Discovery Flashcards
Purpose of Discovery
- gathering sufficient evidence to
- leverage a favorable settlement; and
- Win on the merits on a summary judgment motion or at trial.
- Also
- Avoid suprises
- Efficiency at trial
- $$$
- Assess strenghts and weaknesses., etc
Signing Disclosures and Discovery Requests, Responses and Objections
- Rule requires the attorney to sign every discovery request and response.
- Your signature says that to the best of your knowlege after a reasonbale inquiry:
- Your disclosures are complete and correct;
- You have done your legal homework
- Your request/response is not asserted for an improper purpose; and
- Your request is not unreasonable/unduly burdensome/expensive/disproportioante to the needs of the case.
Required Disclosures
Three phases during the litigation:
1. Initial Disclosure
- Individuals with evidence
- Documents
- Computation of Damages
- Insurance Contracts
2. Disclosure of Expert Testimony
3. Pretrial Disclosure [list of the identities of witnesses and documents to be used at trial is to occur at least 30 days priot to trial]
Discovery scope and limits
- Scope of discovery [Unless otherwise limited by court order]:
- Parties may obtain discovery regarding any nonprivileged matter [i.e. attorney client/work priduce] that is **relevant **to **any party’s claim **/defense and proportional to the needs of the case[importance of issues in action; amount in controversy, the parties’ relative access to relevant info…]
Protective Orders
- A party/any person from whom discovery is sought may move for a protective order [after she has] in good faith conferred/attempted to confer with other affected parties in an effort to resolve the dispute without court action.
- Court** may issue order to protect** party/person from annoyance/embarassment/oppression/undue burden/expense including 1 of the following:
- Forbidding disclosure/inquiry into certain matters
- Specifying logistics and methos of disclosure
- Sealing discovery/confidentiality orders
Most often used where:
- Diagreement around scope of the discovery
- Protection for vulnerable parties
- Protection for insider knowledge/trade secrets
- [NOTE: The attorney must try to first resolve the issue outside of court before moving for a protective order.]
Timing and Sequence of Discovery
Timing
- Party** may not seek discovery** from any source before parties have conferred, except… when authorized by these rules, by stipulation or by court order.
Sequence
- Unless the parties stipulate or court orders otherwise for the parties’ and witnesses’ convenince and in the interests of justice:
– A. methods of discovery may be used in** any sequence**; and
– B. Discovery by one party does not require any other party to delay its discovery.
Supplementing Disclosures and Responses
- Discovery must be supplemented/corrected in a timely manner where:
– the disclosing party learns that in some material respect the disclosure/response is incomplete/incorrect, AND if the additional/corrective info has not been made known to other parties during discovery or in writing.
or as ordered by the court.
[Sometime referred to as a “continuing disclosure obligation” - Includes most documents and materials given to experts]
Conference of the Parties; Planning for Discovery
- At least 21 days before the timing of the 16(b) scheduling conference w/ the court, the parties must “meet to confer” to develop a “discovery plan” that is submitted to the court 14 day later.
- Intitial disclosures btwn parties are then made within 14 days of 26(f) conference.
Discovery Tools and Mechanics
- Depositions
- Written Interogatories
- Production of documents of things
- Physical and Mental Examinations
- Requests for Admissions
- Informal Discovery
Depositions by Oral Examinatin
What is a Deposition?
- Witness[deponent] answers sworn questions under oath.
- Recorded [i.e. stenographer, camera]
- Can be remote/use exhibits
What occurs?
- Lawyers ask questions of witness
- Must comport with FRCP scope rules
- Lawyers object to questions based on rules of evidence to preserce the objection, but deponenent must answer. [Unless confidential/privileged]
- Deponent reviews + certifies transcript.
A party may take up to 10 non-party depositions. [may have some exception and nuances for parties, expert witnesses, + orgainization representatives]
Party needs “leave of the court” where there is no agreement between the parties and:
- Party is requesting deposition beyond the 10 cap.
- Redeposing an individual [regardless of the 10 cap]
- Attempting to try and depose someone before required meet + confer for discovery plan
- Parties agree but the deponent is imprisoned [need a court order to effectuate it].
Interrogatories to Parties
What are interrogatories?
- Written questions for the opposing party
- Limit of 25 questions as a right [including subparts]
- Questions are drafted by lawyers and answered by the opposing party lawyers.
Why use them?
- Efficient for baseline info/concrete q
- Less expensive than depositions
- Can be treated as an admission for evidence
Producing Documents, ESI, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
The request:
- A) Must describe w/ reasonable particularity each item/category of items to be inspected
- B) Must specify a** reasonable time, place, and manner** for the inspection and for performing the related acts; and
- C) May specify the form/forms in which electronically stored info is to be produced.
- [Remember: All discovery must be - Relevant; Not Privileges; Proportional]
[Important NOTE: Parties have obligations to preserve ESI and other reasonable anticipated discovery]
Physical/Mental Examinations
The court where the** action is pending **may order a party whose mental or physical condition – including blood group – is in controversy to submit to a physical/mental examination by a suitable licensed/certified examiner.
- Includes persons under the control of parties [i.e. wards, children]
- Only upon motion and order by the court [no sua sponte]
- court must find “good cause”
- Scope rules apply, and it must be identified in the order
- The court orders the time, place, manner, and conditions
- [Applies where the condition of a party is truly “at issue” + needed for the case [good cause, not just relevance]]
Requests for Admissions
- 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 Rule26(b)(1) relating to:
– (A) facts, the application of law to fact, or opinions about either; and
– (B) the genuineness of any described documents
Similiar rules for response as Answers:
- Admit or deny facts in good faith
- OK if cannot respond due to no reasonable info
- Must make a motion to amend
Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
- Must first attemot to meet + confer to resolve outside of court.
- Then can file a motion to compel disclosure/response
- Evasive/incomplete disclosure treated as non- disclosures.
- Sanction for violations of court orders
—i.e. failure to produce discovery; failure to supplement/correct disclosures; failure to meet + confer in good faith, failure to show up to depositions… - Can also be subject to attorneys fees/costs
- Can impact ability to present evidence at trial
