CvlPE Review: DISCOVERY

Question 1

DISCOVERY

What is the default discovery plan?

Answer 1

Level 2 is the default discovery plan and each party is limited to 25 written interrogatories and 50 hours of oral deposition to examine and cross opposing parties, experts, and other witnesses.

Question 2

DISCOVERY

Where can a deposition be taken?

Answer 2

A person’s deposition can be taken in the county where they reside OR if they are a party, also the county of the suit.

Question 3

DISCOVERY

List 5 methods of discovery

(MID PAD)

Answer 3

Five methods of discovery:

1. Requests for admissions, disclosures, and production or inspection of tangible evidence (ADP or IT)
2. Requests for motions to enter and examine real property
3. Interrogatories
4. Depositions (oral or written)
5. Motions for mental and physical examinations of a party

Question 4

DISCOVERY

How to request for information in electronic form?

Answer 4

When a party seeks information in electronic form, they must specifically request production of data and specify the form that they want it in. The responding party must provide the information in electronic or magnetic form if it is reasonably available to them in their ordinary course of business.

Question 5

DISCOVERY

Give an example of protected attorney work product

Answer 5

When a party’s attorney takes notes while taking a witness statement, another party may obtain the witness statement without any special showing of need, but may not obtain the notes because they are protected work product.

Question 6

DISCOVERY

What forms of discovery are available with experts?

(DWD = Drill, Wrench, Duct Tape)

Answer 6

The only permissible discovery tools regarding experts are (1) requests for disclosure, (2) written reports, and (3) depositions.

Question 7

DISCOVERY

How may a party obtain the opinions of a testifying expert witness?

Answer 7

A party may obtain the opinions of a testifying expert witness by a request for disclosure or a deposition.

Question 8

DISCOVERY

What information is available from a purely consulting expert?

Answer 8

A party is NOT entitled to discovery information about a purely consulting expert. No discovery tools to obtain such information.

Question 9

DISCOVERY

When is new or undisclosed evidence allowed introduction at trial?

Answer 9

When a party wants to introduce at trial undisclosed information or testimony of a nonparty witness who was not previously identified in discovery—the court should allow such evidence if it determines that there was good cause for the failure to disclose OR the failure will not unfairly surprise or prejudice the other parties.

Question 10

DISCOVERY

Can P add additional Ds after the deadline for adding parties?

Answer 10

After the deadline for adding parties, P learns of an affiliate of D, P should file motion for leave of court then file and serve amended petition to add D.

Question 11

DISCOVERY

If P requests priviliged information, what can P do to follow up?

Answer 11

If a party responds to a discovery request stating the information is privileged—the requesting party can serve a written request for a description of the withheld materials. Within 15 days of being served with that request, the withholding party must prepare a privilege log describing the withheld information and specific privilege.

Question 12

DISCOVERY

What objections are available at deposition?

(NFL)

Answer 12

At a deposition—the only objections are (1) leading, (2) form, and (3) nonresponsive. (NFL)

Question 13

DISCOVERY

When is atty instruction not to answer appropriate?

Answer 13

An attorney’s instruction not to answer at a deposition is only appropriate when necessary to protect witness from abusive or harassing questions.

Question 14

DISCOVERY

When can a party file a motion for sanctions based on behavior in a deposition?

Answer 14

During a deposition, if an attorney repeatedly objects to questions for “assumes facts not in evidence” or “irrelevant information,” and also makes statements suggesting the answers to various questions, the other party can file a motion for sanctions to bring the matter to the court’s attention.

Question 15

DISCOVERY

When must an objecting atty provide basis for objection?

Answer 15

Upon request, an objecting attorney must provide clear and concise explanation of the basis for the objection.

Question 16

DISCOVERY

What happens when served with request for admission, and what options are available if deadline is missed?

Answer 16

After being served with a request for admission, the party has 30 days to serve a written response or the request is deemed admitted. If this happens, D should file a motion to withdraw deemed admissions, showing good cause for failure to timely respond AND that other party would not be unduly prejudiced. Good cause will not be found when the failure to respond was intentional or the result of conscious indifference.

Question 17

DISCOVERY

What information can be requested in a disclosure?

(NP 4NAN=[PP/W/PKRF and R3P] GAME IS WM)

Answer 17

1. Names of parties
2. Name, address, and numbers for any potential party or witness and people with knowledge of relevant facts
3. Name, address, and number for any responsible third party
4. Discoverable information regarding a testifying expert
5. Legal and factual grounds for the claim or defense
6. Amount and method for calculating damages
7. Indemnity or insurance agreements
8. Settlements agreements
9. Witness statements
10. Medical records and bills or an authorization permitting another to disclose such information

Question 18

DISCOVERY

How to get medical records?

Answer 18

If a party wants a copy of medical records, the party must (1) request disclosure or production served on the party, or (2) request via written deposition with a subpoena duces tecum of the healthcare providers.

Question 19

DISCOVERY

How to avoid calling a high-level official of an organization

Answer 19

If a party seeks to depose a high-level official of an organization, and the organization seeks relief—official should provide an affidavit denying unique or superior personal knowledge of discoverable information. The organization may move for a protective order or move to quash the notice of deposition under the APEX doctrine.

Question 20

DISCOVERY

What to do if another party fails to respond to discovery

Answer 20

If another party refuses to respond to a discovery request—upon reasonable notice, the party can request a court order compelling discovery or imposing sanctions for failure to supply discovery.

Question 21

DISCOVERY

What to do if discovery request is improper

Answer 21

If a party thinks that a discovery request is improper—can make a written objection to the discovery request and file a motion for a protective order.

Question 22

DISCOVERY

When is discovery response due?

Answer 22

A party has to respond within 30 days of being served a discovery request.

Question 23

DISCOVERY

How to indepedently verify nature and extent of a party’s medical condition

Answer 23

In order to independently verify the nature and extent of a party’s medical condition, a party can move for an order compelling party to submit to physical exam. Must show good cause and that physical condition is in controversy. Must be requested no later than 30 days before the end of discovery period.