Discovery

Question 1

What is Discovery

Answer 1

• The phase of litigation in which parties find out what the other parties and witnesses know

Question 2

Initial Required Disclosures

Answer 2

• Info that each party must give to other parties - even though parties have not asked for it
• Unless a CO/stipulation of parties says otherwise, within 14days of the R.26(f) conference, each party must disclose certain info

Question 3

Identities of Persons w Discoverable Info that the Party May Use to Support her Claims/Defense

Answer 3

• Names, numbers, & addresses of persons with discoverable info, and topics on which they have discoverable info, who the party may use to support her claim/defenses, must be disclosed as an initial disclosure

Question 4

Docs & Things that the Party May Use to Support her Claims/Defenses

Answer 4

• Docs & tangible things that the party may use to support her claims/defenses must be disclosed as initial disclosures
• This includes photos, records, videos, & ESI
• Copies or description of the docs may be produced instead of the doc itself
• Must be in party’s control & custody, if not, it need not be disclosed

Question 5

Computation of Relief & Along with Supporting Docs/ESI

Answer 5

• Anyone claiming monetary relief must provide a computation supported by docs/ESI of the amount in the initial disclosure

Question 6

Insurance Coverage

Answer 6

• Parties must disclose any insurance that might cover all/parts of the judgment even though the existence of insurance likely would not be admissible at trial.
• Discoverable is broader than admissible

Question 7

Penalty for Failure to Disclose

Answer 7

• If a party fails to disclose material that was required to be disclosed, that party cannot use the undisclosed material in the case unless the failure was justified/harmless

Question 8

Required Disclosures About an Expert Witness

Answer 8

• Later in the case, at a time directed by the ct, each party must identify EWs who may provide testimony at trial (opinion testimony) & provide certain other disclosures

Question 9

Distinguish Consulting Experts

Answer 9

• An expert hired to help with preparing a case, but the party does not intend to call that expert to testify, such expert is not an EW but rather a consulting expert
• Facts known and opinions by consulting experts are generally not discoverable absent exceptional circumstances

Question 10

Contents of Disclosures - Identity & Report (EW)

Answer 10

• As to an EW, each party generally must disclose to other parties the identity of & written report by the EW
• Written report must include:
  (1) opinions that EW will express
  (2) basis for the opinion
  (3) facts used to form the opinion
  (4) EW’s qualifications; and
  (5) how must the EW is being paid
• Earlier drafts of the EW report & communications between the lawyer & EW are work product

Question 11

Deposition of EW

Answer 11

• After disclosures, a party may take the deposition of the EW

Question 12

Failure to Disclose (EW)

Answer 12

• If a party fails to disclose material required to be disclosed, she cannot use the EW in the case unless failure was justified/harmless

Question 13

Required Pretrial Disclosures

Answer 13

• No later than 30 days before trial, parties must give detailed info about their trial evidence, including identity of witnesses who will testify live/by deposition & docs, ESI, & other things that they intend to introduce at trial

Question 14

Discovery Tools

Answer 14

• Once initial disclosures have been made, parties may request from info one another
• However, assuming that no CO/stipulation provides, a party cannot sent discovery requests to another party until after the R.26(f) conference
• Minor exception: requests to produce can be served earlier (once 21 days has passed since SOP)

Question 15

Depositions

Answer 15

• A person gives live testimony in response to questions by counsel/pro se parties
• Questions are usually oral but can be written (if written, they are read by the ct reporter)
• Deponent is recorded by sound/video/stenographically so that a transcript can be made
• Both parties & nonparties may be deposed
• The deponent isn’t required to review her records prior to the deposition; testimony is from present recollection

Question 16

Notice to Parties; Subpoenas to Nonparties

Answer 16

• A party does not need to be served with a subpoena
• Notice of deposition is sufficient to compel her appearance
• A nonparty must be served with a subpoena

Question 17

Subpoena Duces Tecum

Answer 17

• Requires deponent to bring requested materials with her to the deposition

Question 18

Limit on Deposition of Nonparty

Answer 18

• Unless a nonparty agrees otherwise, the farthest she can be required to travel is 100 miles from where the nonparty resides/ is employed

Question 19

Depositions of Organization

Answer 19

• When a party is suing an org, she may notice a deposition of an org, describing the facts that she wanted to discover in the deposition
• The org then must designate a person(s) to testify on the matter

Question 20

Limits on Depositions

Answer 20

• A party cannot take more than 10 deposition/dispose the same person twice without ct approval/stipulation
• Depositions cannot exceed one day of 7 hours unless the ct orders or parties stipulate otherwise

Question 21

Use of Depositions

Answer 21

• Subject to the rules of evidence, depositions may be used at trial:
  (1) to impeach the deponent;
  (2) For any purpose if the deponent is an adverse party; or
  (3) For any purpose if the deponent (regardless whether a party) is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence

Question 22

Interrogatories Basics

Answer 22

• Written questions to be answered in writing under oath
• Sent only to parties, never to nonparties
• Max #, absent a CO/stipulation, is 25, including subparts
• Are to be answered within 30 days from their service
• A party must answer interrogatories based on info reasonably available
• If the answers to interrogatories can be found in business records and the burden of finding the answer would be about the same for either party, the responding party can allow the requesting party to have access to the records
• Contention interrogatories, that is, interrogatories that inquire about legal contentions, are permitted

Question 23

Request to Produce

Answer 23

• Asks a party to make available for review & copying materials, or to allow entry on designated property
• ESI must be produced in the form that requesting party specified, responding party may object
• Disclosing party must respond to request in writing w/in 30 days of service, stating that material will be produced/asserting objections
• Only parties can be sent a request to produce, but a nonparty can be served with a subpoena to produce

Question 24

Medical Exams (physical/mental)

Answer 24

• A CO is required to compel a party (or person in the party’s custody/control) to submit to a medical exam
• Requesting party must show:
  (1) that the person’s health is in actual controversy and
  (2) good cause
• Custody & control is narrow (ex. An employee is not in the custody/control of an employer, but a child is in custody & control of the parent)
• Requesting party chooses the licensed medical professional to perform the exam

Question 25

Requesting a copy of the medical report

Answer 25

• Medical professional will write a report and give it to the requesting party
• Person ongoing the exam can get a copy
• If person requests & obtains the report, she must (on request) produce all medical reports by her own doctors about the same medical condition
• She also waives any doctor-patient privilege that she may have had with her doctor regarding that condition

Question 26

Request for Admission

Answer 26

• A written request that someone admit certain matters
• Responding party must respond in writing within 30 days of service, wither denying specifically/objecting
• If responding party states that she has made a reasonable inquiry and cannot find enough info from which to admit/deny, she can state that she doesn’t know the answer
• If the party fails to deny a proper request, the matter is deemed admitted
• Requests for admission are often used to authenticate docs – “admit that this the K”

Question 27

Signature Requirement for Discovery

Answer 27

• Parties sign substantive answers to discovery under oath
• R.11 does not apply to discovery docs
• However, by another rule, every discovery request and response is signed by counsel certifying it is
  (1) Warranted
  (2) Not interposed for an improper purpose; &
  (3) Not unduly burdensome

Question 28

Duty to Supplement

Answer 28

• If new facts come to light after responding to discovery that make a required disclosure, interrogatory, request for production, or request for admission incomplete/incorrect, the party must supplement her response to discovery
• Self-policing obligation

Question 29

Scope of Discovery

Answer 29

• A party can discover anything that is relevant to a claim/defense & proportional to the needs of the case

Question 30

Privilege

Answer 30

• A party can object to discovery on the basis of privilege

Question 31

Work Product Protection

Answer 31

• “Trial prep material”, material prepared in anticipation of litigation, is protected
• In fed ct, WP need not be generated by a lawyer. Can be by the party herself or by any rep of a party

Question 32

Qualified vs Absolute WP

Answer 32

• WP sometimes may be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way. QWP.
• Some WP is absolutely protected and cannot be discovered. “Opinion WP” consisted of mental impressions, conclusions, opinions, or legal theories of the disclosing party and cannot be discovered

Question 33

Party’s Own Statement Discoverable

Answer 33

• Notwithstanding WP, a party has a right to demand discovery of any previous statement that she has made regarding the case

Question 34

Asserting Privilege or WP

Answer 34

• If a party withholds discovery or seeks a protective order based on privilege/WP, she must claim the protection expressly and describe in detail the materials
• She does this in a doc, called a privilege log, that lists the materials protected by date, author, recipient, and privilege/protection claims
• It must be in enough detail to allow the judge to determine whether material is protected

Question 35

Inadvertent Disclosure of Privileged/Protected Material

Answer 35

• If a party inadvertently produced privileged/protected material, she should notify the other party promptly.
• The other party then must return, sequester, or destroy the material pending a decision by the ct about whether there has been a waiver

Question 36

Enforcement of Discovery Rules

Answer 36

• There are 3 ways cts get involved in discovery disputes:
  (1) Party seeks protective order
  (2) Party responds, but not fully
  (3) No response to discovery request

Question 37

Party Seeks Protective Order

Answer 37

• If responding party thinks a discovery request subjects her to annoyance, embarrassment, undue burden or expense, she can move for a protective order
• The party must certify that she tried in good faith to resolved the issue without court involvement; that she asked the other side to meet & confer
• Actions a ct can take
  (1) Deny discovery
  (2) Limit discovery
  (3) Permit discovery on specific terms

Question 38

Party Responds, But Not Fully

Answer 38

• If party respond to a request but fails to answer all questions, because she objects to them (or some) she may be compelled to comply by CO

Question 39

No Response to Discovery Request

Answer 39

• If responding party fails to completely to attend her deposition, respond to interrogatories, or respond to requests for production, she will be subject to sanctions & costs

Question 40

Sanctions Against a Party

Answer 40

• The party seeking sanctions generally must certify that she tried in good faith to get the info without ct involvement; tried to meet & confer

Question 41

Sanctions: Less Than A Full Response

Answer 41

• When a producing party responds, but not fully, sanctions are a two step process
  (1) The requesting party moves for an order compelling the producing party to answer the unanswered questions, to produce the unproduced material, etc., plus costs (including attorney’s feed) of bringing the motion
  (2) If the producing party violates the order compelling her to answer, the ct can enter merits sanctions, along with costs & attorney’s fees for bringing the motion, are available. The producing party could be held in contempt for violating a CO (no contempt for refusing to submit to a medical exam)

Question 42

Sanctions: No Response

Answer 42

• If producing party fails to respond at all, ct can enter merits sanctions plus costs (and attorney fees for motion)
• There is no need to get an order compelling answers; you directly to merits sanctions

Question 43

Merit Sanctions

Answer 43

• A judge is free to choose among the following as “merits” sanctions
  (1) Establishment order (establishes facts as true)
  (2) Strike pleadings of the disobedient party (as to issues re the discovery)
  (3) Disallow evidence from the disobedient party (as to issues re the discovery)
  (4) Dismiss plaintiff’s case (if bad faith shown)
  (5) Enter default judgment against defendant (if bad faith shown)

Question 44

Litigation Hold

Answer 44

• When litigation is reasonably anticipated, parties must preserve discoverable information
• ESI has some special rules. Suppose ESI is truly lost—it cannot be recovered/restored.
• If party in control of it fails to take reasonable steps to preserve it, ct may order measures to cure harm caused other party
• Ct may enter an adverse inference order, that is, tell the jury that it must presume that the lost info would be unfavorable to the party that lost the ESI, and it can enter merit sanctions only if the party who lost the ESI acted with intent to deprive the other party of the ESI
• The ct also may enter a default against D when her conduct was in bad faith