Discovery Flashcards
What are three types of mandatory disclosures under Rule 26?
- initial disclosures
- expert disclosures
- pretrial disclosures
What are the rules for initial disclosures?
Within 14 days after a Rule 26 conference, must provide to all other parties:
1. The name/contact info of any witness that a party may use to support a claim or defense;
2) Copies (or descriptions) of documents, electronically stored information (ESI), and tangible objects that the party may use to support its claim or defense;
3) Computation of damages sought and supporting documents; and
4) Copies of any insurance agreement that may require the insurer to pay
What is the rule for expert disclosures?
At least 90 days before trial, if planning to rely on expert testimony, must disclose name/contact info of expert and their final report which must include qualifications, opinion, and info relied on by expert
What is the rule for pretrial disclosures?
At least 30 days before trial, must provide:
i) List of witnesses they expect to call;
ii) Witnesses they may call if the need arises;
iii) List of witnesses whose testimony will be given through deposition or transcript; and
iv) List of documents or physical evidence they expect to present
What five factors determine the scope of discovery under Rule 26?
- relevance
- work product
- privilege
- undue burden
- experts
When would discovery be considered relevant?
Allowed discovery into any nonprivileged matter that is relevant to any claim or defense and proportional to the needs of the case
Relevant if likely to make any fact in dispute more or less likely to be true, regardless of whether info would be admissible at trial
Is work product protected in discovery?
Generally, even if relevant, may be protected work product
Work product = document or tangible object created by party or attorney in anticipation of litigation (post-incident description of events)
Under what exceptions would work product be discoverable?
a. Party can always obtain statement it has made
b. Can get WP if party has substantial need and can’t get it without substantial hardship
How does privilege affect discovery?
Privileged matter is not discoverable
What is attorney-client privilege?
Covers confidential communications between attorney and client for the purpose of obtaining or rendering legal advice
When does undue burden exist for discovery purposes?
i) Discovery is unreasonably cumulative or can be obtained from less burdensome source or in a less burdensome way
ii) Party has had ample opportunity to obtain information themselves
iii) Burden or expense of proposed discovery outweighs its benefits, considering nature of evidence, amount in controversy, and parties’ resources
Are non-testifying experts discoverable?
Undiscoverable unless party has extraordinary need/no other way to obtain such information (rare)
Would the opinions held by testifying experts be discoverable?
Opinions held by those testifying are discoverable to a limited extent. Besides mandatory report, party can also get communications relating to:
a. Compensation for expert’s study or testimony;
b. Data provided by attorney to expert; or
c. Any assumption attorney asked expert to make in opinion
What are the six methods of obtaining discovery?
- interrogatories
- requests for admission
- requests for production
- requests for mental or physical examination
- depositions
- subpoenas
What are the requirements for interrogatories under Rule 33?
These are questions that must be submitted in writing to the other party
Can ask up to 25 questions, and the other party has 30 days to respond in writing with objections stated with specificity
