Discovery Flashcards
Discovery scope
a. standard and scope for discoverability
b. automatic disclosure requirement
c. work product
d. privilege
e. duty to supplement
f. pretrial conferences
g. discovery devices
h. things waived if not made at deposition
Standard and scope for discoverability
(FRCP 26(b)(1)): A party may seek to obtain any non-privileged matter
that is relevant to a claim or defense of any party and proportional to the needs of the case (considering importance of issues, AIC, parties’ access to relevant information, parties’ resources, importance of discovery in resolving issues, burden/expense vs. likely benefit). Information sought need not be admissible at trial to be discoverable as long as it is reasonably calculated to lead to the discovery of admissible evidence.
Electronically stored information (ESI): Responding pt need not produce if not reasonable b/c of burden or cost. Must show this to ct upon motion to compel. Ct may still order for cause w/ cost-shifting conditions
Automatic disclosure requirement (FRCP 26(a))
Without being requested, parties must disclose certain information
“then reasonably available” to other parties. The court may preclude a party who violates this obligation from using the info/witness at trial. Required disclosure:
i. initial disclosures (w/in 14 of 26(f) conference)
ii. expert testimony (90 before trial)
iii. pretrial disclosures (30 before trial)
Automatic disclosure requirement: initial disclosures
(w/in 14 of 26(f) conference): Names and contact info of individuals likely to have discoverable information, evidence for claims or defenses, computation of damages, insurance agreements
Automatic disclosure requirement: expert testimony
(90 before trial): Identity of experts expected at trial, qualifications, opinions + their basis
Automatic disclosure requirement: pretrial disclosures
(30 before trial): Info about evidence to be used (docs, trial and deposition witnesses)
Work product
in anticipation of litigation or trial discoverable only upon showing substantial need, cannot obtain substantial equivalent w/o undue hardship. Mental impressions, conclusions, opinions are usually protected
Privilege
Confidential comm b/w expert & counsel are privileged, except compensation info or facts given to expert
i. Pt withholding info believed to be privileged must make claim expressly and describe its nature to other pt
Duty to supplement
If disclosed information was materially incomplete or incorrect, and other party does not know
Pretrial conferences (Rule 26(f) conference)
Parties must “meet and confer” at least 21 days before a scheduling
conference to plan discovery and initial disclosures and to consider claims, defenses, settlement, deadlines
Discovery devices (8)
(1) interrogatories (up to 25, including subparts), (2) requests for admissions, (3) requests for production, (4) depositions (of anyone, up to 10 per side, once per person—unless ct order or pt stipulation), (5) motions to compel, (6) subpoenas duces tecum (documents from parties and non-parties), (7) subpoenas (to produce non-pts w/in 100 miles of where person lives or works, may reimbursed cost of attending if requesting pt absent), (8) physical or mental examinations (by “suitably licensed or certified examiner” by ct order only for good cause, when pt’s condition is in controversy—see FRCP 35; examined pt may request copy of exam, which waives privilege regarding condition)
i. ESI: Requesting pt may specify form of production; responding pt MUST use that form unless objected to. If form not specified, may use any form the ESI is ordinarily maintained in or reasonably usable by other pt
Things waived if not made at the deposition
An objection to a deposition notice, deposition officer’s qualification, or taking of a deposition (e.g., form of oral or written question, or competence, relevance, materiality of testimony) is waived if it is not made at the deposition
