Discovery Flashcards
What is spoliation of evidence?
The negligent or intentional destruction or significant alteration of evidence required for discovery.
When does a potential litigant have a duty to preserve evidence?
When litigation is reasonably anticipated, even if it has not yet been commenced. Must take reasonable measures to preserve.
When are sanctions for spoliation of evidence imposed?
Sanctions are authorized for spoliation of evidence only if the information cannot be restored or replaced by additional discovery. In determining sanctions, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence.
What sanctions are available for spoliation of evidence if the evidence can be retrieved?
When retrieval of the information is possible, even if typically considered inaccessible due to cost of retrieval, a court may order it and assign the costs to the party who destroyed the evidence; no further sanctions may be imposed.
What sanctions are available when a sanctioned party acted with the purpose of depriving the other party of the evidence’s use in litigation?
the available sanctions include (i) a presumption that the destroyed or lost information was unfavorable to the sanctioned party; (ii) a jury instruction that it may or it must presume the information was unfavorable to the party; or (iii) an entry of a default judgment against the party.
What is a protective order?
Court order issued to protect a party or other person from whom discovery is sought from annoyance, oppression, undue burden, undue expense, embarrassment
Will grant if movant shows (1) good cause, and (2) certifies that they have conferred or attempted to confer in good faith with the OP to resolve the matter without court action
Purpose of conference requirement is to same judicial time/resources.
What does signing a disclosure/request/objection signify?
The attorney/party certifies to the best of their knowledge that the
(1) disclosure is complete and correct, or
(2) the request/response/objection is:
(a) consistent with existing law
(b) not made for any improper purpose
(c) not unduly burdensome or expensive.
When must a subpoena be used to compel attendance of a deposition?
Required to compel a nonparty deponent’s attendance.
But a party deponent can be compelled to attend through written notice.
What is the subpoena’s geographical reach?
Compel attendance:
- within 100 miles of where the subpoenaed person resides/employed/regularly transacts business, OR
- within the state where this person resides/employed/transacts business IF they are the party or the party’s agent
When can a party answer an interrogate by specifying business records?
If (1) the burden of deriving the answer is substantially the same for the interrogating/responding party, AND (2) responding party provides the interrogating party an opportunity to examine and copy such records.
When must a court order the payment of the OP’s reasonable expenses?
When one of the sanctionable conducts occurs:
- failure to attend pretrial conference
- substantially unprepared for conference
- no gf participation in conference
-failure to obey pretrial order
Must order payment unless:
- payment would be unjust
- noncompliance was justified
What are reasonable sanctions a court may order? What is sanctionable conduct?
When one of the sanctionable conducts occurs:
- failure to attend pretrial conference
- substantially unprepared for conference
- no gf participation in conference
-failure to obey pretrial order
Permissible sanctions:
- dismiss action in whole/in part
- strike pleadings in whole/in part
- hold in contempt of court
- issue default judgment
- prohibit use of evidence
- stay further proceedings
