Discovery Flashcards
what is the pretrial timeline
- pleading
- rule 26f confernce between parties
- Initial disclosure
- Rule 16(b) initial pretrial conference (the judge is at this one)
- Rule 16 pretrial order (discovery and motion plan)
- Discovery
- Motion for summary judgment
- Rule 16a pretrial order (trial plan)
what is rule 16 all about
just tells you requirements of all the pretrial stuff
what does rule 26(a)(1) talk about
what you HAVE to give the other side even if they don’t ask for it
Ie things that would help your opponent
what are the five main objections to discovery requests
relevance, work product, privlage, undue burden, and non testifiying experts
what is the relevance rule for discocery and how is relveance defined
parties are permitted discovery into any matter that is relevant to any claim or defense
relevant = tending to make any fact at issue in the case more/less likely to be true
what is the work product rule for discovery?
what is work product
work product = document or other tangible object created by a party or party’s attorney in anticipation of litigation
there must be a showing that you NEED this work product and cant get it any other way otherwise, you cant touch it
fact work product v opionion work pattern
fact – the actual materials
opinion – mental impressions or conlcusions of the party’s attonrey
policy reason behind the work product rule
Attorneys are bad witness, testimony would be strategy or hearsay
Lawyers would stop writing stuff down if everything they worked on was discoverable
Hickman v taylor
4 survivors testifiying at public testimony
Fortenbaugh PRIVATELY interview the four survivors, he takes notes
Asks each of them to write out a statement
In discovery, petitioner directly asks for all that fortenbaugh has
issue: can the P demand the attorney’s notes from witness interviews
opposing counsel must demonstrate necessity, justification, or undue prejudice for access to counsel’s written statements, private memos, and personal recollections.
what is the discovery dance
You can object to certain discovery requests, but the other side can move for a motion to compel
Usually a broad discovery request gets narrowed though this process
But sometimes the parties wont budge
However, you need to try to work it out between yourselves before you take it to the judge
what does rule 26d do
Gives judge discretion to adjust timing and sequence of discovery
Giacchetto
D seeks to compel P to turn over social media posts in discovery
Any posts that are connected to her emotional well being (in response to her request for emotional damages)
Any posts that are connected to her physical well being (in response to her request for physical damages)
P argues that its a FISHING EXPEDITION
A plaintiff’s entire social networking account is not necessarily relevant for purposes of discovery simply because he or she is seeking emotional-distress damages.
According to Federal Rule of Civil Procedure (FRCP) 26(1)(b), parties may obtain discovery regarding any matter not privileged that is relevant to the subject matter involved in the pending action. Relevancy is construed broadly so as to encompass matter that is either itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.
Marrese v. American Academy of Orthopaedic Surgeons
During pretrial discovery, the doctors requested all files pertaining to the academy’s denial of membership applications between 1970 and 1980. The academy refused to produce the materials. The academy refused to comply. The district court held the academy in criminal contempt for violating the discovery order and fined the academy $10,000. The academy appealed.
Is a discovery order valid if the order is not carefully designed to reconcile the parties’ competing interests in allowing or denying discovery?
Said the district court should have reviewed the evidence in camera
District court judge should have stopped P from abusing the discovery process and the crim contempt against D is reversed
A discovery order violates Federal Rule of Civil Procedure 26 if the order is not carefully designed to reconcile the parties’ competing interests in allowing or denying discovery.
what are the elements for attorney client privlage
- Communication (written or oral)
- Between privileged parties (the client/client’s agent and attorney/attorney’s agent, subject to Upjohn if the client is corporation)
- Made in confidence (outside the presence of strangers to the privileged info)
- For the purpose of formulating or providing legal advice to the client
what is the attorney client privlage rule in disocovery
privlage information is protected from discovery
underlying facts are not protected only the communication is privileged
upjohn - issue of who’s a privileged party – what test does the court do away with and replace it with
Thomas as general counsel for the company conducts investigation via questionnaire
Purpose of the questionnaire was to figure if bribery happened
Sent to all foreign general and area managers
Managers were instructed to treat the investigation as highly confidential and not to discuss it with anyone other than upjohn employees
Responses were sent directly to general counsel
Made it clear that responder was dealing with something of a leagal nature
IRS tries to investigate as well
Subpoenas all files relevant to investigation including the questionnaire
The discovery dance ensued!
Thomas objects to the subpoenas
IRS files a motion to compel
issue: Are questionnaires sent to a company’s employees, including lower level employees, by its general counsel protected by the attorney-client privilege?
In the corporate context, the attorney-client privilege applies to not only those high-level employees who have the authority to act on the legal advice of the attorney, but also to any of those employees who provide information to the attorney so that he may give such legal advice.
does away with control group test because too restrictive and doesnt protect lower level employees and replaced with two questions
- Did the scope of the employee’s duties involve the lawsuit?
- was communication made in a way that the employee knew it was legal consequence?
ie figuring out element two of attonrey cilent privlage!
what are the elements of rule 26(c)(G) trade secretes
Info including methods, formulas, process, and combo of those
Which derives independent economic value by virtue of being kept secret
And is subject to efforts reasonable under the circumstances to maintain its secrecy
what are interrogotries (rule 33)
written questions for a party to answer
can you negotiate the 25 question limit on rule 33
yes! you can negotiate to modidty
who are interrogatories directed at?
can non parties get interrogatories
who drafts the answer?
they are directed at the party from another party
non parties dont get interogatories
the lawyer drafts the answers! you aks the client for the info you need, then show your client to make sure the can swear under otath that all the info is true
what are contention interrogatoires? (ie rule 33(a)(2)
how can you get around giving them,since they are not automatically objectionable
its an interogatory asks for the evidence supporting the party’s claims
you can avoid by giving what you have, subject to all the evidnece you have at the time
how long do you have to respond to interogatories
Must respond within 30 days
what does rule 34 request for production cover?
its a way for you to look at the physcial evidnec of the case
this is how you get your exhinnits and how you look at what your opponents exhibits may be
if someone asks a rule 33 question and a rule 34 request for production that asks for the same info, do you have to produce both
see rule 33(d)
what is the proper way to request production via rule 34
Must be somewhat specific in your request just to give opposing side an idea of what to send you/what you’re looking for
what is rule 30 depostion?
a form of live testimony; provides opportunity to question parties and witnesses about the evidence
in depostion, whats the difference between dircect examination and cross examination
direct – oppsing isde
cross- ususual the clients attorney
what is the diffrence between objections of depostions at trial vs at the actual depostion
at trial = judge rules on it right away
at depostion =just becuase you object doesnt mean the question cant be answer
when do you NEED to object to a question in a depostin ? when do you not because they can be corrected
certain things can be corrected at depostion so the dont need to be objected to
however, things like badgering a witness need to be objected to, and if you dont object at the time, you waive your right to object to it at trial if its used at trial
what does rule 36 request for admission allow ; how long do you have to respond
The very purpose of the request is to ascertain whether the answering party is prepared to admit or regards the matter as presenting a genuine issue for trial
30 days to respond
why would anyone agree to admit to certina things from a rule 36 request for admission?
rule 37! not admitting things you know to be true and then your opponent proves ir, you have to pay sanctions
what does rule 37 sanctions for failing to cooperate in discovery allow
allows a party to move for sanctions, or a court to issue apporpirate sanction for not following a court order
what is rule 32
insturcts when we can use depo in court
insurance corp
Case filed in PA – so american insurance are cool, but foreign insurance company says no PJ
P petitions court for early discovery and requests of the foreign D documents so P can prove PJ
The foreign D decline to give it
Four separate orders to provide discovery
The last order from judge says they need to give up documents or he will deem PJ to exist as a matter of law
Issue
Can a court find the existence of personal jurisdiction when a defendant to an action merely fails to follow a court’s order?
a defendant in a civil action may submit to the jurisdiction of a court through many means, including through failing to follow discovery orders
Key Takeaway
PJ is a PERSONAL RIGHT THAT CAN BE WAIVED
Jurisdictional discovery can happen before PJ is proved
Sanctions must match the misconduct
what is baruies preferd order of discovery/three types of disovery
- Written discovery
a. Rule 33- interrogatories
b.Rule 34 -reqeust for production –
c. Rule 35 - med exam - Live testimony
a. Rule 30 - deposition by oral exam
b.Rule 45- subpoena duces tecumn - Request for admission
a.Rule 36
b. Rule 37- sanctions for failing to cooproeate in discovery
what does rule 30b6 say about deposing a company
You cant depose an entity, you need a human being
30b6 - business opponent must designate a representative
They should know the info
was the sanction issued in the ireland case (the one where the court presmed pj for failure to comply with discovery) a vioation of due process?
It’s not a violation of due process
Sanction is tailored to the refusal
Its narrowly tailored to the wrongful conduct
