class 7 discovery controlling abuse

Question 1

ensuring compliance, remedies

Answer 1

Rule 26(g):  Signing requirement and sanctions for improper certification “without substantial justification”
Rule 37(a):  Motion to Compel:  must include a certification that the movant has in good faith conferred or attempted to confer to obtain the discovery without court action.  Note provision that the court “must, after giving an opportunity to be heard” order reasonable expenses including attorneys’ fees to the party who loses the motion.
Rule 37(b):  Failure to Comply with a Court Order:  more severe sanctions.
Rule 37(c):  Failure to Disclose, to Supplement an Earlier Response, or to Admit:  they are not allowed to use that information or witness “unless the failure was substantially justified or is harmless”.  Court may also order expenses to the other side or impose other sanctions.  See Prob 1(a), (c)

Question 2

37(d) Party’s Failure to Attend its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection:

Answer 2

motion for sanctions must include certification re attempt in good faith to obtain relief without court action.
Not excused on ground that the discovery was objectionable unless there is a pending motion for a protective order.
In addition to other possible sanctions, court “must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.”

Question 3

Rule 37(e) New rule specific to spoliation of ESI

Answer 3

If ESI that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a judgment.

Question 4

all about rule 26

Answer 4

Think chronologically
Outline the rule and focus on the important aspects of each section, including important phrases
Do the exercises in the book

Question 5

other rules to study and memorize

Answer 5

Rule 16: pretrial conference
Discovery tools: Rules 30, 33, 34, 35, 36
Rule 37: Sanctions – focus on the different types of violations, and sanctions appropriate for each; note the “good faith attempt to confer” requirement