Discovery

Question 1

What is the rule wrt initial required disclosures? What things fall under this?

Answer 1

Parties must give each other these things within 14 days of R26(f) conference:

• identities or persons with discoverable info that party may use to support their claims or defenses (+ phone numbers and addresses)
• docs and tangible things that the party may use to support their claims or defenses (unless not in party control)
• computation of relief
• any insurance coverage that may cover all or part of judgment

Question 2

What happens if party fails to disclose an initial req’d disclosure?

Answer 2

Cannot use in the case unless failure to do so was substantially justified or harmless.

Question 3

What disclosures are required wrt expert witnesses?

Answer 3

At some point in case (directed by court), parties must disclose:
- identify expert witnesses who may provide testimony at trial
Note: does NOT include consulting experts
- written report of expert witness including: opinions, bases of opinions, facts use to form opinions, qualifications, amount paid

Note: failure to disclose req’d info results in not being able to use expert witness unless failure was justified or harmless

Question 4

What disclosures are req’d pre-trial?

Answer 4

no later than 30 days pre-trial, parties must give info re trial evidence:

• identity of witnesses
• documents
• esi
• anything going to produce

Question 5

When may parties request docs from each other?

Answer 5

Only after the R26(f) conference (unless court order provides otherwise, or unless its a request to produce which can be served once after 21 days after SoP)

Question 6

For deposition, does deponent need to be served with subpoena?

Answer 6

if a party, then no. If nonparty, then yes

Question 7

What are limits wrt depostions?

Answer 7

• cannot force nonparty to travel over 100 miles from residence
• cannot take more than 10 depos or same person more than once w/o court consent
• cannot exceed 7 hrs in one day

Question 8

Who are interrogatories sent to? What are limits on them? when must they be answered by? How must they be answered?

Answer 8

• only sent to parties
• max numer is 25
• must be answered within 30 days
• must be answered based on info reasonable available
• if burden of finding answer is the same for either party + is in biz records, can request other party do so
• q’s re legal contentions are OK

Question 9

When must a party respond to a request to produce?

Answer 9

Within 30 days of service.

Question 10

What is req’d to compel a party submit to medical exam?

Answer 10

Court order - requesting party must show (1) that persons health is in actual controversy and (2) good cause.

Person undergoing exam can request and obtain report, if so needs to produce all info re similar reports from her doctors - waives physician privilege.

Question 11

Does Rule 11 apply to discovery docs?

Answer 11

No, but the following rules apply:

(1) parties sign substantive answers to discovery under oath
(2) attys sign all discovery requests, certifying that they are warranted, not interposed for an improper purpose, and not unduly burdensome

Question 12

What is the scope of discovery?

Answer 12

Parties may discover anything that is relevant to a claim or defense and proportional to the needs of the case.

Note: discoverable > admissible

Question 13

What is the work product protection? What are exceptions?

Answer 13

Work product protects documents/things made in preparation of litigation. Covers things made by atty’s AND parties themselves and representatives.

Opinion work product = contains atty mental impressions, conclusions, opinions of the case and is absolutely protected - can NOT be discovered.

other work product is qualified WP and may be discoverable if:

if opposing party can show substantial need and undue hardship in getting info another way.

Question 14

What should party do if they inadvertently disclose privileged material?

Answer 14

Notify other party promptly, then other party MUST return, sequester, or destroy the material pending decision by court about whether there has been waiver.

Question 15

What is a protective order? What can court do in response?

Answer 15

Party can move for a protective order if they feel that a discovery request subjects them to annoyance, embarassment, or undue harassment.

Party MUST certify that they tried in good faith to resolve the issue w/o court involvement. (asked other side to meet & confer)

If court agrees, Court can:

• deny discovery
• limit discovery
• permit discovery on specific terms

Question 16

What actions may a court take if (1) a party fails to respond to all interrogatory q’s or (2) fails entirely to attend depo/respond/etc

Answer 16

(1) may be compelled to comply by court

(2) may subject party to sanctions plus costs

Question 17

What is the process req’d to impose sanctions? What types of sanctions may be imposed?

Answer 17

(1) party seeking sanctions must certify that they tried to resolve issue - i.e. meet & confer – outside court
(2)
(a) if due to less than full response: requesting party moves for order compelling answer –> if party violates order, then court can enter merits sanction +costs and attys fees

(b) if due to no response: court can directly enter merits sanctions

merits sanctions =

• establishment order (est fact as true)
• strike pleadings of the disobedient party
• disallow evidence from party
• dismiss P case
• enter default judgment