Discovery Flashcards
What is the basic idea of discovery?
Discovery is the phase of litigation in which the parties find
out what the other parties and witnesses know. The idea is to
avoid trial by ambush—we want things known before we go
to trial.
What are the initial required disclosures?
Initial required disclosures are information that each party
must give to other parties—even though the parties have not
asked for it. Unless a court order or stipulation of parties says
otherwise, within 14 days of the Rule 26(f) conference, each
party must disclose certain information
Do you need to give the identities of person with discoverable information that the party may use to support their claims or defenses?
The names, telephone numbers, and addresses of persons
with discoverable information, and the topics on which they
have discoverable information, who the party may use to
support her claims or defenses, must be disclosed as an
initial disclosure.
Do you need to disclose documents and things that the party may use to support their claims or defenses?
Documents and tangible things that the party may use
to support her claims or defenses must be disclosed as
an initial disclosure. This includes photographs, records,
videos, and electronically stored information (“ESI”). So
photos taken on a smart phone, etc., are included, as well as
good old-fashioned papers. Copies or a description of the
documents may be produced instead of the document itself.
a. Must Be in Party’s Custody and Control
Documents and tangible things that are not in the party’s
control need not be disclosed.
Do you need to disclose the computation of relief sought?
Anyone claiming monetary relief must provide a “computation,” supported by documents or ESI of the amount sought
as an initial disclosure.
Do you need to disclose insurance coverage?
The parties must disclose any insurance that might cover
all or part of the judgment in the case even though the
existence of the insurance probably would not be admissible
at trial. “Discoverable” is broader than “admissible.”
What are the penalties for failure to disclose?
If a party fails to disclose material that was required to be
disclosed, that party cannot use the undisclosed material in
the case unless the failure to disclose was substantially justified or harmless.
What do you have to disclose when it comes to expert witnesses?
Later in the case, at a time directed by the court, each party
must identify expert witnesses (”EWs”) who may provide testimony at trial (that is, opinion testimony) and provide certain other disclosures noted below.
Who are consulting experts?
Suppose a party hired an expert to help with preparing
case, but she doesn’t intend to call that expert to testify at
trial. Such an expert is not an EW, but rather a consulting
expert. Facts known and opinions held by consulting
experts are generally not discoverable absent “exceptional
circumstances.”
What are the contents of disclosures?
As to an EW “who may be used at trial,” each party generally must disclose to the other parties the identity of and
written report prepared by the EW. The written report must
include:
• Opinions that the EW will express;
• The bases for the opinions;
• The facts used to form the opinions;
• The EW’s qualifications; and
• How much the EW is being paid.
Earlier drafts of the EW report and communications between
the lawyer and the EW are work product.
Can you depose an expert witness?
After the disclosure above, a party may take the deposition
of the EW. Best practice is for that party to subpoena the EW
to compel her attendance. (Without the subpoena, the expert
may not show up even if the parties agreed to the deposition.) The deposing party ordinarily will bear the cost of the EW’s deposition. (The court will set a per-hour fee.)
Can you use Expert Witness if you failed to disclose?
If a party fails to disclose material that was required to be
disclosed, she cannot use the EW in the case unless the
failure was justified or harmless
What are the required pretrial disclosures?
No later than 30 days before trial, the parties must give
detailed information about their trial evidence, including
identity of witnesses who will testify live or by deposition and
documents, ESI, and other things that they intend to introduce at trial.
What are the discovery tools?
Once the initial disclosures have been made, parties may
request information from one another. However, assuming
that no court order or stipulation provides otherwise, a
party cannot send discovery requests to another party until
after the Rule 26(f) conference. Minor exception: requests
to produce can be served earlier (once 21 days has passed
since service of process). Such a request is treated as though
it was served at the Rule 26(f)conference. Generally, the cost
of responding to discovery is borne by the responding party.
What is a deposition and how does it work?
In a deposition, a person gives live testimony in response to
questions by counsel or pro se parties. The questions are
usually oral, but can be written (if written, they are read by
the court reporter). The deponent testifies under oath, and
the deposition is recorded by sound or video or stenographically so that a transcript can be made. Both parties and nonparties may be deposed. The deponent isn’t required to review her records prior to the deposition; testimony is from present recollection.
a. Notice to Parties; Subpoenas to Nonparties
A party does not need to be served with a subpoena. A
notice of deposition is sufficient to compel her appearance.
A nonparty must be served with a subpoena or else she is
compelled to attend. If the party noticing the deposition fails
to do so and the deponent fails to show up, the noticing party
may be liable for costs to the other parties.
b. Subpoena Duces Tecum
A subpoena duces tecum requires the deponent to bring
requested materials with her to the deposition.
c. Limit on Deposition of Nonparty
Unless a nonparty agrees otherwise, the farthest she can
be required to travel is 100 miles from where the nonparty
resides or is employed.
d. Deposition of Organization
When the party is suing an organization, she may “notice” a
deposition of an organization, describing the facts that she
wants to discover in the deposition. The organization then
must designate a person(s) to testify on that matter.
e. Limits on Depositions
A party cannot take more than 10 depositions or depose
the same person twice without court approval or stipulation.
Depositions cannot exceed one day of seven hours unless
the court orders or parties stipulate otherwise.
f. Use of Depositions
Subject to the rules of evidence, depositions may be used at
trial:
• To impeach the deponent;
• For any purpose if the deponent is an adverse party; or
• For any purpose if the deponent (regardless of whether
a party) is unavailable for trial (for example, illness, out of the country, etc.), unless that absence was procured by
the party seeking to introduce the evidence.
