Discovery

Question 1

Pretrial conferences and scheduling orders

Answer 1

Rule 26f conferences - discovery planning

• must meet and discuss likely contents of discovery, draft a plan
• plan submitted w/in 14 days
• conference must be 21+ days before 16b conference/order

Rule 16b conference

• after 26f conferences, court may order parties to confer again and discuss litigation and efficient ways to proceed/settle
• court issues a scheduling order dictating schedule for litigation and specifying discovery rules like scope

Question 2

Mandatory disclosures - 3 categories

Answer 2

This stuff is what has to get turned over WITHOUT EVEN ASKING

Initial disclosures: within 14 days of 26f conference must provide:

• witnesses, name and contact info
• documents
• damages computation and supporting docs
• insurance agreements

Expert disclosures: at least 90 days before trial
- name and contact info, final report, quals, opinion, info relied upon

Pretrial disclosures: at least 30 days before trial

• list of witnesses expected to be called
• witnesses that MAY be called if need arises
• witnesses whose testimony will be given through depo or transcript
• list of docs/physical evidence to present

Question 3

Scope of discovery

“Really Want Private Phenomenal Evidence”

Answer 3

Relevance - any nonprivileged info relevant to your claim/defense
Work product - can only be obtained w substantial need and no equivalent w/o undue hard
Privilege - can’t obtain, period
Proportionality - discovery must be proportional to needs of the case. considerations:
- importance of the issues at stake
- amount in controversy
- relative access to info
- parties’ resources
- importance of discovery in resolving issues
- whether burden/expense outweighs benefit
Experts - non-testifying expert info usually undiscoverable w/o extraordinary need

Question 4

Discovery methods

Answer 4

Interrogatories - up to 25 questions in writing, can ask facts/contentions, 30 days to respond
Requests for admission - 30 days to respond
Requests for production - for docs, items, or access to evidence. 30 days to respond. For ESI, can respond in normally maintained form or any reasonably usable one
Requests for mental/physical exam - only when at issue and by court order
Depositions - up to 10, or request more. Can use at hearing/trial IF other party had the chance to be there. Party depos for any purpose, nonparty either to impeach or if nonparty is unavailable
Subpoenas - to get discovery for nonparties