Discovery

Question 1

Depositions – how to depose NONPARTIES?

Answer 1

SUBPOENA, or else not required to attend.

Question 2

What is a Subpoena Duces Tecum?

Answer 2

requires deponent TO BRING MATERIAL

Question 3

Must you subpoena a party?

Answer 3

No. notice is sufficient.

Question 4

Which can go to nonparties?

1. Deposition
2. Interrogatories
3. RFP
4. Physical or mental Examination
5. Request for Admission

Answer 4

1. Deposition – NONPARTIES if subpoena
2. Interrogatories – PARTIES ONLY
3. RFP - NONPARTIES if subpoena
4. Physical or mental Examination – PARTIES ONLY (must court order)
5. Request for Admission – PARTIES ONLY

Question 5

What is required for your discovery requests & responses?

Answer 5

1. Must Sign under oath, certifying:
   a. WARRANTED,
   b. Not for IMPROPER PURPOSE
   c. Not UNDULY BURDENSOME
2. Must Supplement if circumstances change.

Question 6

What is the SCOPE of Discovery?

Answer 6

Anything that may be RELEVANT to a claim or defense.

— “REASONABLY CALCULATED TO LEAD TO DISCOVERY OF ADMISSIBLE EVIDENCE.”

Question 7

When is privileged WORK PRODUCT discoverable?

Answer 7

if you can show

1. Substantial need
2. Not otherwise available.

Question 8

Who generates Work Product?

Answer 8

Party or any rep of a party

not just a lawyer!

Question 9

Which Work Product is NEVER discoverable?

Answer 9

1) MENTAL IMPRESSIONS
2) Opinions
3) Conclusions
4) Legal Theories

Question 10

What is “Work product”?

Answer 10

Material prepared in anticipation of litigation

Question 11

How can you protect Work product and claim it’s privileged?

Answer 11

Make a PRIVILEGE LOG:
list document by date, author, recipient, privilege, etc
Must claim protection EXPRESSLY, and PARTICULARLY DESCRIBE the materials.

Question 12

Expert Witnesses: may you depose them?

Answer 12

Any expert “whose opinions may be presented at trial.”

Question 13

Are Draft Opinions of Experts Discoverable?

Answer 13

They are Work Product.

Question 14

May you depose/discover from a Consulting Expert (will not testify)?

Answer 14

Not unless “exceptional need.”

Question 15

When is there a PARTIAL VIOLATION of a discovery rule?

What can you do about it?

Answer 15

Receiving party answers some and objects to others – and OBJECTIONS ARE NOT UPHELD.

remedy:
1. get ORDER COMPELLING party to answer, plus costs
if party violates order…
2. RAMBO sanctions, plus costs
& can be held IN CONTEMPT of violating a court order

Question 16

When is there a TOTAL VIOLATION of a discovery rule?

What can you do about it?

Answer 16

Receiving party FAILS COMPLETELY to:

1) ATTEND DEPOSITION,
2) RESPOND to ROGS
3) RESPOND to RFP’s.

remedy:
RAMBO plus costs

Question 17

What are the RAMBO Sanctions?

Answer 17

1. Establishment order (est’ing facts as true)
2. Strike Pleadings of party (re: this discovery)
3. Disallow Evidence of party (re: this discovery)
4. DISMISS P’s case (if bad faith shown)
5. Enter DEFAULT Judgment against D (if bad faith)

Question 18

When can you NOT be held in Contempt of violating a court order?

Answer 18

Refusing to submit to medical exam

Question 19

What is a Protective Order?

Answer 19

Responding party in discovery seeks one when:
e.g. OVERBURDENSOME,
involves TRADE SECRETS
ESI not readily available

Question 20

Must a party submit to a medical exam?

Answer 20

No, absent a Court Order, upon showing of GOOD CAUSE.