Discovery Flashcards
Hickman holding
purpose of discovery is mutual knowledge of all the relevant facts gathered by parties
Discovery reduces the possibility of __
surprise at trial
Rule 16 is about
pretrial conference
Pretrial conference is the __
gateway to discovery
16a
Court may order pretrial conference for …
16b2
judge must issue scheduling order, unless good cause for delay within whatever earlier :90 days after any D served or 60 days after any D has appeared
Rule 16 doesn’t account for __
motion to dismiss 12b6
Courts are given ___ for pretrial conferences
broad discretion
rule about discovery
26
26(a)(1) is about
required initial disclosures
26(a)(1)
each party must disclose the witnesses they plan to call, documents they plan to sue, damages they seek/how calculated and their insurance 14 days after 26f
26(b) is about
discovery scope and limits
26(b)
Discovery is permitted of any unprivelged matter relevant to claim/defense of any party and proportional to the needs of the case
26(b) factors for proportionality
(6) importance of issues at stake, amount in controversy, relative access to info, party resources, importance of discovery in resolving the issues, whether burden outweighs its likely benefit
26(c) is about
protective orders
26(c)
Court may issue order to protect party/person from annoyance, embarassment, oppression, or undue burden of expense by forbidding/limiting discovery
26(f) is about
conference of the parties/planning for discovery
26(f)(1)
parties must confer as soon as practicable (unless ct says otherwise) or at least 221 dyas before r16 conference
Information within the scope of discovery does not need to be ___
admissible in evidence in order to be discoverable
Rule 37 is about
failure to make disclosures or cooperate in discovery/sanctions
37(a)
A party may move for an order compelling disclosure of discovering, moving party bears initial burden to prove opposing party’s answer incomplete, if satisfied burden shifts to non-movant to show why discovery should not be permitted
37(b)(2)
Court can impose sanctions, including attorney’s fees, on person who impedes, delays or frustrates fair examination of a deponent
37(c)(2)
Objections during a deposition must be noted on the record but examination still proceeds. A person may instruct deponent not to answer only when necessary to enforce limit order by court, or preservice a privelege
Oxbow is about
discovery proportionality/motion to compel
Oxbow definition of importance of issues at stake
significance of issues in philosophic, social or institutional terms
Oxbow defintion of amount in controversy
compare with cost
Oxbow defintion of relative access
Look for information assymmetry, burden of discovery heavier on party with more information
Oxbow definition of resources
make sure it isn’t war of attrition
Oxbow defintion of importance in resolving the issues
whether issues at stake are at very heart of litigation
Oxbow defintion of burden outweighs likely benefit
combine all previous factors into final CBA
Oxbow rule
Presumption under FRCP is that producing party bears cost of complying with discovery request. Court may only shift when a request would unduly burden producing party
Oxbow holding
P compelled to add CEO for discovery, all factors point in favor
Oxbow reason 1
issue important because could impact wide range of third parties
Oxbow reason 2`
Cost not excessive in comparison to huge potential recovery
Oxbow 3
P more info on this topic
Oxbow 4
P doesn’t have inability to pay
Oxbow 5
Important in resolving the main issue
Oxbow 6
Cost shifting analysis basically the same
Oxbow implies that some litigation
not as important as other
Alley is about
discovery on discovery, protective order
Alley rule 1
Fed courts will not compel a party to disclose its discovery process from another case without any showing of bad faith or unlawful withholding of documents
Alley rule 2`
Party from whom discovery is sought may move for a protective order when a clearly defined or serious injury will result without one
Alley holding
protective order granted
Alley reasoning 1
issues are important (serious injuries to consumers) and corp does have more resources but other factors outweigh
Alley reason 2
Cost of compliance roughly same as amount in controversy
Alley 3
P could seek out info on their own
Alley 4
documents not vital, burden doesn’t outweigh costs
Alley critique
Discovery not usually filed with court so may not actually be easy for P to find
Strategy in Alley vs Oxbow
Alley move for protective order, Oxbow responding party objected to request and requestors filed motion to compel
Interpretation of importance of issues Alley vs. Oxbow
Alley court focused on seriousness of injury to P, but Oxbow focused on impact on society
Interpretation of importance in resolving the issues A vs. O
Alley ask if it was vital/necessary to resolution, Oxbow asked if at heart of litigation
Rule 30 is about
depositions
30(b)(6)
A party can name a corp, org as deponent. The org must then designate someone to testify on its behalf
Under 30, Corporation has a duty to prepare witnesses to ___ but ___ doesn’t mean failed to comply
answer all questions about designated topic fully and without evasion, inability to answer every Q
