Discovery Flashcards
Initial Required Disclosures
Information that each party must give to other parties without them asking
-Only information that support’s the party’s claims or defense (nothing harmful to the party)
-Includes documents and tangible things including photos, records, videos, and electronically stored information (ESI) that are in the party’s control
-If applicable, must include computation of monetary damages and/or **insurance coverage **
-Must be made within 14 days of the Rule 26(f) conference
-Failure to disclose = cannot use unless substantially justified or harmless
Required disclosures about an expert witness
Each party must identify its expert witnesses (EW) who may provide testimony at trial
-Does not include consulting experts
-Failure to disclose = cannot use unless substantially justified or harmless
Expert witness report
Each expert witness must prepare and disclose a written report that contains:
-Opinions that EW will express
-The bases for the opinions
-The facts used to form the opinions
-The EW’s qualifications; and
-How much the EW is being paid
*Earlier drafts and communications are protected by work product
Expert witness deposition
Opposing party may depose an expert witness
-Best practice is to subpoena
-Deposing party will bear the costs of the deposition
Required pretrial disclosures
Parties must give detailed information about their trial evidence at least 30 days before trial
-Identity of testifying witnesses and what they intend to communicate at trial
Discovery phase
Parties cannot send discovery requests until after the Rule 26(f) conference
-Exception: requests to produce can be served earlier
Deposition
In a deposition, a person gives live testimony, under oath, in response to questions by counsel or a pro se party
-Recorded and transcribed
-Both parties can be deposed
-The person being deposed does not have to do homework for deposition
Notice requirements
Party = notice of deposition will compel appearance
Non party = need subpoena to compel appearance
-100 mile travel limit for non party
Subpoena duces tecum
Requires the person being deposed to bring requested materials with her to the deposition
Deposition of organization
“Notice” a deposition of an organization describes the facts she wants to discover in the deposition
-Organization designates the proper person to be deposed
Limitations of depositions
- A party cannot take more than 10 depositions or depose the same person twice
- Depositions cannot exceed 1 day or 7 hours
Use of depositions at trial
- To impeach the deponent
- For any purpose if the deponent is an adverse party
- For any purpose if the deponent is unavailable for trial
Interrogatories
Written questions to be answered in writing under oath
-Only sent to parties
-Max interrogatories, including subparts: 25
-Must be answered within 30 days
-Answer based upon information reasonably available (must do homework)
-May simply turn over business records if the burden of finding the answer is similar to both parties
Request to produce
Asks the other party to make documents and ESI available for review and copy or to permit entry onto property for inspection
-ESI must be in the requested form, but opposing party can object
-Must respond in writing within 30 days stating that the material will be produced or asserting any objections
Medical exam
Compelling a party to submit to a medical exam requires:
(1) a court order
(2) that the person’s health is in controversy; and
(3) good cause
*If the party requests a copy of the medical examination, he must produce all medical reports by his own doctors about the same medical condition (waiving doctor-patient privilege)
Request for admission
A written request that someone admit certain matters
-Must respond by specifically denying or objecting within 30 days of service
-Failure to deny = matter is admitted
Signature requirement for discovery
Rule 11 does not apply to discovery, but there is a similar certification that a discovery request is:
-Warranted
-Not for an improper purpose; and
-No unduly burdensome
Duty to supplement
A party must supplement her response to discovery if new facts arise
-Self-policing obligation
Scope of discovery
A party can discover anything that is relevant to a claim or defense and proportional to the needs of the case
-Information does NOT need to be admissible to be discoverable
Privilege
A party can object to discovery on the basis of evidentiary privilege
-Attorney-client: a confidential communication between an attorney and client for the purposes of obtaining legal advice
-Work product privilege: material prepared in anticipation of litigation (does not need to be generated by a lawyer)
>Opinion work product: absolute protection for mental impressions and legal conclusions of the attorney
>Qualified work product: discoverable if party shows substantial need + undue hardship
-Identity of people with discoverable information is NOT protected
-A party’s own statements are NOT protected
Asserting privilege or work product
- Must expressly claim privilege; and
- Describe the materials in detail in a privilege log
Inadvertent disclosure of privileged/protected material
If a party inadvertently produces privileged or protected materials, she should promptly notify the other party
-Party must return, sequester, or destroy the material pending a waiver decision by the court
Protective order
A defendant can move for a protective order or object to discovery of ESI on the basis of undue burden, cost, or humilitation
-Court may allocate costs if the plaintiff can show good cause to obtain the ESI despite the costs
Partial or no response to discovery request
Partial response = court can compel through court order
No response = subject to sanctions + costs
Sanctions
Party must meet and confer before seeking sanctions
Partial response requires two step process:
1. Request order compelling production
2. If party fails to comply, court can enter “merits” sanctions
No response = straight to merit sanctions
Merits sanctions
A judge can choose from the menu of sanctions:
-Establishment order
-Strike pleadings of the disobedient party
-Disallow evidence from the disobedient party
-Dismiss plaintiff’s class (bad faith required)
-Enter default judgment against D (bad faith required)
Litigation hold
When litigation is reasonably anticipated, parties must preserve discoverable information:
1. ESI truly lost because controlling party failed to take reasonable steps to preserve it = order measures (establishes facts as true)
2. ESI truly lost by controlling party on purpose = adverse inference
