Discovery

Question 1

What information is included in the “Initial Required Disclosures” and when is it due?

Answer 1

Within 14 days of 26(f) conference (unless court order / stipulation of parties).

Must disclose:

(1) Names, numbers, and addresses of persons with discoverable information ONLY IF the party may use that person to SUPPORT her claim or defenses.

(2) Documents and tangible things ONLY IF (1) party may use it to support her claims or defenses and (2) they are in the party’s custody and control (including ESI) (copies or descriptions okay).

(3) Computation supported by documents or ESI of the monetary amount sought.

(4) Any insurance that might cover all or part of the judgment in the case even though likely not admissible at trial.

*Party that fails to disclose cannot used undisclosed material in the case unless failure was substantially justified or harmless.

Question 2

What disclosures are required for experts?

Answer 2

Must disclose idenity and written reports prepared by EW, which is an expert who may be used at trial (consulting expert not used in trial to testify).

*Failure to dislcosue = cannot use the EW in the case unless the failure was justified or harmless..

Written report must include:
1. Opinions that the EW will express;
2. The bases for the opinions;
3. The facts used to form the opinions;
4. The EW’s qualifications; and
5. How much the EW is being paid.

*Earlier drafts of the EW report and communications between the lawyer and the EW are work product.

Question 3

Expert Witness Deposition: When, How, Cost.

Answer 3

After the parties disclose information on EW, a party may take their deposition.

Should subpoena the EW to compel her attendance. (not required to show up if not.)

Deposing party ordinarily bears the cost of the EW’s deposition. (The court will set a per-hour fee.)

Question 3

What are the required pre-trial disclosures and when are they due?

Answer 3

No later than 30 days before trial, the parties must give detailed information about their trial evidence, including identity of witnesses who will testify live or by deposition and documents, ESI, and other things that they intend to introduce at trial.

Question 4

When are discovery tools allowed?

Answer 4

After the Rule 26(f) conference

Exception: requests to produce can be served earlier (once 21 days has passed since service of process). Such a request is treated as though it was served at the Rule 26(f) conference.

Question 5

Who bears the cost of responding to discovery requests?

Answer 5

Generally, the cost of responding to discovery is borne by the responding party

Question 6

What are the main discovery tools?

Answer 6

1. Depositions
2. Interrogatories
3. Request to Produce
4. Medical Exam (Physical or mental)
5. Request for Admission

Question 7

What is a deposition?

Answer 7

Live testimony under oath in response to questions by counsel that is generally recorded.

Parties and nonparties.

Deponent only has to testify from present recollection.

Question 8

Do you have to subpeona a deponent?

Answer 8

A party does not need to be served with a subpoena. A notice of deposition is sufficient to compel her appearance.

A nonparty must be served with a subpoena or else she is not compelled to attend.

If the party noticing the deposition fails to do so and the deponent fails to show up, the noticing party may be liable for costs to the other parties.

Question 9

What is Subpoena Duces Tecum?

Answer 9

Requires the deponent to bring requested materials with her to the deposition.

Question 10

How far can a nonparty deponant be required to travel?

Answer 10

100 miles from their residents or work unless they agree otherwise.

Question 11

What is the process for deposing an organization?

Answer 11

She may “notice” a deposition of an organization, describing the facts that she wants to discover in the deposition. The organization then must designate a person(s) to testify on that matter.

Question 12

What are the limits on depositions?

Answer 12

A party cannot:
1. take more than 10 depositions or
2. depose the same person twice
without court approval or stipulation.

Depositions cannot exceed one day of seven hours unless the court orders or parties stipulate otherwise.

Question 16

What are the requirements to request a medical exam (physical or mental?)

Answer 16

A court order is required to compel a party (or person in the party’s custody and control - narrow: not employee, yes child) to submit to a medical exam.

The requesting party must show: (1) that the person’s health is in actual controversy and (2) good cause.

The requesting party chooses the licensed medical professional to perform the exam.

Requesting a Copy of the Report:
- The medical professional will write a report and give it to the requesting party.
- The person undergoing the exam can get a copy of the report. BUT
if the person requests and obtains the report, she must (on request) produce all medical reports by her own doctors about that same medical condition AND she also waives any doctor-patient privilege that she may have had with her doctor regarding that condition.

Question 17

What is a Request for Admission?

Answer 17

A written request that someone admit certain
matters. (Often used to authenticate documents—“admit that this is the contract.”)

The responding party must respond in writing within 30 days
of service, either:
1. denying specifically, or
2. objecting, or
3. state she doesn’t know the answer (after reasonable inquiry and cannot find enough information from which to admit or deny)

If the party fails to deny a proper request, the matter is deemed admitted.

Question 20

What is the standard for the scope of discovery?

Answer 20

Anything that is:

(1) relevant to a claim or defense; and

(2) proportional to the needs of the case;

(3) not protected by: (a) privilege or (b) work product protection.

Note: “discoverable” is broader than “admissible.”

Question 23

What is the difference between qualified and absolute work product?

Answer 23

a. Qualified vs. Absolute Work Product
Work product sometimes may be discovered if the requesting
party can show substantial need and undue hardship in obtaining
the materials in an alternative way. This is called “qualified work
product.” Some work product, however, is absolutely protected and
cannot be discovered. “Opinion work product” consists of mental
impressions, conclusions, opinions, or legal theories of the disclosing
party and cannot be discovered.

Question 24

Is a party’s own statement discoverable if it is protected by work product?

Answer 24

Yes. Notwithstanding work product, a party has a right to demand
discovery of any previous statement that she has made regarding the
case.

Question 25

How do you assert privilege or work product?

Answer 25

She must claim the protection expressly and describe the materials in detail. (It must be in enough detail to allow the judge to determine whether the material is protected).

She does this in a document, called a privilege log, that lists the materials protected by date, author, recipient, and privilege or protection claimed.

Question 26

What happens if you sent privileged or protected material by accident?

Answer 26

If a party inadvertently produces privileged or protected material, she should notify the other party promptly. The other party then must return, sequester, or destroy the material pending a decision by the
court about whether there has been a waiver.

Question 27

What are the three ways that courts get involved in discovery disputes?

Answer 27

1. Party seeks a protective order.
2. Party responds, but not fully. (compelled by court order).
3. No Response to Discovery Request (sanctions + Cost).

Question 28

How does a party seek a protective order from discovery and what can the judge do?

Answer 28

Party can move for a protective order if (1) they think a discovery request subject her to annoyance, embarrassment, undue burden or expense and (2) certifies that she tried in good faith to resolve the issue without court involvement.

If the court agrees, it can: (1) deny discovery, (2) limit discover, or (3) permit discovery on specified terms.

Question 29

What happens if a party responds to a discovery request, but not fully?

Answer 29

She may be compelled by court order and then, if doesn’t comply w/ court order, sanctions.

Question 30

What if a party fails completely to discovery requests?

Answer 30

She will be subject to various sanctions plus cost.

Question 31

A party seeking sanctions for failure to comply with discovery must…

Answer 31

Certify that she tried in good faith to get the information without court involvement; that is, to try to “meet and confer.”

Question 32

Less than full discovery response, sanctions?

Answer 32

(1) The requesting party moves for an order compelling the producing party to answer the unanswered questions, to produce the
unproduced material, etc., plus costs (including attorneys’ fees) of
bringing the motion.

(2) If the producing party violates the order compelling her to
answer, the court can enter “merits” sanctions, along with costs and attorneys’ fees for bringing the motion. The producing party could be held in contempt for violating a court order (except there is no contempt for refusal to submit to a medical exam).

Question 33

No discovery response, sanctions?

Answer 33

If the producing party fails to respond at all (see 10.7.3., above), the court can enter “merits” sanctions plus costs (and attorneys’ fees for
the motion). There is no need to get an order compelling answers;
you go directly to “merits” sanctions.

Question 34

What are merits sanctions?

Answer 34

A judge is free to choose among the following as “merits” sanctions.
* Establishment order (establishes facts as true)
* Strike pleadings of the disobedient party (as to issues re the discovery)
* Disallow evidence from the disobedient party (as to issues re the
discovery)
* Dismiss plaintiff’s case (if bad faith shown)
* Enter default judgment against defendant (if bad faith shown)

Question 35

What is a litigation hold?

Answer 35

When litigation is reasonably anticipated, parties must preserve
discoverable information. ESI has some special rules. Suppose ESI
is truly lost—it cannot be recovered or restored. (This is different
from Hypo 10G, in which the ESI could be restored.) And suppose it
was lost because the party in control of it failed to take reasonable
steps to preserve it. The court may “order measures” to cure the
harm caused to the other party. Can the court enter an “adverse
inference” order; that is, tell the jury that it must presume that the lost information would be unfavorable to the party that lost the ESI?
Can it enter “merits” sanctions? Only if the party who lost the ESI
acted with intent to deprive the other party of the ESI. The court
also may enter a default against the defendant when her conduct
was in bad faith.