Discovery

Question 1

what is the discovery phase?

Answer 1

he phase of litigation in which the parties find out what the other parties and witnesses know. The idea is to avoid trial by ambush—we want things known before we go to trial.

Question 2

what are initial required disclosures in general, and what specifically must be disclosed under this rule?

what is the penalty for failure to disclose

Answer 2

IN GENERAL
—- Information that each party must give to other parties even though the parties have not asked for it.
—- Unless a court order or stipulation of parties says otherwise, must be given within 14 days of the Rule 26(f) conference, each party must disclose certain information.
—- you have to give up stuff that HELPS you, to the other party. you don’t have to give other party stuff that can HURT you [at this stage]

-

REQUIRED DISCLOSURES

(1) Identities of Persons with Discoverable Information that the Party May Use to Support Her Claims or Defenses

The names, telephone numbers, and addresses of persons with discoverable information, and the topics on which they have discoverable information, who the party may use to support her claims or defenses

(2) Documents and Things that the Party May Use to Support Her Claims or Defenses, if they are in the party’s control

Ex: photographs, paper records, videos, and electronically stored information (“ESI”).

NOTE: Copies or a descrip- tion of the documents may be produced instead of the document itself.

(3) Computation of Relief and Along with Supporting Documents/ESI

Anyone claiming monetary relief must provide a “computation,” supported by documents or ESI of the amount sought as an initial disclosure.

(4) insurance coverage

The parties must disclose any insurance that might cover all or part of the judgment in the case even though the existence of the insurance probably would not be admissible at trial. “Discoverable” is broader than “admissible.”

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PENALTY FOR FAILURE TO DISCLOSE

party cannot use the undisclosed material in the case unless the failure to disclose was substantially justified or harmless.

Question 3

what are all the types of required disclosures during discovery, in general?

Answer 3

(1) required initial disclosure

(2) required disclosures about an expert witness

(3) required pretrial disclosures

Question 4

what is the required expert witness disclosure?

expert witness vs. consulting expert

what is the contents of the disclosure?

what are parties allowed to do after disclosure?

what is the penalty for failure to disclose?

Answer 4

WHAT IT IS
Later in the case, at a time directed by the court, each party must identify expert witnesses (”EWs”) who may provide testimony at trial (that is, opinion testimony) and provide certain other disclosures noted below.

EXPERT WITNESS VS. CONSULTING EXPERT

Expert witness = testifies at trial; facts known to them and their opinions are discoverable

Consulting expert = helps party prepare a case; facts and opinions held by them not discoverable absent exceptional circumstances

CONTENTS
Each party must disclose the identify of and written report prepared by the EW.

Written report must include:
(1) opinions that the EW will express

(2) bases for opinions

(3) facts used to form the opinions

(4) EW’s qualifications

and

(5) how much EW is being paid

[early drafts of EW report and communications between L and EW are work product]

AFTER DISCLOSURE - DEPOSITION

After the disclosure above, a party may take the deposition of the EW. Best practice is for that party to subpoena the EW to compel her atten- dance. (Without the subpoena, the expert may not show up even if the parties agreed to the deposition.) The deposing party ordinarily will bear the cost of the EW’s deposition. (The court will set a per-hour fee.)

PENALTY FOR FAILURE TO DISCLOSE
If a party fails to disclose material that was required to be disclosed, she cannot use the EW in the case unless the failure was justified or harmless

Question 5

what are the required pretrial disclosures

Answer 5

No later than 30 days before trial, the parties must give detailed information about:
– their trial evidence, including identity of witnesses who will testify live or by deposition and documents, ESI, and other things that they intend to introduce at trial.

Question 6

rules surrounding parties requesting information from one another after initial disclosures

Answer 6

– parties may request info from one another after initial disclosures

– a party cannot send discovery requests to another party until after rule 26(f) conference [which is when initial disclosures are allowed]

Exception:
Requests to produce can be served earlier (once 21 days has passed since service of process) - this request is treated as though it was served at the rule 26(f) conference

Question 7

who bears cost of responding to discovery requests?

Answer 7

cost of responding to discovery borne by responding party

Question 8

list discovery tools

Answer 8

depositions

interrogatories

requests to produce

medical exam

request for admission

party’s statement

Question 9

what are depositions and what are their characteristic features?

Answer 9

In a deposition, a person gives live testimony in response to questions by counsel or pro se parties.

The questions are usually oral, but can be written (if written, they are read by the court reporter).

The deponent testifies under oath, and the deposition is recorded by sound or video or stenographically so that a transcript can be made.

Both parties and nonparties may be deposed.

The deponent isn’t required to review her records prior to the deposition; testimony is from present recollection.

Question 10

how to compel appearance for a depo?

Answer 10

(1) notice of deposition — to compel appearance of a party to the case

(2) subpoena — to compel appearance of a nonparty
[If the party noticing the deposition fails to subpoena the nonparty and the deponent fails to show up, the noticing party may be liable for costs to the other parties]

(3) “notice” a deposition – compel organization
When the party is suing an organization, she may “notice” a deposi- tion of an organization, describing the facts that she wants to discover in the deposition. The organization then must designate a person(s) to testify on that matter.

Question 11

in context of a depo, what is a subpoena duces tecum?

Answer 11

A subpoena duces tecum requires the deponent to bring requested materials with her to the deposition.

Question 12

what is the limit on the deposition of nonparty

Answer 12

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

Question 13

limits on number and length of depositions

Answer 13

a party cannot take more than 10 depositions without court approval or stipulation

a party cannot depose the same person twice without court approval or stipulation.

Depositions cannot exceed one day of seven hours unless the court orders or parties stipulate otherwise.

Question 14

how may depositions be used at trial?

Answer 14

(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 of whether a party) is unavailable for trial (for example, illness, out of the country, etc.), unless that absence was procured by the party seeking to introduce the evidence.

Question 15

what are interrogatories

Answer 15

Interrogatories are written questions to be answered in writing under oath.

Question 16

what do you need to know about the limits and uses of interrogatories?

[to whom are they sent? max #? response time? manner of response? what if finding answer is difficult? can interrogatory inquire about legal contentions?]

Answer 16

• Interrogatories are sent only to parties, never to nonparties.
• The maximum number, absent a court order or stipulation, is 25, including subparts.
• Interrogatories are to be answered within 30 days from their service.
• A party must answer interrogatories based upon information 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 17

what is a request to produce?

rules for ESI?

response time?

who can be sent a request to produce?

Answer 17

A request to produce asks a party to make available for review and copying documents or things, including electronically stored information (“ESI”), or to permit entry on designated property to inspect, measure, etc.

ESI must be produced in the form that the requesting party specifies, but the responding party may object.

The disclosing party must respond to the request in writing within 30 days of service, stating that the material will be produced or asserting objections.

Only parties can be sent a request to produce, but a nonparty can be served with a subpoena to require her to disclose the same types of information.

Question 18

how to compel a party to submit a medical exam

Answer 18

A court order is required to compel (a) a party OR (b) a person in the party’s custody and 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

if under custody and control – that is a narrow designation: refers to child in custody and legal control of parent, NOT employee w/r to employer

Question 19

what kind of medical exams may be compelled?

Answer 19

physical or mental

Question 20

if medical exam is ordered, who chooses the examiner?

Answer 20

The requesting party chooses the licensed medical professional to perform the exam.

Question 21

when a medical exam is ordered, what is produced as a result?

who can get a copy of it?

what does that person have to do after receiving the copy?

Answer 21

Once the court orders a medical exam and the medical professional conducts the exam, the medical professional will write a report and give it to the requesting party.

The person undergoing the exam can get a copy of the report.

If the person requests and obtains the report, she must (on request) produce all medical reports by her own doctors about that same medical condition.

She also waives any doctor-patient privilege that she may have had with her doctor regarding that condition.

Question 22

what is a request for admission

timing of response and manner of response

Answer 22

A request for admission is a written request that someone admit certain matters.

The responding party must respond in writing within 30 days of service, either denying specifically or objecting.

But if the responding party states that she has made a reasonable inquiry and cannot find enough information from which to admit or 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 documents—“admit that this is the contract.”

Question 23

what is the signature requirement for discovery?

Answer 23

Parties sign substantive answers to discovery under oath

Every discovery request and response is signed by counsel certifying it is:
* Warranted;
* Not interposed for an improper purpose; and
* Not unduly burdensome.

[Rule 11 does not apply to discovery but this rule does]

Question 24

what is the duty to supplement

Answer 24

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

Question 25

what is the scope of discovery? that is, what can parties discover?

Answer 25

A party can discover anything that is relevant to a claim or defense and proportional to the needs of the case

Information need not be admissible to be discoverable.
[Can a party discover something like hearsay, even though it would not be admissible at trial? Yes—just so it’s relevant to a claim or defense and proportional to the needs of the case.]

if opponent asks for relevant and proportionate info that may be harmful to you, you gotta give it to them [unless you can claim some privilege or work product]

Question 26

rules on ESI discovery

Answer 26

A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.

On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.

If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows GOOD CAUSE, considering the limitations of Rule 26(b)(2)(C).

The court may specify conditions for the discovery and may allocate the expenses how it sees fit [i.e. force parties to share expense]

Ex:
Plaintiff seeks discovery from Defendant of relevant emails. The emails have been deleted from Defendant’s server. They can be recovered or restored only at enormous cost. Defendant asserts that the material is “not reasonably accessible because of undue burden or cost.” Defendant can move for a protective order; alternatively, Defendant can object to discovery and Plaintiff will have to move to compel discovery. Suppose the court finds the emails are not reasonably accessible because of undue burden or cost. Now what does Plaintiff try to do?
If Plaintiff does show good cause for discovery, the court can order production and allocate expenses between the parties.

Question 27

on what bases may party object to / refuse to comply with discovery?

Answer 27

(1) ESI - undue burden and cost

(2) privilege [evidentiary, confidential AC priv, etc.]

(3) protective order

(4) party may simply object to discovery, and state grounds for objection [i.e. not relevant or too costly] … other party can then move to compel discovery

(5) work product

Question 28

what is work product and what qualifies as work product in federal court?

Answer 28

Work product = “trial preparation material” = material prepared in anticipation of litigation

what work qualifies?
– material generated by a lawyer
– material not prepared by a lawyer – it can be prepared by the party herself or by any representative of a party (for example, a private investigator).

Question 29

what is discoverable vs. non discoverable work product

Answer 29

generally, work product not discoverable:

“Absolute” work product = absolutely protected and NOT discoverable
—- “Opinion work product” consists of mental impressions, conclusions, opinions, or legal theories of the disclosing party and cannot be discovered.

Discoverable work product = “qualified work product”
— Work product that may be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way

Question 30

to what extent is a party’s own statement discoverable?

Answer 30

Notwithstanding work product, a party has a right to demand discovery of any previous statement that she has made regarding the case.

Question 31

if a party seeks protective order or withholds discovery on the basis of (a) work product or (b) privilege, what must she do?

Answer 31

she must claim the protection expressly and describe the materials in detail in a document called a PRIVILEGE LOG, that lists the materials protected by date, author, recipient, and privilege or protection claimed.

The log must be in enough detail to allow the judge to determine whether the material is protected.

Question 32

what happens if a party inadvertently produces or discloses privileged or protected material?

Answer 32

(1) notify the other party promptly.

(2) The other party then must return, sequester, or destroy the material pending a decision by the court about whether there has been a waiver.

Question 33

three ways to enforce discovery rules

Answer 33

(1) party seeks protective order from the court (defensive maneuver)

(2) court order – when party responds to a request but fails to answer all the questions because she objects to them (or some of them), she may be compelled to comply by court order [for this, she may also get sanctioned] (offensive)

(3) sanctions – if a responding party fails to completely attend her depo, respond to interrogatories, or respond to request for production, she will be subject to sanctions plus costs (offensive)

Question 34

when will a party seek a protective order

when will a court grant one?

what actions will court take?

Answer 34

PARTY SEEKING PROTECTIVE ORDER

A party may move for a protective order from the court when:

The responding party thinks a discovery request subjects her to:
– annoyance,
– embarrassment,
– undue burden or expense (for example, ESI is not reasonably accessible without undue expense, or the request is cumulative and not proportional to the case)
– info is confidential [trade secret]

WHEN COURT WILL GRANT ONE

party must certify that she tried in good faith to resolve the issue without court involvement; that is, she asked the other side to “meet and confer”

ACTIONS COURT WILL TAKE

If the court agrees, it can:
* Deny discovery;
* Limit discovery; or
* Permit discovery on specified terms.

Question 35

how to seek sanctions against a party for failure to comply with discovery

grounds for seeking sanctions

Answer 35

HOW TO SEEK SANCTIONS

The party seeking sanctions generally must certify that she tried in good faith to get the information without court involvement; that is, to try to “meet and confer.” Otherwise, SHE DOES NOT GET COSTS OR ATTORNEY’S FEES not to mention sanctions

GROUNDS FOR GRANTING SANCTIONS

(1) less than a full response
i.e. if a party responds to a request but fails to answer all questions because she objects to them (or some of them)

Two-step sanction process:

[A] The requesting party moves for an order compelling the producing party to answer the unanswered questions, to produce the unproduced material, etc.,
– if court grants motion to compel, there are minor sanctions such as costs (including attorneys’ fees) of bringing the motion and reasonable expenses.

[B] If the court grants the motion to compel, and the producing party violates the order compelling her to answer, the court can enter “merits” sanctions, along with costs and attorneys’ fees for bringing the motion. The producing party could be held in contempt for violating a court order (except there is no contempt for refusal to submit to a medical exam).

(2) no response

If the producing party fails to respond at all, the court can enter “merits” sanctions plus costs (and attorneys’ fees for the motion). There is no need to get an order compelling answers; you go directly to “merits” sanctions.

Question 36

what are merits sanctions

Answer 36

A judge is free to choose among the following as “merits” sanctions.

• Establishment order (establishes facts as true)
• Strike pleadings of the disobedient party (as to issues re the discovery)
• Disallow evidence from the disobedient party (as to issues re the discovery)
• Dismiss plaintiff’s case (if bad faith shown)
• Enter default judgment against defendant (if bad faith shown)

Question 37

when is a litigation hold appropriate?

Answer 37

BACKGROUND RULE - When litigation is reasonably anticipated, parties must preserve discoverable information.

SITUATION A LITIGATION HOLD APPLIES TO: Suppose ESI is truly lost—it cannot be recovered or restored. And suppose it was lost because the party in control of it failed to take reasonable steps to preserve it.

WHAT COURT MAY DO: The court may “order measures” to cure the harm caused to the other party:

– court can enter merits sanctions only if the party who lost the ESI acted with intent to deprive the other party of the ESI
– court may enter a default against D when her conduct was in bad faith

Question 38

exception to work product rule

Answer 38

the identity of people with discoverable information is discoverable - not work product

Plaintiff sues Defendant regarding an auto collision between them. Defendant asks Private Investigator to find the identities of the eyewitnesses to the wreck. Doing so costs thousands of dollars in investigation fees. Plaintiff serves an interrogatory on Defendant asking for the names of all persons who have information relevant to the case. Is the identity of the witnesses work product? NO

Question 39

rules for admitting depo testimony at trial

Answer 39

errors which could have been obviated if promptly presented are waived unless seasonal objection is made at the time of taking the deposition (ex: form of question, oath, conduct, etc.).

if you fail to object at the deposition as to the form of the question, for example, you waive the objection at trial

Question 40

when may a depo be used at trial

Answer 40

A rep may be used against any party who was present at the depo or had notice of it ….
(1) to impeach testimony of deponent as a witness

(2) for any purpose if court finds that deponent, including party-deponent, is dead, at a distance greater than 100 miles from the place of trial, or unable to testify because of age, sickness etc. (unless offering-party purposefully attempted to procure their absence)

(3) for any purpose if the deponent is an adverse party

Question 41

if there is a car accident, and then a physician treats a patient and the patient ends up suing the defendant for the car accident, is the defendant entitled to discover from the physician?

Answer 41

Yes

entitled to information regarding his observations, opinions, and treatment

BECAUSE, physician not retained by any party, and his observations not made in anticipation of litigation

Question 42

let’s say plaintiff’s attorney is deposing a non-party witness. Witness’s attorney (not actual defendant’s attorney) objects to a question even though it is within the scope of the discovery plan of the parties’ attorneys. Plaintiff’s attorney wants the witness to answer.

what does witness’s attorney do?

Answer 42

instruct the client not to answer the question and move for a protective order in the court in the district where the deposition will be taken

nonparties can move for a protective order directly, do not need to ask the defendant’s or plaintiff’s attorney to move for it on their behalf

Question 43

effect of submission of a discovery plan on issuing of protective order to prevent release of info asked for in the plan

Answer 43

submission of a plan does not preclude deponents from seeking a protective order even when the question/answer was allowed in the discovery plan