discovery Flashcards
rule 26 b1
Any nonprivileged matter
* Relevant to any claim or defense*; AND
* Proportionality:
* Amount in controversy
* Access to information
* Resources of parties
* Importance of discovery
* Cost v. Benefit**
* Note: Not whether the evidence will be admissible at trial
** Note: Costs are born by the requesting party, unless sanctionable conduct
has occurred or the Court deems cost shifting appropriate to meet
proportionality.
rule 26 f discovery conference and 16 b scheduling order
Rule 26(f) Discovery Conference
* As soon as practicable
* OR At least 21 days before Rule 16(b) conference or order
* Rule 16(b) Scheduling Order
* Issued after the parties stipulated Rule 26(f) report
* OR After a scheduling conference hearing
* Discovery may generally not begin until the Rule 26(f) conference
* However, Rule 24 permits requests for production of documents before
* Court may also permit limited jurisdictional discovery before the Rule 26(f)
conference.
rule 26 a
Due within 14 days of the Rule 26(f) Conference
Requires:
* Names and addresses of nonimpeachment fact & expert witnesses
* A copy or description (by category and location) of all nonimpeachment
documents, ESI, and tangible things
* Computation of damages
* Insurance Policies
In complex cases, it is often appropriate to involve the Court
* Discovery should be served within enough time to respond
* Discovery should not be used as a vehicle for gamesmanship
proper objections
Rule 30 – Proper Objections
* No speaking objections.
* Leading questions are permitted on cross but not on direct.
Proper objections
* Asked & answered
* Harassment
* Privilege
* Form
* Calls for a legal conclusion
Improper objections
* Hearsay or assumes facts
* Calls for opinion
* Relevancy
physical
digital
oral
Documents
* Tangible Things
* Expert Reports
Electronically stored information (”ESI”)
* Machine Testimony: computer generated information
* Metadata
* AI or Machine Generated Information
Lay or Fact Testimony
* Expert Opinions
request to party
non party
- Initial Disclosures – Rule 26(a)
- Expert Disclosures – Rule 26(a)(2)
- Pretrial Disclosures – Rule 26(a)(3)
- Interrogatories – Rule 33
- Production Requests – Rule 34
- Requests for Admission – Rule 36
- Depositions or oral examinations – Rule 30 & 32
- Physical & Mental Examinations – Rule 35
subpoena
rule 34 36
Proper Objections
* Privileged (with attached privilege log)
* Calls for a legal conclusion
* Disproportional request
Rarely Proper Objections
* Overly broad, unreasonably burdensome, vague or ambiguous
* Not related to a claim or defense in the case
Improper Objections
* Shotgun, boilerplate objections or responding subject to an objection
* Information is already in the requesting party’s possession
* Available from a public source
* Seeks information in a third-party’s possession
work product
Docs. prepared in anticipation of litigation unless:
* Otherwise discoverable;
* AND substantial need
A) Documents and Tangible Things. Ordinarily, a party may not discover
documents and tangible things that are prepared in anticipation of litigation or
for trial by or for another party or its representative (including the other party’s
attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule
26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare
its case and cannot, without undue hardship, obtain their substantial
equivalent by other means.
(B) Protection Against Disclosure. If the court orders discovery of those
materials, it must protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of a party’s attorney or other
representative concerning the litigation.
privileges
work product
client
1) client; 2) received communication from lawyer or staff acting in legal
capacity; 3) relates to a fact told to lawyer; 4) not told to a third-party;
5) not to advance a crime or tort; and 6) claimed and not waived
- Draft reports & consulting experts are not subject to discovery
Inadvertent Disclosures – Generally constitutes waiver, but recent trends
brought by ESI are allowing greater and greater claw backs.
sanctions
iscovery Sanctions
* Court has broad direction to fashion discovery sanctions
* The sanction must fit the severity of the crime, but the sanctions are meant to
be remedial and compensatory in nature
* Spoilation of ESI now a major concern (make sure your clients preserve!)
* Must provide notice and opportunity to heard unless total failure to comply
with request
Common Law – Court’s Inherent Authority
* Court can enter sanctions under its inherent authority
* Important for sanctions leveed after settlement or resolution, Rule 37 no
longer applies after the case resolves
