Discovery

Question 1

What are initial required disclosure and timing

Answer 1

initial required disclosures are information that each party must give the other party even through the other party has not requested the information

Unless a court order or stipulation states otherwise, initial disclosures must be made within 14 days of the Rule 26(f) conference

Question 2

Types of Initial Disclosures

Answer 2

1) the names, addresses, and telephone numbers of individuals with discoverable information that the disclosing party may use to supports its claims or defenses, unless solely for impeachment purposes

2) copies or descriptions of documents, ESI, and tangible tings that are in the disclosing party’s possession or control and that the disclosing party may use to support its claims or defenses, unless solely for impeachment purposes

3) A computation of damages claimed by the disclosing party and copies of materials upon which the computation is based

4) copies of insurance agreements under which an insurer may be liable for all or part of any judgment that might be entered

Question 3

Penalty for Failure to disclose initial disclosures

Answer 3

The party that failed to disclose cannot use the undisclosed material in the case unless failure to disclose was substantially justified or harmless

Question 4

Disclosure of Expert Testimony

Answer 4

At a time directed by the court, each party must disclose the expert witness who may provide testimony at trial - Opinion Experts

Question 5

What are Consulting Experts

Answer 5

One who is hired to help with preparing the case and who is not going to be called to testify at trial

Facts known and opinions held by consulting experts are generally not discoverable absent exceptional circumstances

Question 6

Contents of Expert Disclosure

Answer 6

An expert witness disclosure must disclose the identity of and written report prepared by the expert witness

The report must include:
1) Opinions the expert will express
2) the basis for the opinions
3) the facts used to form the opinions
4) the expert’s qualifications
5) how much the expert is being paid

NOTE: preliminary reports and discussions between the expert and attorney are protected by work product

Failure to disclose - if a party fails to disclose an expert, the expert cannot testify in the case unless the failure was justified or harmless

Question 7

Deposition of Expert Witness

Answer 7

After disclosure of expert witnesses, the parties may depose the expert (best to get a subpoena)

Question 8

Required Pretrial Disclosures

Answer 8

No later than 30 days before trial, the parties must disclose the identities of witnesses who may testify live or by deposition, documents and ESI, and other things they intend to introduce at trial

Question 9

Types of Discovery Tools

Answer 9

• Depositions
• Interrogatories
• Request to Produce
• Medical Exams
• Requests for Admissions

Question 10

Timing for Discovery

Answer 10

Unless a court order or stipulation states otherwise, parties cannot send discovery requests until after the Rule 26(f) conference

EXCEPTION: requests to produce can be served once 21 days have passed since service of process, but it is treated as though it was served at the Rule 26(f) conference.

Question 11

What is a Deposition

Answer 11

A deposition is live testimony in response to questions by counsel in which the deponent testifies under oath

Parties and non-parties may be deposed

Question 12

Notice of Deposition

Answer 12

Parties - a party does not need to be served with a subpoena - notice of deposition is sufficient

Non-Parties - a non-party must be served with a subpoena or else she is not compelled to attend

Question 13

Subpoena Duces Tecum

Answer 13

This requires a deponent to bring requested materials to the deposition

Question 14

Limits on Deposition of a Non-Party

Answer 14

Unless a non-party agrees, the farthest she can be required to travel is 100 miles from where she resides or is employed

Question 15

Depositions of Organizations

Answer 15

A party suing an organization may notice a deposition of an organization and describe the facts she wants to discover in the deposition

The organization must then designate a person to testify on the matter

Question 16

Limits on Depositions

Answer 16

1) a party cannot take more than 10 depositions or depose the same person twice without court approval or stipulation

2) Depositions cannot exceed one day of seven hours without court approval or stipulation

Question 17

Use of Depositions

Answer 17

Subject to the rules of evidence, depositions may be used at trial:
1) to impeach the deponent
2) for any purpose if the deponent is an adverse party
3) for any purpose if the deponent is unavailable for trial unless that absence was procured by the party seeking to introduce the evidence

Question 18

What are interrogatories

Answer 18

Interrogatories are written questions to be answered in writing under oath

Question 19

Restrictions on Interrogatories and Timing

Answer 19

Restrictions:
- they may only be sent to parties
- a party may not serve more than 25 questions, including subparts
- a party must answer interrogatories based upon information reasonably available
- interrogatories that inquire about legal contentions are permitted (contention interrogatories)

TIMING:
- Interrogatories are to be answered within 30 days from their service

Question 20

Business Record Production (interrogatories)

Answer 20

If an answer to interrogatories can be found in business records and the burden of finding the answer would be about the same for either party, the responding party can allow the requesting party to have access to the records

Question 21

What is a request to produce

Answer 21

A request to produce asks a party to make available for review and copying documents or things, or to permit entry on designated property to inspect or measure

ESI - must be produced in the form that the requesting party specified (responding party may object)

Question 22

Timing for Request to Produce

Answer 22

The responding party must respond to the request in writing within 30 days of service, stating the material will be produced or asserting objections

Question 23

Medical Examinations

Answer 23

A court order is required to compel a party (or a person within a party’s control) to subject to a medical exam

The requesting party must show:
1) the person’s head is in actual controversy
2) good cause

If granted, the requesting party may choose the medical professional to perform the exam

Question 24

Copy of Medical Exam Report

Answer 24

The person undergoing the medical exam can obtain a copy of the report

However, if the does so, she must on request produce all medical records by her own doctor about the same medical condition. ADDITIONALLY, she waives any doctor-patient privilege with her doctor regarding the condition.

Question 25

Requests for Admissions

Answer 25

A party may serve on the other party a request for admissions as to the truth or genuine of any matter or document in the request

The matters will be considered admitted unless the parties denies, objects, or states that she made a reasonable inquiry and cannot find enough information from which to admit or deny.

Question 26

Requests for Admissions Timing

Answer 26

The responding party must respond in writing within 30 days of service

Question 27

Discovery Signature Requirement

Answer 27

The parties sign substantive answers to discovery under oath (NOT RULE 11)

The signature rule requires every request and response be signed by counsel certifying it is:
1) warranted
2) not interposed for an improper purpose
3) not unduly burdensome

Question 28

Duty to Supplement

Answer 28

If new facts come to light later that makes a disclosure incomplete or incorrect, the party must supplement her response

Question 29

Scope of Discovery

Answer 29

Discovery may be had of any non privileged matter that is relevant to a claims or defense and proportional to the needs of the case. Information need not be admissible to be discoverable.

Question 30

What is work product

Answer 30

Work product is material prepared in anticipation of litigation (it need not be generated by a lawyer)

Question 31

Opinion Work Product

Answer 31

Work product that consists of mental impressions, conclusions, opinions, or legal theories of the disclosing party

This has absolute protection and cannot be discovered

Question 32

Qualified Work Product

Answer 32

Work product, other than opinion work product, may be discovered if the requesting party can show:
1) a substantial need; and
2) an undue hardship in obtaining the materials in an alternative way

Question 33

Discovery of a Party’s Own Statements

Answer 33

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

Question 34

Asserting Privilege of Work Product

Answer 34

If a party withholds discovery or seeks a protective order based on privilege or work product, she must claim protection expressly and describe the materials in detail

this is done in a PRIVILEGE LOG

The description must be in enough detail to allow the judge to determine whether the material is protected

Question 35

Inadvertent Disclosure

Answer 35

If a party inadvertently produces privileged or protected materials, he must notify the other party promptly

The other party must then return or destroy the material pending a decision by the court about whether there has been a waiver

Question 36

Protective Order

Answer 36

If a party thinks a discovery request subjects her to annoyance, embarrassment, undue burden or expense, she can move for a protective order

The moving party must certify that she tried in good faith to resolve the issue without court involvement

The court can (1) deny discovery, (2) limit discovery, (3) permit discovery on specified terms

Question 37

What if a party gives a partial response

Answer 37

if a party responds but fails to answer all questions, she may be compelled to comply by court order

Question 38

What if a party fails to respond

Answer 38

If a party fails to respond or attend depositions, she will be subject to various sanctions plus costs

Question 39

Certification for Sanctions

Answer 39

A party moving for sanctions for discovery issues must certify that she tried in good faith to get that information with court involvement (meet and confer)

Question 40

Sanctions for Partial Response

Answer 40

if a party makes a partial response, sanctions are a two step process
1) Motion to Compel - the requesting party moves for an order compelling production of the unanswered questions, plus the costs of bringing the motion
2) Violation of Order - if the motion to compel is granted and then not complied with, the court can enter merits sanctions along with costs and attorney’s fees for bring the motion

CONTEMPT - the violating party can also be held in contempt, unless the party is refusing to submit to a medical exam

Question 41

Sanctions for No Response

Answer 41

If a party fails to respond, the court can enter merits sanctions plus costs (no need for an order to compel)

Question 42

Merit Sanctions

Answer 42

The judge is free to choose between the following merit sanctions:
- establishment order - establishes a fact as true
- strike pleadings of violating party (as to issues regarding the discovery)
- disallow evidence from the violating party (as to issues regarding the discovery)
BAD FAITH SANCTIONS
- dismiss plaintiff’s case
- enter default judgment against defendant

Question 43

Litigation Hold for Discovery

Answer 43

When litigation is reasonably anticipated, the parties must preserve discoverable material

Question 44

ESI Lost

Answer 44

If ESI is truly lost because the party in control failed to take reasonable steps to preserve it, the court may order measures to cure the harm caused to the other party

ADVERSE INFERENCE: This includes an adverse inference which tells the jury they must presume the lost information would be unfavorable to that party

Merit sanctions - the court can also enter merit sanctions only if the party that lost the ESI acted with intent to deprive the other party of the ESI