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Federal Civil Procedure > Discovery > Flashcards

Discovery Flashcards

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Civil Procedure 1L flashcards
1
Q

What is discovery?

A

discovery is the phase of litigation in which the parties find out WHAT the other parties and witnesses know (avoid trial by ambush)

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2
Q

what is an initial required disclosure?

A

initial required disclosures are information that each party MUST give to the other parties - even if they have not asked for it

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3
Q

when must initial disclosures be given?

A

unless a court order or stipulation of parties says otherwise - within 14 DAYS of the rule 26(f) conference - EACH PARTY must disclose certain information

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4
Q

required disclosure of identities of persons with discoverable information - that the party MAY use to SUPPORT her claims/defenses

A

Must be disclosed as an initial disclosure:
- names, telephone #’s, and addresses of persons with DISCOVERABLE INFORMATION, wh the party MAY USE TO SUPPORT THEIR CLAIMS/DEFENSES

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5
Q

required disclosure of documents + things party may use to SUPPORT their claims/defenses

A

documents and tangible things THAT THE PARTY MAY USE TO SUPPORT HER CLAIMS/DEFENSES must be disclosed as an initial disclousre
includes:
- photographs
- records
- videos
- electronically stored information

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6
Q

what coudl you provide instead of the documents itself?

A

you may provide copies or a description of the documents - instead of the document itself

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7
Q

what does NOT need to be disclosed?

A
  • documents and tangible things that are NOT in the party’s control need not be disclosed
  • information/things that the party will not be using to support their claims/defenses
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8
Q

initial required disclosure of: computation of relief along with supporting documents

A

anyone claiming MONETARY relief must provide a “computation” supported by documents or electronically stored information of the AMOUNT sought as an initial disclosure

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9
Q

initial required disclosure of: insurance coverage

A

the parts must disclose any insurance that MIGHT cover ALL or PRT of the judgment in the case - even though the existence of the insurance probably would not be admissible at trial

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10
Q

what happens if a party fails to disclose initial required disclosures?

A

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 to disclose was SUBSTANTIALLY JUSTIFIED or HARMLESS

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11
Q

required disclosure later on: EXPERT WITNESS

A

at a time directed by the court - each party MUST IDENTIFY EXPERT WITNESSES who may PROVIDE TESTIMONY AT TRIAL (opinion testimony) and provide certain other disclsoures

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12
Q

what is a “consulting expert”?

A

a consulting expert is an expert who was hired to help prepare the case, but that the party does not intent to call them to testify at tiral

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13
Q

are “consulting experts” discoverable?

A

FACTS KNOWN and OPINIONS held by consulting experts are GENERALLy not discoverable - ABSENT “EXCEPTIONAL CIRCUMSTANCES”

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14
Q

disclosure of expert witness– IDENTITY AND REPORT

A

as to expert witnesses who may be used at trial - each party generally must disclose to the other parties the (1) IDENTITY of the expert witness; and (2) a WRITTEN REPORT prepared by expert witness

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15
Q

what must the relied disclosure of the written report by the expert witness contain?

A

the written report must include:
1) opinions that the EW will express
2) the BASES for the opinions
3) the FACTS used to form the opinions
4) the EW’s QUALIFICATIONS; and
5) how much the EW is being PAID

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16
Q

AFTER DISCLOSURE OF EW - party may take DEPOSITION of EW

A

**best practice is for the party to SUBPOENA the EW to compel their attendance (expert might not show up w/o subpoena, even tho parties agreed)

**deposing party will generally cover the cost of the EW’s deposition (Court will set a per-hour fee)

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17
Q

what happens if a party fails to disclose the EW/material that was required to disclose?

A

if a party fails to disclose - she CANNOT use the EW in the case UNLESS the failure was JUSTIFIED or HARMLESSS

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18
Q

what ar the required PRETRIAL disclosures?

A

no later than 30 DAYS BEFORE TRIAL –> the parties MUST give detailed information about their TRIAL EVIDENCE
includes:
a) identity of witnesses who will testify (live or by deposition)
b) documents, ESI, and other things they intend to introduce at trial

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19
Q

what are the three phases of REQUIRED DISCLOSURE?

A

1) initial required disclosures
2) required disclosures later in the case (EW’s)
3) required PRETRIAL disclosures

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20
Q

What can parties do aside from ‘required disclosures’ ?

A

Once initial disclosures have been made - parties MAY request information from one another

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21
Q

when can a party send discovery request to another party?

A

absent a court order or stipulation that provides otherwise - party CANNOT send discovery request to another party UNTIL AFTER the Rule 26(f) conference

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22
Q

what are included in these “discovery requests” // discovery tools

A

5 discovery tools
1) depositions
2) interrogatories
3) request to produce
4) medical exam (physical or mental)
5) request for admission

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23
Q

what is an exception to the discovery time limit after rule 26(f) conference?

A

requests to PRODUCE can be served EARLIER (once 21 days has passed since SERVICE OF PROCESS)
**such a request is treated though it was served at the Rule 26(f) conference

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24
Q

Discovery tool #1) what is a DEPOSITION?

A

in a deposition- a person gives LIVE testimony in RESPONSE to questions by counsel or pro se parties

questions are usually oral but can be written (read by court reporter)

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

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25
Q

who may be deposed?

A

BOTH parties and non-parties may be deposed

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26
Q

what do deponents testify off of?

A

the deponent isn’t required to review their records prior to the depositions - their testimony is FROM PRESENT RECOLLECTION

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27
Q

what type of deposition NOTICE is required for parties?

A

party does nOT need to be served with a subpoena; a NOTICE OF DEPOSITION is sufficient to compel their appearance

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28
Q

what type of deposition NOTICE is required for non-parties?

A

a non-party MUST be served with a SUBPOENA – or else they are NOT required to attend

**if the party noticing the deposition fails to do so and the deponent fails to show up - the noticing party may be liable for costs to the other parties

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29
Q

what is a ‘subpoena duces tecum’?

A

a subpoena duces tecum requires the deponent to BRING REQUESTED MATERIALS with them to the deposition

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30
Q

what type of notice do you serve on the deponent if you want them to bring requested materials to their deposition?

A

you would serve them with a “subpoena duces tecum”

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31
Q

what is the limit on the deposition of a non-party

A

unless a nonparty agrees otherwise - the farther she can be required to travel is 100 miles from where the non-party resides OR is employed

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32
Q

what is the process of ‘deposing’ an organization?

A

when the party is suing an organization - she may ‘notice’ a deposition of an organization - DESCRIBING the FACTS that they want to DISCOVER in the deposition

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33
Q

what does an organization have to do after being served with notice of deposition?

A

the organization then must designate a proper person(s) to testify on that matter

34
Q

General limits on all depositions?

A
  • party cannot take more than 10 depositions
  • party cannot depose the same person twice W/O court approval or stipulation
  • dispositions cannot exceed 1 DAY OF 7 HOURS - uNLESS the court orders or parties stipulate otherwise
35
Q

what are depositions used for??

A

subject to rules of evidence - depositions may be used AT TRIAL for:
- to IMPEACH the deponent
- for any purpose if the deponent is an ADVERSE party; or
- for any purpose if the deponent (regardless of whether party or non-party) is UNAVAILABLE for trial (illness, out of country, etc), UNLESS that absence was procured by the party seeking to introduce the evidence

36
Q

Discovery tool #2) what is an interrogatory?

A

Interrogatories are written question to be answered in WRITING under OATH

37
Q

who may receive an interrogatory?

A

only parties are sent interrogatories - non-party’s are never sent interrogatories

38
Q

Are contention interrogatories permitted?

A

Contention interrogatories are permitted

39
Q

Discovery tool #3) what is a request to produce?

A

A request to produce asks a PARTY to either:
(a) make available for REVIEW and COPYING documents or things, including electronically, stored information; OR
(b) to permit entry on designated property to inspect, measure, etc.

40
Q

How much electronically stored information be produced in a request to produce?

A

Electronically stored information must be produced in the form that the requesting party specifies, but the responding party may object

41
Q

When must a party respond to a request to produce?

A

A party (disclosing party) must respond to a request to produce in writing within 30 DAYS of SERVICE, stating that the material will be either a) produced; or b) asserting objections

42
Q

Can non-parties be sent a request to produce?

A

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

43
Q

Discovery Tool #4) Medical Exam (Physical or Mental)

A
44
Q

What is required to compel a party to submit to a medical exam?

A

A court order is required to compel a party (or person in the parties, custody and control) to submit to a medical exam

45
Q

What must a requesting party show in order to obtain the party to submit to a medical exam?

A

They are requesting party must show:
(1) that’s a persons health is an actual controversy; and
(2) good cause

46
Q

Who chooses the licensed medical professional, to perform the medical exam?

A

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

47
Q

What happens once a court orders medical exam at the medical professional conduct exam?

A

The medical professional will then write a report and give it to the requesting party

48
Q

Can the person undergoing exam retain a copy of the medical exam?

A

The person undergoing the exam can get a copy of the report. If the person request and obtains the report, she must, on request, produce all medical reports by her own doctors about that same medical condition.

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

49
Q

Discovery Tool #5) Request for Admission

A

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

50
Q

How much time does the responding party have to respond to the request for admission?

A

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

51
Q

what other options does a responding party have when they are responding to a request for admission?

A

Is the responding party states that she has made a reasonable inquiry and cannot find enough information from age to admit, or deny, she can state that she does not know the answer

52
Q

What happens if the responding party fails to deny a proper request for admission?

A

If the party fails to deny a proper request, the matter is deemed admitted

53
Q

When a request for admissions most commonly used?

A

Request for admissions are often used to authenticate documents – i.e. “admit that this is the contract”

54
Q

what is the signature requirement for discovery?

A

parties SIGN substantive answers to discovery under oath.

Rule 11 does not apply to discovery documents

55
Q

who must sign discovery requests?

A

Every discovery request and response is signed by counsel certifying it is:
1) warranted;
2) not interposed for an improper purpose; and
3) not unduly burdensome

56
Q

what must a party do if new information happens to arise AFTER they have already responded to a discovery request?

A

If new facts come to light AFTER responding to discovery that mask 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

57
Q

SCOPE OF DISCOVERY: what can a party discover?

A

a party can discover ANYTHING that is
(1) “RELEVANT TO A CLAIM OR DEFENSE; and
(2) PROPORTIONAL to the needs of the case”

58
Q

when can a party discover something that is HARMFUL to them?

A

something that is harmful to a party may be discoverable using the regular discovery tools

59
Q

if something is discoverable - does this mean that it is admissible in court?

A

Nope!! Discovery is a lot broader than “admissibility.” Information need not be admissible to be discoverable

60
Q

How can a party object to discovery?

A

a party can object to discovery on the basis of evidentiary privilege – i.e. confidential communications between attorney and client.

61
Q

what type of information is protected from discovery (i.e. not discoverable)?

A

work product or “trial preparation material” which is material prepared in anticipation of litigation - is protected.

62
Q

who does work product need to be generated by in order to be protected?

A

in federal court - work product need not be generated by a lawyer. It can be prepared by the party herself OR by any representative of a party (i.e. a private investigator)

63
Q

when could ‘work product’ be discoverable?

A

also known as “QUALIFIED WORK PRODUCT” —— Work product sometimes may be discovered if the requesting party can show:
(1) substantial need; and
(2) undue hardship in obtaining the materials in an alternative way

64
Q

What ‘work product’ is absolutely protected?

A

“Opinion work product” (which consists of mental impressions, conclusions, opinions, or legal theories of the disclosing party) cannot be discovered

65
Q

what are protective orders for electronically stored information?

A

DEFENDANT can move for protective order OR object to discovery of electronically stored information
- undue costs are considerations
- court may allocate costs IF Plaintiff can show “good cause” to obtain despite costs

66
Q

is the identify of people who have discoverable information discoverable?

A

YES!

67
Q

What about a party’s own statement?

A

A party has a right to demand discovery of any previous statement that they made regarding the case

68
Q

how does a party withhold discovery or seeks a protective order (based ion privilege or work product)?

A

The party must claim the protection EXPRESSLY and describe the materials in detail.
- this is done in a PRIVILEGE LOG - that lists the materials protected by DATE, AUTHOR, RECIPIENT, and PRIVILEGE/PROTECTION claimed

**must be done in enough detail to allow the judge to determine whether the material is protected

69
Q

inadvertent disclosure of privileged or protected material

A

if a party inadvertently produces privileged or protected material - they should NOTIFY the other party PROMPTLY.

The other part must then RETURN, SEQUESTER, OR DESTROY the material pending a decision by the court about whether there has been a WAIVER

70
Q

3 ways that courts get involved in discovery disputes

A

1) where party goes for a protective order
2) Party responds to request - but not fully
3) no response to discovery request

71
Q

(1) party seeks protective order

A

if the RESPONDING party thinks that a discovery request subjects them to annoyance, embarrassment, undue burden or expense, OR the request is cumulative and not proportional to the case – they can move for a protective order

**party must certify that they TRIED IN GOOD FAITH TO RESOLVE THE ISSUE WITHOUT COURT INVOLVEMENT - (asked the other side to meet and confer)

72
Q

what actions can a court take if a party moves for a protective order?

A

a) deny discovery;
b) limit discovery; or
c) permit discovery on specified terms

73
Q

(2) party responds - but not fully

A

if a party responds to discovery requests, but fails to answer all OF THE QUESTIONS - because they object to them/some of them - they may be COMPELLED TO COMPLY BY COURT ORDER

74
Q

(3) no response to discovery request

A

TOTAL FAILURE TO COMPLY WITH THE REQUEST –> If a responding party fails completely to attend her deposition, respond to interrogatories, or respond to request for production, – they will be subject to VARIOUS SANCTIONS + costs

75
Q

What. must a party who is seeking sanctions certify?

A

party seeking sanctions generally must certify that they tried in good faith to get the information WITHOUT court involvement - that is to “meet and confer”

76
Q

How do sanctions work when a party responds but not fully?

A

When a producing party response, 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 atty’s fees) of bringing the motion

(2) is it producing party violates the order compelling her to answer, the court can enter “MERITS” sanctions, along with cost in 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)

77
Q

What can a quart do if the producing party feels to respond at all?

A

If the producing party fails to respond at all, the court can enter “MERTIS” 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.

78
Q

What are “merits” sanctions?

A

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 issue re the discovery)
- dismiss plaintiff’s case (if bad faith shown)
- enter default judgment against defendant (if bad faith shown)

79
Q

must parties preserve discoverable information - and if so, when?

A

When litigation is reasonably anticipated, parties must preserve discoverable information. E S. I have some special rules.

80
Q

when must a party preserve ESI discoverable information?

A

Suppose ESI is truly lost, it cannot be recovered or restored - an it was lost because the party in control of it FAILED to take reasonable steps to preserve it, the court may order measures to cure the harm caused to the other party

81
Q

What can the court do if the party who lost the ESI acted with an intent to the party of the ESI?

A

– if the party who lost the ESI acted with an INTENT TO DEPRIVE THE PARTY OF THE ESI - the court can enter an ‘adverse inference’ order - telling the jury that it must presume the lost information was unfavorable to the party who lost it
- can also enter a merits sanction

82
Q

what can the court do if the defendant acted in bad faith?

A

The court also may enter a default against the defendant when her conduct was in bad faith

Federal Civil Procedure (13 decks)

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