Discovery Flashcards
Experts
What are the factors to determine the class of the expert?
and whether they are discoverable?
- How was the consultation initiated?
- Nature, type, and extent of information provided to, or determined by
- Duration and intesity of consultative relationship
- Terms of the consultation (payment, confidentiality, etc)
Experts
Ager 4 types of experts?
- Experts a party expects to use at trial
- Experts reatined in ancticpation of litigation but not to testify
- Experts informally consulted in preparation for trial but not retained
- Experts whose information was not acquired in prep for trial, e.g. regular employees or experts that happened to be witnesses
Experts
Which experts are discoverable?
- Experts retained for trial that are expected to testify
- “Witness” experts - regular employees and those who were actors or viewers
Scope of Discovery
United Oil Co. v. Parts Associates, Inc.
- Party seeking discovery has the obligation to demonstrate threshold relevance of discovery requests s related to claim or defense
- Party resisting discovery then carries the burden to show irrelevance
Rule 26(b)
Discovery of ESI
Zubulake v. UBS Warburg LLC
Proportionality test
1. Importance of the issue at stake
2. The amount in controversy
3. The parties’ relative access to the information
4. The parties’ resources
5. The importance of discovery in resolving the issues
6. Whether the burden of discovery outweighs the likely benefit
(court weighted 3 & 5)
Rule 26(b)
Work Product
Hickman v. Taylor
Work product of the lawyer is protected, not privileged, and includes mental impressions, legal theories, conclusions, etc.
Rule 26(b)(3)(A-B)
Washington State v. Fisons
Sanctions under 26(g) are proper when it is clear that the requests should have produced the evidence and it is clear that the resisting party’s actions were contrary to the purpose of discovery.
