Discovery Flashcards
Subpoenas
The party making out the subopoena is required to pay for witnesses residing and employed outside the parish and more than 25 miles from the courthouse where the trial or hearing is to be held.
Scope of Discovery
Parties may obtain discovery regarding any matter not privileged which is relevant to the subject matter involved in the pending action.
The information sought need not be admissible at trial if information is reasonably calculated to lead to the discovery of admissible evidence.
Protective Orders
Protective orders are available to prevent annoyance, embarrassment, oppression, or undue burden or expense.
Remedies include:
- Prohibiting discovery.
- Limiting the terms of discovery (time, place, method, and subject matter).
- Ordering that trade secret or confidential information may not be disclosed or designating the form of its disclosure.
Depositions - Objections
A party may instruct a deponent not to answer when:
- Necessary to preserve a privilege.
- Necessary to enforce a limitation on evidence imposed by the court.
- Necessary to prevent harassing or repetitious questions.
- Necessary to prevent questions which seek information that is neither admissible at trial nor reasonably calculated to lead to the discovery of admissible evidence.
Depositions - Motion to Supress
Errors and irregularities in the manner in which testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, or otherwise handled by the officer are waived unless a motion to suppress the deposition is made promptly after the defect is, or with due diligence, should have been discovered.
Depositions - Procedures
Method of Taking Deposition
- Oral examination
- Via telephone or electronic means (parties must agree or court orders)
- Written questions
- Recorded testimony
Place for Taking Deposition
With Consent: Deposition may be taken anywhere.
Without Consent:
- Resident Deponent: Parish of residence, where employed, where he transacts business, or by order of court.
- Non-Resident Deponent: If temporarily in state, where served with subpoena or by order of court. If not, letters rogatory in accordance with laws of the foreign state.
Depositions - Motion to Terminate
A party or deponent may move to terminate the deposition upon showing it is being conducted in bad faith or to annoy, embarrass, or oppress the deponent or a party.
Depositions - Use of Deposition of a Witness
Deposition of a witness, whether or not a party, may be used in any way at trial, if:
The witness should die,
The witness is unavailable,
The witness resides more than 100 miles from the place of trial (unless his absence was procured by the party offering the deposition),
The witness is out of state (unless his absence was procured by the party offering the deposition), or if there is notice, under exceptional circumstances.
Depositions - Use of Deposition of an Expert
After notice giving other counsel 10 days to object, the deposition of an expert may be used by any party for any purpose.
Objectors may pay reasonable expert fees in advance.
Notwithstanding the objection of counsel, the court may permit use of expert’s deposition if justice so requires.
Compelling Physical or Mental Exams
An adverse party may be compelled to undergo a physical or mental exam only if the physical or mental condition of the party is at issue. It must be done by a licensed physician.
A party who has compelled a physical or mental exam must deliver a copy of the exam to the other parties if requested, but he may request the examined party to deliver reports of any exams he has or may take for the same condition
By requesting the exam report, the examined party waives any past or future patient-doctor privilege pertaining to disputed condition
Request for Release of Medical Records
Any party may serve on another party a request that he sign a release directing a specific health care provider to release records of the party whose medical condition is at issue
Party served has 30 days o sign the release or object
Once signed, party should send it to HCP & subject party @ same time
W/in 7 days of receipt of medical records, a copy should be sent to subject party
Interrogatories
Answers under oath and signed objections must be served within 30 days after service of the interrogatories.
A party is limited to asking 35 interrogatories, including subparts, during the entire proceeding unless granted leave of court.
Where answers to interrogatories can be obtained from the business records, including electronically stored information, of a party, that party can specify where in the records the answers may be found and make records available in lieu of answering the interrogatories.
Requests for Production of Documents & Things, or Entry Upon Land
Once served, the adverse party must make all specified materials available for insepction, copying, testing, or smpling, or permit entry upon land for the purpose of inspection, surveying, etc.
The adverse party must respond or object within 30 days of service
A party may organize produced docs to correspond w/ requests, or may produce them as they are kept in the usual course of business.
Requests for Admissions
The time period for responding to requests for admission is 30 days from service of the requests
A party responding to requests for admission cannot state that he lacks sufficient info to respond unless the party also states he made “reasonable inqury”
If the requesting party thinks the answers are insufficient, he may move to determine their sufficiency
If the requesting party is forced to prove at trial a fact that was previously denied, then requesting party may recover cost & attys fees
Work Product
Attorney work product is not discoverable.
Defined:
- Any writing or electronically stored information,
- Obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent
- In anticipation of litigation or in preparation for trial.
Exception:
- Denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or
- Will cause him undue hardship or injustice.
Attorney Notes: The court shall not order the production or inspection of any part of the writing (or electronically stored information) that reflects the mental impressions, conclusions, opinions, or theories of an attorney.
Party invoking privilege must do so expressly and describe the materials withheld with sufficient particularity to enable the party seeking disclosure to assess the applicability of the privilege.
