Discovery Flashcards
When are sanctions appropriate if a party failed to preserve electronically stored information (ESI)?
Sanctions may be appropriate if a party failed to preserve electronically stored information (ESI) that:
1) should have been preserved in the anticipation or conduct of litigation
2) is lost because the party failed to take reasonable steps to preserve it and
3) cannot be replaced or restored through additional discovery.
What may a court do if it finds that a party intentionally deprived the requesting party of the ESI?
If the court finds that the party intentionally deprived the requesting party of the ESI, the court may:
- presume that the lost ESI was unfavorable to the party that failed to preserve it
- instruct the jury that it may or must presume the lost ESI was unfavorable to that party, or
- dismiss the action or enter a default judgment against that party
What is the scope of the court’s ability to cure prejudice caused by a party’s failure to preserve ESI?
A court may order measures no greater than necessary to cure prejudice caused by a party’s failure to preserve electronically stored information that:
(1) should have been preserved in the anticipation or conduct of litigation,
(2) is lost because the party failed to take reasonable steps to preserve it, and
(3) cannot be replaced or restored.
Methods of Discovery
1) Depositions
- Written or oral examination of party or witness under oath
- 10 per party
2) Interrogatories
- Written questions served on party
- Serve up to 25
- Written responses due within 30 days of service
3) Request for production
- Request served on party (or subpoena served on nonparty) to produce & allow inspection of documents, electronic information, tangible items, or land
- No limit
- Written response due within 30 days of service
4) Requests for admission
- Requests served on other party to admit truth of facts within scope of discovery
- No limit
- Written response due within 30 days of service
5) Physical/mental exams
* Order by court or parties’ agreement for physical or mental examination of party if those conditions are in controversy
Discovery (Rule 26)
Scope
1) Parties may discover any nonprivileged matter that is relevant to a claim or defense.
2) Court may limit discovery if unduly expensive or burdensome
3) does not need to be admissible evidence in order to be subject to discovery
4) a party may not discover privileged information
Work product privilege
1) Protects materials prepared by a party in anticipation of litigation
2) Exception:
a) Information is not reasonably available by other means; and
b) The party would be substantially prejudiced if not allowed to access the materials
Example: Defendant interviews various witnesses prior to trial, and all of those witnesses have died. Plaintiff can argue that he cannot obtain the information another way and the case would be substantially prejudiced.
3) A party can never discover the mental impressions and opinions about the case
Duty to Preserve Electronically Stored Information in Anticipation of Litigation
1) must take reasonable steps to preserve or could be subject to sanctions
2) court may presume that lost information was unfavorable to the party that failed to preserve it
3) court may also dismiss the case or enter default judgment.
Depositions
1) a party can depose another party or a nonparty
2) to depose a nonparty, must serve a subpoena
3) can also request that a nonparty produce documents by serving a subpoena duces tecum
Deposition of a nonparty
The subpoena may be served and the deposition conducted without the court’s leave(i.e., permission) or the parties’ stipulation unless:
To compel the attendance and testimony of a nonparty deponent, the deposing party must serve the nonparty deponent with a subpoena.
The subpoena may be served and the deposition conducted without the court’s leave(i.e., permission) or the parties’ stipulation unless:
1) the deposition exceeds the 10-deposition limit (which includes both oral and written depositions)
2) the deposition is sought before the parties’ initial planning conference* or
3) the deponent was already deposed in the action.
Initial Disclosures
Parties are generally required to make initial disclosures of basic information about the case without a discovery request.
This includes, among other things, all documents and items that the disclosing party possesses and may use to support a claim or defense.
In determining sanctions, the court should consider…
the prejudice to another party and the intent of the party that failed to preserve the evidence.
What may a court do if a party failed to preserve electronically stored information that should have been preserved and it cannot be restored or replaced?
The court may order sanctions against the wrongful party.
The court may:
(i) upon finding prejudice to another party, order measures no greater than necessary to cure the prejudice, or
(ii) upon finding that the party acted with the intent to deprive another party of the information, may presume the lost information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable, or dismiss the action or enter a default judgment.
Limitations on Discovery
- Permissible
Court may alter limits upon:
i) number of depositions, interrogatories, or requests for admission and
ii) length of oral depositions
2. Required
Court *must* limit discovery that:
i) is unreasonably cumulative or duplicative
ii) is obtainable from more convenient, less burdensome, or less expensive source
iii) contains information that party had ample opportunity to obtain OR
iv) is outside scope of discovery
What factors do courts use to determine if the information sought is disproportional to the needs of the case?
A federal court must limit the frequency or extent of discovery when the information sought is disproportional to the needs of the case.
This is based on the following factors:
i) the importance of the issues at stake
ii) the amount in controversy
iii) the parties’ relative access to relevant information
iv) the parties’ resources
v) the importance of the discovery in resolving the issues
vi) whether the burden or expense of the proposed discovery outweighs its likely benefit