Discovery Flashcards
What are initial required disclosure and timing
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
Types of Initial Disclosures
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
Penalty for Failure to disclose initial disclosures
The party that failed to disclose cannot use the undisclosed material in the case unless failure to disclose was substantially justified or harmless
Disclosure of Expert Testimony
At a time directed by the court, each party must disclose the expert witness who may provide testimony at trial - Opinion Experts
What are Consulting Experts
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
Contents of Expert Disclosure
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
Deposition of Expert Witness
After disclosure of expert witnesses, the parties may depose the expert (best to get a subpoena)
Required Pretrial Disclosures
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
Types of Discovery Tools
- Depositions
- Interrogatories
- Request to Produce
- Medical Exams
- Requests for Admissions
Timing for Discovery
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.
What is a Deposition
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
Notice of Deposition
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
Subpoena Duces Tecum
This requires a deponent to bring requested materials to the deposition
Limits on Deposition of a Non-Party
Unless a non-party agrees, the farthest she can be required to travel is 100 miles from where she resides or is employed
Depositions of Organizations
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
Limits on Depositions
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
Use of Depositions
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
What are interrogatories
Interrogatories are written questions to be answered in writing under oath
Restrictions on Interrogatories and Timing
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
Business Record Production (interrogatories)
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
What is a request to produce
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)
Timing for Request to Produce
The responding party must respond to the request in writing within 30 days of service, stating the material will be produced or asserting objections
Medical Examinations
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
Copy of Medical Exam Report
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.
Requests for Admissions
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.
Requests for Admissions Timing
The responding party must respond in writing within 30 days of service
Discovery Signature Requirement
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
Duty to Supplement
If new facts come to light later that makes a disclosure incomplete or incorrect, the party must supplement her response
Scope of Discovery
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.
What is work product
Work product is material prepared in anticipation of litigation (it need not be generated by a lawyer)
Opinion Work Product
Work product that consists of mental impressions, conclusions, opinions, or legal theories of the disclosing party
This has absolute protection and cannot be discovered
Qualified Work Product
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
Discovery of a Party’s Own Statements
Notwithstanding work product, a party has a right to demand discovery of any previous statement that she made regarding the case
Asserting Privilege of Work Product
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
Inadvertent Disclosure
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
Protective Order
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
What if a party gives a partial response
if a party responds but fails to answer all questions, she may be compelled to comply by court order
What if a party fails to respond
If a party fails to respond or attend depositions, she will be subject to various sanctions plus costs
Certification for Sanctions
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)
Sanctions for Partial Response
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
Sanctions for No Response
If a party fails to respond, the court can enter merits sanctions plus costs (no need for an order to compel)
Merit Sanctions
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
Litigation Hold for Discovery
When litigation is reasonably anticipated, the parties must preserve discoverable material
ESI Lost
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
