)(3)](https://www.law.cornell.edu/rules/frcp/rule_36)

Question 39

What is the **effect** if a party **does not object or deny** a request for admission?

Answer 39

Deemed **admitted** for trial. ## Footnote [FRCP 36(a)(3)](https://www.law.cornell.edu/rules/frcp/rule_36).

Question 40

What is a Rule 37(a) **order to compel**?

Answer 40

Orders a noncompliant party to comply with a discovery request. ## Footnote [FRCP 37(a)](https://www.law.cornell.edu/rules/frcp/rule_37)

Question 41

What can a party **compel** another party to do under Rule 37(a)?

Answer 41

* **Answer questions** in a **deposition*** If a **corporate defendant** → **designate** an individual for purposes of deposition* **Answer** an **interrogatory*** **Produce** documents or **permit inspection** of documents ## Footnote [FRCP 37(a)(3)(B)](https://www.law.cornell.edu/rules/frcp/rule_37)

Question 42

What is the prerequisite to filing a **motion to compel**?

Answer 42

Certification that movant made a **good faith attempt to confer** with the person resisting discovery to see if judicial intervention can be avoided. ## Footnote [FRCP 37(a)(1)](https://www.law.cornell.edu/rules/frcp/rule_37)

Question 43

If a motion to compel **succeeds**, what is the result?

Answer 43

* Other party will be **ordered to comply*** **Court may impose sanctions*** Moving party may be entitled to **attorney's fees** ## Footnote [FRCP 37(a)(5)](https://www.law.cornell.edu/rules/frcp/rule_37)

Question 44

What **sanctions** can be imposed if a party fails to comply with a discovery order?

Answer 44

The court may:* Direct that the information at issue must be **viewed in the way that the prevailing party asserts** (ie. if X requests emails that are meant to show evidence of fraud, and Y does not comply with a court order ordering production, the court will assume that the emails actually showed evidence of fraud).* **Prohibit** the disobedient party from **supporting or opposing claims** that the evidence related to* **Strike** pleadings, **stay** proceedings until the order is obeyed, **dismiss** the action, or render a **default judgment** against the disobedient party* Hold the disobedient party in **contempt** ## Footnote [FRCP 37(b)](https://www.law.cornell.edu/rules/frcp/rule_37)

Question 45

If a motion to compel **is denied**, what is the **effect**?

Answer 45

* The court **may** issue a **protective order** barring discovery of the relevant information.* In addition, the moving party **may** be **required to pay attorney's fees** to the other side **unless motion was substantially justified.** ## Footnote [FRCP 37(a)(5)(B)](https://www.law.cornell.edu/rules/frcp/rule_37)

Question 46

**When** is a Rule 26(c) **protective order** issued?

Answer 46

To prevent “annoyance, embarrassment, oppression, or undue burden or expense”

Question 47

What is the **prerequisite** to filing a Rule 26(c) protective order?

Answer 47

Moving party must show that she **conferred or attempted to confer** with the other party **to resolve** the dispute.

Question 48

What does a Rule 26(c) protective order **limit**?

Answer 48

Either:* **Timing** of discovery;* **Scope** of discovery; or* **Forbids** discovery altogether

Question 49

What is the effect of an attorney signing discovery disclosures pursuant to **R****ule 26(g)**?

Answer 49

Certifies that the disclosures are: * Complete and correct (mandatory disclosures only); * Consistent with the rules; * Warranted by existing law; * Not made for an improper purpose; and * Not unreasonably burdensome## ## Footnote (Discovery counterpoint to Rule 11)

Question 50

Both **Rule 11** and **Rule 26(g)** permit a party to file for sanctions against an opposing party. How do they differ?

Answer 50

There is **no safe harbor** for Rule 26(g), so a party served does not have 21 days to correct their error.