CivP 10 - Discovery

Question 1

Discovery

Answer 1

Discovery is the phase of litigation in which the parties find out what the other parties and witnesses know. The idea is to avoid trial by ambush—we want things known before we go to trial.

Question 2

INITIAL REQUIRED DISCLOSURES:

when??

what?

Answer 2

Initial required disclosures are information that each party must give to other parties—even though the parties have not asked for it.

Unless a court order or stipulation of parties says otherwise, within 14 DAYS of the Rule 26(f) conference, each party MUST disclose certain information.

MUST DISCLOSE: **
* Names, numbers, and addresses of people with discoverable information if might be used to support claims or defense.
Documents, descriptions of docs, ESI, tangible things, if **within the disclosing party’s possession or control** and **might be used to support claims or defenses**, UNLESS solely for impeachment.
copies or descriptions of documents, electronically stored information, and tangible things that are in the disclosing party’s possession or control and that the disclosing party may use to support its claims or defenses, unless solely for impeachment.
**Computation of damages:
computation of damages claimed by the disclosing party and copies of materials upon which the computation is based
***Insurance coverage: **
copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.

Question 3

Initial required disclosure:
Identities of Persons with Discoverable Information that the Party May Use to Support Her Claims or Defenses

Answer 3

The names, telephone numbers, and addresses of persons with discoverable information, and the topics on which they have discoverable information, who the party may use to support her claims or defenses, must be disclosed as an initial disclosure.

Question 4

Initial required disclosure:
Documents and Things that the Party May Use to Support Her Claims or Defenses

Answer 4

Documents and tangible things that the party may use to support her claims or defenses must be disclosed as an initial disclosure.
This includes photographs, records, videos, and electronically stored information (“ESI”).
So photos taken on a smart phone, etc., are included, as well as good old-fashioned papers.
Copies or a descrip- tion of the documents may be produced instead of the document itself.

a. Must Be in Party’s Custody and Control: Documents and tangible things that are not in the party’s control need not be disclosed.

Question 5

Employee sues Company, alleging that Company wrongfully fired Employee because of her age. Company has an internal memo suggesting that Employee’s age was the basis for the firing. Must Company disclose the existence of this memo in its required disclosures?

Answer 5

NO, not used to SUPPORT their claims or defenses.

Same facts, but now Employee has in her possession a copy of the internal memo suggesting that she was fired based on her age. Must Employee disclose the existence of the memo? YES. bc she will use it to support her case.

Question 6

Initial required disclosure: Computation of Relief and Along with Supporting Documents/ESI

Answer 6

Anyone claiming monetary relief must provide a “computation,” supported by documents or ESI of the amount sought as an initial disclosure.

Question 7

Initial required disclosure: Insurance Coverage

Answer 7

The parties must disclose any insurance that might cover all or part of the judgment in the case even though the existence of the insurance probably would not be admissible at trial. “Discoverable” is broader than “admissible.”

Question 8

Penalty for Failure to Disclose

Answer 8

If a party fails to disclose material that was required to be disclosed, that party cannot use the undisclosed material in the case unless the failure to disclose was substantially justified or harmless.

Question 9

REQUIRED DISCLOSURES ABOUT AN EXPERT WITNESS

Answer 9

Later in the case, at a time directed by the court, each party must identify expert witnesses (”EWs”) who may provide testimony at trial (that is, opinion testimony) and provide certain other disclosures.

• Consulting experts need NOT be disclosed, absent exceptional circumstances.
•Testifying experts must be disclosed
• Written report by expert must be disclosed.
• Draft reports and communication are protected work product.

Question 10

Distinguish “Consulting Experts”.

Discoverable?

Answer 10

Suppose a party hired an expert to help with preparing a case, but she doesn’t intend to call that expert to testify at trial.
Such an expert is not an EW, but rather a consulting expert.
Facts known and opinions held by consulting experts are generally not discover- able absent “exceptional circumstances.”

Question 11

Contents of Disclosures— EWs

Identity and Report

Answer 11

As to an EW “who may be used at trial,” each party generally must disclose to the other parties the identity of and written report prepared by the EW.
The written report must include:
• Opinions that the EW will express;
• The bases for the opinions;
• The facts used to form the opinions;
• The EW’s qualifications; and
• How much the EW is being paid.

Earlier drafts of the EW report and communications between the lawyer and the EW are work product.

Question 12

Deposition of EW

Answer 12

After the disclosure above, a party may take the deposition of the EW.
Best practice is for that party to subpoena the EW to compel her attendance.
(Without the subpoena, the expert may not show up even if the parties agreed to the deposition.)
The deposing party ordinarily will bear the cost of the EW’s deposition. (The court will set a per-hour fee.)

Question 13

Failure to Disclose: EW

Answer 13

If a party fails to disclose material that was required to be disclosed, she cannot use the EW in the case unless the failure was justified or harmless.

Question 14

REQUIRED PRETRIAL DISCLOSURES

Answer 14

No later than 30 days before trial, the parties must give detailed information about their trial evidence, including identity of witnesses who will testify live or by deposition and documents, ESI, and other things that they intend to introduce at trial.
•No later than 30 days before trial
• Identities of Witnesses
• Documents
• No Suprises

Question 15

DISCOVERY TOOLS

Answer 15

Once the initial disclosures have been made, parties may request information from one another.
However, assuming that no court order or stipulation provides otherwise, a party cannot send discovery requests to another party until after the Rule 26(f) conference.

Minor exception: requests to produce can be served earlier (once 21 days has passed since service of process).
Such a request is treated as though it was served at the Rule 26(f)conference.
Generally, the cost of responding to discovery is borne by the responding party.

Question 16

The plaintiff files suit and has process served on the defendant, along with interrogatories. Is this OK?

Answer 16

NO, you cannot send interrogatories until AFTER the 26(f) conference.

Question 17

5 deposition tools

Answer 17

1. Deposition
5. Request for Admission

Question 18

Depositions:

Answer 18

• Live tesitmony of parties or non-parties, under oath, given in response to questions by counsel.

In a deposition, a person gives live testimony in response to questions by counsel or pro se parties.
The questions are usually oral, but can be written (if written, they are read by the court reporter).
The deponent testifies under oath, and the deposition is recorded by sound or video or stenographically so that a transcript can be made.
Both parties and nonparties may be deposed. The deponent isn’t required to review her records prior to the deposition; testimony is from present recollection.

Question 19

Depositions:
a. Notice of Deposition; Subpoenas

Answer 19

NOTICE to PARTIES: A party does not need to be served with a subpoena. A notice of deposition is sufficient to compel her appearance.

SUBPOENAS to NONPARTIES: A nonparty must be served with a subpoena or else she is compelled to attend. If the party noticing the deposition fails to do so and the deponent fails to show up, the noticing party may be liable for costs to the other parties.

Question 20

Depositions:
b. Subpoena Duces Tecum

Answer 20

b. Subpoena Duces Tecum
•A subpoena duces tecum requires the deponent to bring requested materials with her to the deposition.

Question 21

Depositions:
c. Limit on Deposition of Nonparty

Answer 21

c. Limit on Deposition of Nonparty
Unless a nonparty agrees otherwise, the farthest she can be required to travel is 100 MILES from where the nonparty resides or is employed.

Question 22

Depositions:
d. Deposition of Organization

Answer 22

d. Deposition of Organization
When the party is suing an organization, she may “notice” a deposition of an organization, describing the facts that she wants to discover in the deposition.
The organization then must designate a person(s) to testify on that matter.

Question 23

Plaintiff sues Car Co., alleging that defective design of a fuel tank led to his injury. Plaintiff wants to take the deposition of Car Co.’s engineer responsible for design of the tank, but does not know the identity of that person. What are P’s options?

Answer 23

Plaintiff could use interrogatories to Car Co. to request identification of the engineer and then take her deposition.
Alternatively, Plaintiff could serve a notice of deposition on Car Co. and describe the matters for examination.
Then Car Co. must designate the proper person to be deposed

Question 24

e. Limits on Depositions

Answer 24

A party cannot take more than 10 depositions or depose the same person twice without court approval or stipulation. Depositions cannot exceed one day of seven hours unless the court orders or parties stipulate otherwise.

Question 25

f. Use of Depositions at trial:

Answer 25

Subject to the rules of evidence, depositions may be used at trial:
• To impeach the deponent;
• For any purpose if the deponent is an adverse party; or
• For any purpose if the deponent (regardless of whether a party) is unavailable for trial (for example, illness, out of the country, etc.), unless that absence was procured by the party seeking to intro- duce the evidence.

Question 26

Interrogatories.

Sent to?

Limit?

Timing?

legal contentions?

Answer 26

Interrogatories are written questions to be answered in writing under oath.
• Interrogatories are sent ONLY TO PARTIES, NEVER TO NONPARTIES.
• The MAXIMUM number, absent a court order or stipulation, is 25, including subparts.
• Interrogatories are to be ANSWERED WITHIN 30 days from their service.
• A party must answer interrogatories based upon information reasonably available. (so have to look them up reasonably).
• If the answers to interrogatories can be found in business records and the burden of finding the answer would be about the same for either party, the responding party can allow the requesting party to have access to the records.
• Contention interrogatories, that is, interrogatories that inquire about legal contentions, are permitted.

Question 27

Plaintiff serves interrogatories on Defendant asking about Defendant’s legal contentions in the case. Defendant objects, and argues that interrogatories are permitted only to inquire about facts, not legal contentions. Outcome?

Answer 27

Defendant’s objection is bogus.
Contention interrogatories are fine.

Question 28

Request to Produce

Answer 28

A request to produce asks a party to make available for review and copying documents or things, including electronically stored information (“ESI”), or to permit entry on designated property to inspect, measure, etc.

ESI must be produced in the form that the requesting party specifies, but the responding party may object.

The disclosing party must respond to the request in writing within 30 days of service, stating that the material will be produced or asserting objections.

Only parties can be sent a request to produce, but a nonparty can be served with a subpoena to require her to disclose the same types of information.

Question 29

Medical Exam (Physical or Mental)

Answer 29

•Court order required to compel
• Parties only
• Health must actually be in controversy
• Good cause.

A court order is required to compel a party (or person in the party’s custody and control) to submit to a medical exam.

The requesting party must show: (1) that the person’s health is in actual controversy and (2) good cause.

Custody and control is narrow (for example, an employee is not in the custody or legal control of an employer, but a child is in the custody and legal control of her parent).

The requesting party chooses the licensed medical professional to perform the exam. Medical professional writes a report and gives it to the requesting party.

a. Requesting a Copy of the Report by the person examined:
Once the court orders a medical exam and the medical professional conducts the exam, the medical professional will write a report and give it to the requesting party.
The person undergoing the exam can get a copy of the report.
If the person requests and obtains the report, she must (on request) produce all medical reports by her own doctors about that same medical condition.
She also waives any doctor-patient privilege that she may have had with her doctor regarding that condition.

Question 30

Request for Admission

Answer 30

• Written request asking opponent to ADMIT facts
• Must respond within 30 days.
• Response: Deny, deny knowledge, object, or admit.
• Reasonable unquiry must be made before answering.

A request for admission is a written request that someone admit certain matters.

The responding party must respond in writing within 30 days of service, either denying specifically or objecting.

But if the responding party states that she has made a reasonable inquiry and cannot find enough information from which to admit or deny, she can state that she doesn’t know the answer.
If the party fails to deny a proper request, the matter is deemed admitted.

Requests for admission are often used to authenticate documents—“admit that this is the contract.”

Question 31

The plaintiff sends the defendant a request for admission saying “admit or deny that you were drinking alcohol while driving your car.” If the defendant fails to deny specifically (or to object to the request) in writing within 30 days, what happens?

Answer 31

The defendant is deemed to admit that he was drinking alcohol while driving his car.

Question 32

Signature Requirement for Discovery

Answer 32

Parties sign substantive answers to discovery under oath.
Rule 11 does not apply to discovery documents.
However, by another rule, every discovery request and response is signed by counsel certifying it is:
• Warranted;
• Not interposed for an improper purpose; and
• Not unduly burdensome.

Question 33

Duty to Supplement

Answer 33

If new facts come to light after responding to discovery that make a required disclosure, interrogatory, request for production, or request for admission incomplete or incorrect, the party must supplement her response to discovery.
This is a self-policing obligation.

Question 34

Scope of Discovery

Answer 34

•Party can discover anything that is RELEVANT TO A CLAIM OR DEFENSE AND PROPORTIONAL TO THE NEEDS OF THE CASE.
Unlike initial disclosures, something harmful to you may be discoverable using the regular discovery tools.

And note that “discoverable” is broader than “admis- sible.” Information need not be admissible to be discoverable.

Question 35

Can a party discover something like hearsay, even though it would not be admissible at trial?

Answer 35

Yes—just so it’s relevant to a claim or defense and proportional to the needs of the case.

Question 36

Plaintiff seeks discovery from Defendant of relevant emails. The emails have been deleted from Defendant’s server. They can be recovered or restored only at enormous cost. Defendant asserts that the material is “not reasonably accessible because of undue burden or cost.”
What are D’s options?

Answer 36

Defendant can move for a protective order; alternatively, Defendant can object to discovery and Plaintiff will have to move to compel discovery. Suppose the court finds the emails are not reasonably accessible because of undue burden or cost. Now what does Plaintiff try to do?
If Plaintiff does show good cause for discovery, the court can order production and allocate expenses between the parties.

Question 37

Protective Orders (ESI)

Answer 37

• D can move for protective order or object to discovery of ESI.
•Undue costs are considerations for ESI
• If Plaintiff does show good cause for discovery, the court can order production and allocate expenses between the parties.

Question 38

Privilege

Answer 38

A party can object to discovery on the basis of evidentiary privilege– for example, confidential communications between attorney and client.

Question 39

Work Product Protection

Answer 39

• Material prepared “IN ANTICIPATION OF LITIGATION”

Work product or “trial preparation material,” which is material prepared in anticipation of litigation, is protected.
In federal court, work product need not be generated by a lawyer.
It can be prepared by the party herself or by any representative of a party (for example, a private investigator).

a. Qualified vs. Absolute Work Product
Work product sometimes may be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way.
This is called “qualified work product.”
Some work product, however, is absolutely protected and cannot be discovered.
“Opinion work product” consists of mental impressions, conclusions, opinions, or legal theories of the disclosing party and cannot be discovered.

Question 40

When can work product be discovered

Answer 40

•Must show substantial need and undue hardship (qualified work product)
• BUT, opinion work product cannot be discovered (mental impressions, conclusions, or legal theories of the disclosing party)

Question 41

Work product Exceptions: things that are discoverable…

Answer 41

The identity of people with discoverable information is NOT work product.

Party’s Own Statement Is Discoverable: Notwithstanding work product, a party has a right to demand discovery of any previous statement that she has made regarding the case.

Question 42

Withholding discovery:

Answer 42

•Must claim protection expressly
• Must prepare privilege log.

Question 43

Asserting Privilege or Work Product

Answer 43

• If a party withholds discovery or seeks a protective order based on privilege or work product, she must claim the protection EXPRESSLY and DESCRIBE the materials IN DETAIL.

•She does this in a document, called a PRIVILEGE LOG, that lists the materials protected by date, author, recipient, and privilege or protection claimed.
• It must be in enough detail to allow the judge to determine whether the material is protected.

What is this document called? PRIVILEGE LOG!

Question 44

a. Inadvertent Disclosure of Privileged or Protected Material

Answer 44

If a party inadvertently produces privileged or protected material, she should notify the other party promptly.
The other party then must return, sequester, or destroy the material pending a decision by the court about whether there has been a waiver.

Question 45

ENFORCEMENT OF DISCOVERY RULES

Answer 45

There are three ways courts get involved in discovery disputes:
1. Protective order.
2.
3.

Question 46

Protective Order

Answer 46

•Must try to work out WITHOUT court involvement.
• Ct can deny and order discovery, limit discovery, or permit discovery within terms.

Party Seeks Protective Order: If the responding party thinks a discovery request subjects her to annoyance, embarrassment, undue burden or expense (for example, ESI is not reasonably accessible without undue expense, or the request is cumulative and not proportional to the case), she can move for a protective order.

The party must certify that she tried in good faith to resolve the issue without court involvement; that is, she asked the other side to “meet and confer.”

a. Actions the Court Can Take: If the court agrees, it can:
• Deny discovery;
• Limit discovery; or
• Permit discovery on specified terms.

Question 47

Plaintiff and Defendant are involved in litigation over a trade secret held by Defendant. Defendant is worried that if Plaintiff discovers the trade secret, Plaintiff will use the secret in the marketplace. Defen- dant can request….

Answer 47

Defendant can request a protective order that the trade secret be used only in litigation and not used in the marketplace.

Question 48

Party Responds, But Not Fully

Answer 48

PARTIAL FAILURE:
If a party responds to a request but fails to answer all questions because she objects to them (or some of them), she may be compelled to comply by court orde.

Question 49

No Response to Discovery Request

Answer 49

If a responding party fails completely to attend her deposition, respond to interrogatories, or respond to requests for production, she will be subject to various sanctions plus costs.

Question 50

SANCTIONS AGAINST A PARTY

Answer 50

The party seeking sanctions generally must certify that she tried in good faith to get the information without court involvement; that is, to try to “meet and confer.”

Question 51

Sanctions for: Less than a Full Response

Answer 51

When a producing party responds, but not fully (PARTIAL FAILURE), sanctions are a two-step process.
• The requesting party moves for an order compelling the producing party to answer the unanswered questions, to produce the unproduced material, etc., plus costs (including attorneys’ fees) of bringing the motion.
• If the producing party violates the order compelling her to answer….
• The court can enter “MERITS” SANCTIONS, along with costs and attorneys’ fees for bringing the motion.
• The producing party could be held in contempt for violating a court order (except there is no contempt for refusal to submit to a medical exam).

Question 52

Sanctions for: No Response

Answer 52

Total failure = merits sanctions.

If the producing party fails to respond at all, the court can enter “merits” sanctions right away, plus costs (and attorneys’ fees for the motion). There is no need to get an order compelling answers; you go directly to “merits” sanctions.

Question 53

Merits Sanctions

Answer 53

A judge is free to choose among the following as “merits” sanctions.
• Establishment order (establishes facts as true)
• Strike pleadings of the disobedient party (as to issues re the discovery)
• Disallow evidence from the disobedient party (as to issues re the discovery)
• Dismiss plaintiff’s case (if bad faith shown)
• Enter default judgment against defendant (if bad faith shown)

Question 54

What sanctions are only allowable if bad faith is shown?

Answer 54

Dismiss P’s case
Enter default judgement against D.

Question 55

Litigation Hold

Answer 55

•Failure to preserve ESI: Court orders measures to CURE harm.

When litigation is reasonably anticipated, parties must preserve discoverable information. ESI has some special rules.

Suppose ESI is truly lost—it cannot be recovered or restored. (This is different from when the ESI could be restored.) And suppose it was lost because the party in control of it failed to take reasonable steps to preserve it.
The court may “order measures” to cure the harm caused to the other party.

• Court can enter an “adverse inference” order; that is, tell the jury that it must presume that the lost information would be unfavorable to the party that lost the ESI.
•Court can enter “merits” sanctions.
For either, ONLY if the party who lost the ESI acted with INTENT to deprive the other party of the ESI.

The court also may enter a default against the defendant when her conduct was in bad faith.