Class 4 discovery

Question 1

Some introductory points: as in look at for test

Answer 1

It is the parties who initiate and control discovery, with the judge in the background unless there is a dispute;
Typical discovery occurs in stages, starting with the cheapest, which then lays the groundwork for the more expensive forms
Distinguish between required disclosures and other discovery requests
Keep in mind the timing for providing disclosures and making and responding to requests, as well as the distinction between discovery from parties versus non-parties

Question 2

Duty to Preserve

Answer 2

“Trigger date”: “The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.”
Scope of that duty: Whose documents?
Includes individuals likely to have discoverable information
Scope of that duty: What must be retained?
Party must retain all relevant documents in existence at the time the duty to preserve attaches, and any relevant documents created thereafter.

Question 3

Rule 26(a)(1) Initial Disclosures

Answer 3

Except as exempted under (1)(B) or otherwise stipulated or ordered, a party MUST, without awaiting a discovery request, provide:
(1) Name and address/number for individuals likely to have discoverable information, and subject of info and (2) Copy or description of all documents, ESI and things in party’s possession, custody or control
that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(3) Computation of damages and materials upon which that computation is based; and
(4) Disclose any insurance agreement which may be applicable.

Question 4

Time for Initial Disclosures, 26(a)(1)(C):

Answer 4

At or within 14 days after the parties’ Rule 26(f) conference unless a different time is set
Rule 26(f) conference is supposed to take place as soon as practicable and at least 21 days before a pretrial scheduling conference under Rule 16(b)
For parties joined or served later, initial disclosures must be made within 30 days after being joined or served unless a different time is set
Supplementation required under 26(e)

Question 5

26(a)(3) Pretrial Disclosures

Answer 5

In addition to previous disclosures, at least 30 days before trial, parties must provide information regarding witnesses, deposition testimony, and exhibits to be presented at trial

Question 6

26(c) Protective Orders

Answer 6

Court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense; wide range of options

Question 7

26d

Answer 7

timing and sequence

Question 8

26e

Answer 8

supplementation

Duty applies where necessary to correct previous disclosure or response

Question 9

26g

Answer 9

Signing of Disclosures, Discovery Requests: Discovery equivalent of Rule 11

Question 10

rule 30

Answer 10

depositions

Question 11

interrogatories

Answer 11

rule 33

Question 12

requests for admission

Answer 12

rule 36

Question 13

Rule 34 Production of Documents, ESI and Things, or Entering onto Land

Answer 13

(a) A party may request production from any other party of any documents, ESI, or tangible things, or may request entry onto designated property to inspect, photograph, test, etc.
Documents or property must be in the responding party’s possession, custody or control
Limited in scope by 26(b) (relevance to any party’s claim or defense and proportional)
No limitation on number of documents or things you can request
Limits imposed on ESI by Rule 26(b)(2)(B)
Overall limits for requests that are unreasonablycumulative, duplicative, etc. under 26(b)(2)(C), and for privilege

Question 14

rule 34b

Answer 14

(1) Contents of the request:
(A) describe with reasonable particularity the item(s) to be inspected;
(B) specify reasonable time, place, and manner for inspection; and
(C) may specify form of ESI
(2) Responses and Objections
(A) respond in writing within 30 days of service unless otherwise agreed or ordered.
(B) must respond as to each item
(C) objection must specify part of request
(D) may object to requested form of ESI but state alternative
(E) documents to be produced as kept in the usual course of business or to correspond to request; ESI to be produced in a form in which it is ordinarily maintained or in a reasonably usable form; a party need not produce the same ESI in more than one form

Question 15

rule 34c

Answer 15

Nonparties may be compelled to produce documents, ESI or things or permit an inspection pursuant to Rule 45 (Subpoenas)

Question 16

rule 30 depositions by oral examinations

Answer 16

Unless leave is obtained, limitation to 10 depositions by each side (plaintiffs, defendants, third-party defendants); no more than one deposition of any person
(6) Notice or subpoena directed to an organization – the organization must designate the person to testify on its behalf as to the matters described in the notice
Objections – state them concisely on the record; do not instruct deponent not to answer unless necessary to preserve a privilege, enforce a limitation ordered by the court, or to present a motion under (d)(3).

Question 17

rule 35 physical and mental evaluations

Answer 17

Court may order a party whose mental or physical condition is in controversy to submit to a physical or mental exam
Order must be made forgood cause and on notice to parties and person to be examined
Obtaining examiner’s report