Discovery Flashcards
FRCP 26 f - conference of the parties planning for discovery
- conference timing. Except when the court orders otherwise the parties must confer as soon as practicable
- conference content, parties responsibilities - in conferring the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case, make, or arrange for the disclosures required by rule 26 a 1 discuss any issues about preserving discoverable information and develop a proposed discovery plan
FRCP 26 a 1 - Required initial disclosures
a. in general. Except as exempted by rule 26 a 1 b or as otherwise stipulated or ordered by the court a party must without awaiting a discovery request provide to the other parties
1. the name and is known the address and telephone number of each individual likely to have discoverable information along with the subjects of that information that the disclosing party may use to support its claim or defenses unless the use would be solely for impeachment
2. a copy - or a description by category and location of all documents electronically stored information and tangible things that the disclosing party had in it possession custody or control and may use to support its claims or defenses unless the use would be solely for impeachment
3. a computation of each category of damages claimed by the disclosing party
FRCP 34 a - producing documents esi and tangible things
a. in general - a party may serve on any other party a request within the scope of rule 26b
1. to produce ad permit the requesting party or it representative to inspect copy test or sample the following items in the responding parts possession custody or control
a. any designated documents or electronically stored information - including writings drawings graphs charts photographs sound recordings images and other data or date compilations - stored in any medium from which information can be obtained either directly or if necessary after translation by the responding party into a reasonably usable form or
b. any designated tangible things
FRCP 33 interrogatories to parties
a. in general
1. number. unless otherwise stipulated or ordered by the court a party may serve on any other party no more that 25 interrogatories including all discrete subparts
b. answers and objections
1. responding party - the interrogatories must be answered by the party to whom they are directed or
2. time to respond - usually 30 days
answering each interrogatory - each interrogatory must to the extent it is not objected to be answered separately and fully in writing under oath
FRCP 36 requests for admission
a. scope and procedure
1. scope - a party may serve on any other party a written request to admit for purposes of the pending action only the truth of any matters within the scope of rule 26 b 1 relating to
a. facts the application of law to fact or opinions about either
b. the genuineness of any described documents
2. form copy of a document - each matter must be separately states a request to admit the genuineness of a document must be accompanied by a copy of the document unless it is or has been otherwise furnishes or made available inspection and copying
3. time to respond - effect not responding - a matter is admitted unless within 30 days after being served the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney
FRCP 30 Depositions by oral examination
a. when a deposition may be taken
1. without leave - a party may be oral questions depose any person including a party without leave of court except as provided In rule 30a2
2. with leave - a party must obtain leave of court and the court must grant leave to the extent consistent with rule 26b1 and 2
a. if the parties have not stipulated to the deposition and (the deposition would result in more than 10 depositions being taken under this rule)
b. if the deponent is confined in prison
b. duration sanction motion to terminate or limit
1. duration. unless otherwise stipulated or ordered by the court a deposition is limited to 1 day of 7 hours
FRCP 26 b general provisions governing discovery
scope in general - unless otherwise limited by the court order the scope of discovery is as follows: parties may obtain discovery regarding ny non privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action the amount in controversy the parties relative access to relevant information the parties resources the importance of the discovery in resolving the issues and whether the burden or expense of the proposed discovery in resolving the issues and whether the burden of the expense of the proposed discovery outweighs it likely benefits. Information within this scope of discovery need not be admissible in evidence to be discoverable
Attorney Client Privilege
- the asserted holder of the privilege is sought to become a client
- (2) the person to whom the communication was made
○ (a) is a member of the bar of a court or his or her subordinate and
○ (b) In connection with this communication is acting as a lawyer - (3) the communication related to a fact of which the attorney was informed
○ (a) by his client
○ (b) without the presence of strangers
○ (c ) for the purpose of securing primarily either
§ (i) an opinion of law or
§ (ii) legal services or
§ (iii) assistance in some legal proceedings and
○ (d) not for the purpose of committing a crime of tort and - (4) the privilege has been
○ (a) claimed and
○ (b) not waived by the client
- (2) the person to whom the communication was made
Hickmans Work Product doctrine
materials prepared by counsel in preparation for litigation can be discoverable only where the requesting party can demonstrate that the production is essential to the preparation of ones case
FRCP 26b Discovery scope and limits
a. documents and tangible things - ordinarily a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representatives unless
1. they are otherwise discoverable under rule 26b1 (facts can be given) and
2. the party shows that It has substantial need for the materials to prepare its case and cannot without undue hardship obtain their substantial equivalent by other means
b. protection against disclosure - if the court orders discovery of those material it must protect against disclosure of the mental impressions conclusions opinions or legal theories of a party’s attorney or other representative concerning the litigation
Discovery disputes
(Rivera v. Nibco - jobs didn’t require english the workers were not documented and had to take an english exam - the burden is upon a party seeking a protective order to show good cause by demonstrating harm or prejudice that will result from discovery if a crt finds particularized harm will result from disclosure of info to the public then it balances the public and priv interests whether a protective order is necessary. An app crt may not overturn a protective order simply b/c the app crt might have weighed differently the various interests…)
Appealing a Discovery Decision
- Magistrate judge - most likely to handle the discovery dispute
- FRCP 72a Motion to reconsider - district judge will review the MJs decision
- Interlocutory Appeal to the Circuit Court - requires 1 the district judge to certify the issue for appeal and 2 the circuit court to decide to consider the matter
FRCP 26 c Protective Orders
- (1) In general - A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending or as an alternative on matters relating to a deposition in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to conder with other affected parties in an effort to resolve the dispute. Without court action. The court may for good cause (1. particularized harm or prejudice will result from the discovery 2. After balancing public and private interests the harm/prejudice must outweigh the interest in disclosure) issue an order to protect a party or person from annoyance embarrassment oppression or undue burden or expense including one or more of the following
○ (A) forbidding the disclosure or discovery
○ (d) forbidding inquire into certain matters or limiting the scope of disclosure or discovery to certain matters
FRCP 26g Signing Disclosures and Discovery Requests Responses and Objections
- (1) signature required, effect of signature - Every discovery request, response, or objection must be signed by at least one attorney of record in the attorneys own name - or by the party personally if unrepresented By signing an attorney or party certifies that to the best of the persons knowledge information and belief formed after a reasonable inquiry
○ (b) with respect to a discovery request, response, or objection it is
§ (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending modifying or reversing existing law or for establishing new law
§ (ii) not interposed for any improper purpose such as to harass cause unnecessary delay or needlessly increase the cost of litigation or
§ (iii) neither unreasonable nor unduly burdensome or expensive considering the needs of the case prior discovery in the case the amount in controversy and the importance of the issues at stake in the action- (3) an appropriate sanction may include an order to pay the reasonable expenses including attorneys fees caused by the violation
○ (Poole ex rel elliot v. Textron - product liability where defects in golf cart caused injury - rule 26g3 - if without substantial justification a certification is made in violation of the rule courts can impose an appropriate sanction of an appropriate amount of money including a reasonable attorneys fee)
- (3) an appropriate sanction may include an order to pay the reasonable expenses including attorneys fees caused by the violation
FRCP 37 Failure to make disclosures or to cooperate in discovery, sanctions
- (a) motion for an order compelling disclosure or discovery
○ (1) in general - on notice to other parties and all affected persons a party may move for an order compelling disclosure or discovery
○ (3) specific motions
§ (b) to compel a discovery response - a party seeking discovery may move for an order compelling an answer designation production or inspection This motion may be made if
□ (i) a deponent fails to answer a question asked under rule 30 or rule 31
□ (iii) a party fails to answer an interrogatory submitted under rule 33 or
□ (iv) a party fails to produce documents or fails to respond that inspection will be permitted or fail to permit inspection as requested under rule 34
○ (4) Evasive or incomplete disclosure answer or response - for purposes of this subdivision (a) an evasive or incomplete disclosure answer or response must be treated as a failure to disclose answer or respond
○ (5)(a) the reasonable expenses incurred In making the motion including attorneys fees but the court must not order this payment if (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action (ii) the opposing partys non disclosure response or objection was substantially justified or (iii) other circumstances make an award of expenses unjust
