Discovery

Question 1

Initial Required Disclosures

Answer 1

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

Question 2

Required disclosures about an expert witness

Answer 2

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

Question 3

Expert witness report

Answer 3

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

Question 4

Expert witness deposition

Answer 4

Opposing party may depose an expert witness
-Best practice is to subpoena
-Deposing party will bear the costs of the deposition

Question 5

Required pretrial disclosures

Answer 5

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

Question 6

Discovery phase

Answer 6

Parties cannot send discovery requests until after the Rule 26(f) conference
-Exception: requests to produce can be served earlier

Question 7

Deposition

Answer 7

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

Question 8

Notice requirements

Answer 8

Party = notice of deposition will compel appearance

Non party = need subpoena to compel appearance
-100 mile travel limit for non party

Question 9

Subpoena duces tecum

Answer 9

Requires the person being deposed to bring requested materials with her to the deposition

Question 10

Deposition of organization

Answer 10

“Notice” a deposition of an organization describes the facts she wants to discover in the deposition
-Organization designates the proper person to be deposed

Question 11

Limitations of depositions

Answer 11

1. A party cannot take more than 10 depositions or depose the same person twice
2. Depositions cannot exceed 1 day or 7 hours

Question 12

Use of depositions at trial

Answer 12

1. To impeach the deponent
2. For any purpose if the deponent is an adverse party
3. For any purpose if the deponent is unavailable for trial

Question 13

Interrogatories

Answer 13

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

Question 14

Request to produce

Answer 14

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

Question 15

Medical exam

Answer 15

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)

Question 16

Request for admission

Answer 16

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

Question 17

Signature requirement for discovery

Answer 17

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

Question 18

Duty to supplement

Answer 18

A party must supplement her response to discovery if new facts arise
-Self-policing obligation

Question 19

Scope of discovery

Answer 19

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

Question 20

Privilege

Answer 20

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

Question 21

Asserting privilege or work product

Answer 21

1. Must expressly claim privilege; and
2. Describe the materials in detail in a privilege log

Question 22

Inadvertent disclosure of privileged/protected material

Answer 22

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

Question 23

Protective order

Answer 23

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

Question 24

Partial or no response to discovery request

Answer 24

Partial response = court can compel through court order

No response = subject to sanctions + costs

Question 25

Sanctions

Answer 25

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

Question 26

Merits sanctions

Answer 26

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)

Question 27

Litigation hold

Answer 27

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