Discovery Flashcards
order of pretrial operations (5 steps)
order of operations:
(1) meet and confer: “as soon as possible,” the parties must have a conference of parties to consider claims and defenses. FRCP 26(f)
(2) file discovery plan: the parties must submit to the court a proposed discovery plan within 14 days after the conference.
(3) initial required disclosures (should be 14 days after conference as well, if possible)
(4) scheduling order from court
(5) PTCs: amount depends on the case; **the final pretrial conference determines the issues to be tried and evidence to be offered at trial (supersedes pleadings!!)
what is discovery & what is the scope
Stage of civil litigation process when parties exchange non-privileged documents and information that are relevant to the case at hand.
»> often considered the fact-gathering stage of the process.
unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any:
(a) nonprivileged matter,
(b) that is relevant to any party’s claim or defense, and
(c) proportional to the needs of the case
**does not necessarily mean that all that is discovered is evidentially admissible in court
initial disclosures - 4 general disclosures, timing, and penalty for nondisclosure
DISCLOSURES:
(1) witness list: Parties must disclose the names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses;
(2) documents, electronically stored info, AND tangible things (i.e. physical evidence) that are IN THE PARTY’S CONTROL and that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
»> copies or descriptions of documents would also suffice!
(3) computation of damages required for anyone seeking monetary relief
(4) copies of relevant insurance agreements where the insurer may be liable for some or all of the claim
TIMING:
- these disclosures must be made within 14 days after the meeting of the parties required by Rule 26(f), but timeline is often extended by the parties
- doesn’t require the party to ask for it - must hand it all over AUTOMATICALLY
PENALTY: if you fail to disclose, you can’t use that document AT ALL throughout the case unless your non-disclosure was harmless/justified
two pretrial disclosures required right before trial - what are they; timing
At least 30 days before trial, a party must disclose (without formal request):
(a) all expected witnesses, AND
»> including potential witnesses and witnesses whose testimony is presented by means of a depo
(d) all documents, exhibits, and ESI expected to be offered or might offer if needed
**goal is to prevent unfair surprise
rules for electronic data (ESI)
Parties must take reasonable steps to ensure that electronically stored information is not destroyed.
Remedies or sanctions could be imposed on a party that fails to take such reasonable steps. See FRCP 37
ESI need not be produced if the responding party can show that it is not reasonably accessible due to undue burden/cost
ACP
work product (test; how can other side get it; info NEVER discoverable; info ALWAYS discoverable; expert testimony; documents req by law)
The attorney-client privilege prevents disclosure of confidential information exchanged between an attorney and her client.
The work-product privilege prevents disclosure of work made in anticipation of litigation. (PRIMARY PURPOSE standard)
> > > Work product of a party made in anticipation of litigation is discoverable ONLY upon a showing of “substantial need” and the avoidance of the “undue hardship” of obtaining the info by other means (super high burden to meet)
> > > opinion work product is ABSOLUTELY protected
> > > ***ALWAYS discoverable: identify of people with discoverable info; a party’s own statement
> > > experts: generally, an opinion of a testifying expert is DISCOVERABLE; however, opinion of an expert who is retained in anticipation of litigation but who is NOT expected to testify at trial (i.e. a consulting expert) is discoverable ONLY UPON a showing of exceptional circumstances
> > > lookout for docs prepared as required by state/federal law - these would NOT be deemed “prepared in anticipation of litigation” b/c PRIMARY PURPOSE was to comply with the law
inadvertent disclosure
If there is an inadvertent disclosure of trial preparation or privileged materials, the party may still claim privilege and notify the opposing party of the inadvertent disclosure.
Once notified, the opposing party may not use or disclose such information.
forms of discovery; general time to send & respond; rule for nonparties
Written discovery includes interrogatories, requests for production of documents, and requests for admissions.
Parties must wait to send until after the 26(f) conference
Parties usually have 30 days to respond to written discovery (unless an extension is granted)
Parties can use requests for production of documents and depositions to get information from non-parties as well - must subpoena!
interrogatories
only to parties
limited to 25 (unless court discretion)
**party must answer on “information reasonably available to them”
can inquire about both facts AND legal contentions
depos - general rules
live testimony under oath
notice is sufficient for parties; need subpoenas for nonparties
no more than 10 depos
cannot depose same person twice
cannot exceed one 7-hr day
100 mile travel rule
use at trial: impeachment; any purpose against adverse parties; any use against unavailable parties
motion to compel & motion for protective order
MTN to Compel:
A party can seek court intervention if a party fails to comply with a discovery request (fully or partially).
**must first certify that you made a good faith attempt to confer with the opponent before asking for court intervention - this will be your prerequisite to an award of reasonable costs and attorneys’ fees.
MTN for Protective Order:
A party might seek a protective order from a court to limit what may be discoverable by the other side.
Protective orders are used to protect parties from annoyance or undue burdens.
Generally, a written motion and notice of a hearing must be served at least 14 days before a hearing on the motion.
disclosure of experts - when required, what required/not required
timing determined by the discretion of the court
consulting experts NEED NOT be disclosed
draft reports and communications are protected as WORK PRODUCT
testifying experts MUST be disclosed
written reports MUST be disclosed
request for production of documents
this is a request to make docs/other things available for review/copying or to permit entry on property to inspect/measure/etc
use only for parties (for nonparties, just subpoena duces tecum them)
medical exams (4 requirements)
court order required
parties only
health must be in controversy
need good cause
requests for admission
response must deny, deny knowledge, admit, or object
»> failure to deny is an admission!
reasonable inquiry must be made before answering
parties ONLY (i think)
