Discovery Flashcards
Discovery general standard
Generally, discovery may be had of any matter not privileged that is relevant to the claim or defense of any party, including the identity of persons having knowledge of relevant facts. The costs of discovery and the needs of the case will also be considered. Work product of lawyers and others prepared in anticipation of litigation is discoverable only on a showing of substantial need and to avoid undue hardship in obtaining the material from other sources.
Discovery of expert opinions
The opinions of experts who are retained in anticipation of litigation but who are not expected to testify at trial may be discovered only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means or when a medical report for an exam conducted under FRCP 35 is requested.
How to compel documents from a nonparty
A party may serve on a nonparty a subpoena that compels the nonparty to produce physical material, including documents and electronically stored information, relevant to the pending action
Motion to compel
If the party moving to compel has attempted in good faith to resolve the dispute, the court must order the other party to produce the documents and to pay the moving party’s reasonable costs in making the motion, including attorney’s fees. Costs will be awarded unless: (i) the movant filed the motion before attempting in good faith to obtain disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances exist that make an award of expenses unjustified.
Discovery of insurance policies
As part of its initial disclosures, a party must provide to other parties copies or allow inspection of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.
