Discovery Flashcards
What are mandatory disclosures required as part of discovery process?
Mandatory disclosures under Rule 26(a) must be given without a party having to ask, and include:
1. initial disclosures
2. expert disclosures
3. pretrial disclosures
When must initial disclosures be filed?
Initial disclosures must be filed within 14 days after a Rule 26 conference and provided to all other parties
What must be included within initial disclosures?
- the name and contact info of any witness that a party may use to support a claim or defense
- copies or descriptions of documents, electronically stored information and tangible objects that the party may use to support its claim or defense
- computation of damages sought and supporting documents
- copies of an insurance agreements that may require the insurer to pay
What are expert disclosures?
If planning to rely on expert testimony, the party must disclose information regarding the expert
When must expert disclosures be provided?
At least 90 days before trial
What must be included within an expert disclosure?
- name and contact info of the expert
- expert’s final report which must include:
-expert’s qualifications
-expert’s opinion
-information relied on by expert
What are required pretrial disclosures?
- list of witnesses expected to be called
- witnesses that may be called if the need arises
- witnesses whose testimony will be given through deposition on transcript
- list of documents or physical evidence expected to be presented
When must pretrial disclosures be provided?
At least 30 days before trial
What is the scope of discovery under Rule 26(b)?
A party may ask for discovery material that is
1. non-privileged information 2. relevant to any claim or defense
3. proportional to the needs of the case
What is relevant material for the purposes of discovery?
Material is relevant if it is likely to make any fact in dispute more or less likely to be true, regardless of whether it would be admissible at trial
May a party seek discovery that would be inadmissible at trial?
Yes
What is work-product?
Even if relevant, work product including documents or tangible objects may be protected from discovery
When is material considered to be work product?
Work product is any document or tangible object created by a party or attorney in anticipation of litigation, including post-incident descriptions of events
What are exceptions to protection for work product?
A party can obtain work product if:
1. the work product is actually a statement the party itself has made
2. if the party seeking work product has substantial need and can’t get it without substantial hardship
Is privileged matter discoverable?
No, privileged matter is never discoverable
What is the scope of the attorney -client privilege?
Attorney/client privilege covers confidential communications between attorney and client for the purpose of obtaining or rendering legal advice
What constitutes an undue burden for purposes of discovery?
An undue burden exists in the following circumstances:
1. discovery is unreasonably cumulative or can be obtained from less burdensome sources or in a less burdensome way
2. party has ample opportunity to obtain information themselves
3. burden or expense of proposed discovery outweighs its benefits, considering the nature of the evidence, amount in controversy, and parties resources
What is a non-testifying expert?
A non-testifying expert assesses the merits of the case but has no intention of being called at trial
Is a non-testifying expert discoverable?
Generally if a non-testifying expert witness will not be called at trial they are un-discoverable
When will information regarding non-testifying experts be discoverable?
If the party has extraordinary need and no other way to obtain such information
Is testifying expert testimony and information discoverable?
Opinions held by those testifying are discoverable to a limited extent
What communications regarding testifying expert witnesses are discoverable?
- mandatory expert witness reports
- communications pertaining to compensation for expert’s study or testimony
- data provided by attorney to expert
- any assumptions the attorney asked the expert to make in an opinion
What are interrogatories?
Under Rule 33, interrogatories are questions submitted in writing to the other party
How many interrogatories may be served?
Up to 25
What may be included in interrogatories?
Interrogatories may seek facts or contentions
How long does a party have to respond to an interrogatory?
A party has 30 days to respond to an interrogatory
What is required of interrogatory responses?
- responses must be in writing
- objections to interrogatory must be stated with specificity
What are requests for admission?
Requests for admission under Rule 36 are requests to admit truth or fact
What is effect of admission upon request for admission?
If a fact is admitted, it’s there for the trial
How long does a party have to respond to a request for admission?
A party has 30 days to respond
How may a party respond to a request for admission?
A party may
-admit
-deny
-state they have made a reasonable attempt to ascertain the truth, but lack the information to admit or deny
What is the scope of requests for production?
Requests for production apply to documents, tangible items or access to evidence
How long does a party have to respond to request for production?
A party has 30 days to respond to a request for production
Can a party object to a request for production?
Yes, a party may object to a request for production on the grounds that the request exceeds the scope of recovery
What condition must documents requested for production be provided in?
If the request for production pertains to documents the responding party must provide them as they are maintained in the usual course of business, with a label
When may copies of documents be provided in response to requests for production?
Requested electronically stored information may be provided as copies
When may requests for mental or physical examination be discoverable?
Under Rule 35 requests for mental or physical examination may be used when a party’s mental or physical state is at issue
When are physical or mental examinations discoverable?
Only upon court order
What is required if a court orders mental or physical examination discovery?
When ordered, the party must submit a report prepared by examiner that details exam
Who is a physical or mental examination available to if ordered by the court?
The examination report must be made available to any requesting party
How many depositions can be ordered by a party?
A party may depose up to 10 people as a matter of right, but can get a court order for more
When may depositions be used?
Depositions may be used at hearing or trial
What are requirements for use of depositions at hearing or trial?
Opposing party must have had reasonable opportunity to be present at the deposition
When can deposition of a party or party’s designee be used?
Deposition of a party or party’s designee can be used for any purpose
When can a deposition of a non-party be used?
Deposition of a non-party can be used:
1. to impeach deponent
2. if deponent is unavailable it can be used for any purpose
When is a deponent deemed to be unavailable?
If they are dead or have disappeared
What are subpoenas?
Subpoenas are orders for discovery from non parties
What are subpoenas duces tecum?
Demands for documents
What are subpoenas ad testificatum?
Demands for testimony
When may a person object to a subpoena?
- If the subpoena is outside the scope of discovery
- if the subpoena would require the person to travel more than 100 miles from home or work
When may a motion to compel discovery be made?
A motion to compel may be made after movant has in good faith attempted to confer with resistor
What are implications if motion to compel is granted?
If motion to compel is granted then the movant gets fees and expense for motion
What are implications if motion to compel is denied
Non-movant may get fees, but only if the motion was not substantially justified
When are sanctions available for non-compliance with discovery?
Sanctions are available if party refuses to comply after motion to compel has been issued
What types of sanctions may be issued for non-compliance with discovery?
- court order declaring facts established for requesting party
- court order prohibiting disobedient party from presenting certain claims or defenses
- stay or dismissal of the entire action
- order of contempt
What is requesting party’s recourse if the opposing party doesn’t comply with discovery request at all?
If the party doesn’t comply at all, the requesting party can immediately seek all sanctions other than a order of contempt
Is a motion to compel required if the opposing party completely fails to comply with discovery?
No, there is no need for motion to compel if the other party completely fails to reply to discovery requests
