Discovery Flashcards
Discovery Overview and Process
OVERVIEW
Discovery involves a court-mandated process of acquiring and producing information from parties and non-party witnesses
Conducted by parties—court helps the process move forward, but does not actively participate in the exchange of information
PROCESS
1) Initiating discovery—parties must:
Meet & confer—discuss claims and develop proposed discovery plan
Initial disclosures—disclose discoverable information, insurance, and damages information
Scheduling—court and parties will develop scheduling order with deadlines for completing discovery
2) Conducting discovery—depositions, requests for production, interrogatories, requests for admission, etc
Conferences
Scheduling conference—conference at or after which judge issues scheduling order setting deadlines for filings of pleadings, joinder, amendments, and discovery deadlines
Mandatory meet & confer—parties must meet at least 21 days before the scheduling conference to:
1) Discuss claims, defenses, and settlement; and
2) Develop a plan for discovery
Must present written discovery plan to court within 14 days of the meet and confer
Pretrial conference—conference before the court; held as needed to move case forward and encourage settlement
> Issues not included in the pretrial conference order are generally excluded at trial
> Order may only be modified to prevent manifest injustice
Scope of Discovery
Materials are discoverable if:
1) Non-privileged
2) Relevant to a claim
3) “Proportional” to the needs of the case; factors to determine:
> Amount in controversy
> Importance of issues at stake in the action
> Resources of parties involved
> Importance of discovery in resolving issues at stake
> Whether burden or expense of proposed discovery outweighs its likely benefit
> Parties’ relative access to the information
Mandatory Disclosures
Initial disclosures—parties must disclose:
1) Sources of discoverable information—parties must disclose witnesses and documents that they may use to support their claims or defenses
2) Damages—computation of damages claimed
3) Insurance—any insurance agreement that may be used to satisfy all or part of a judgment
Timing—within 14 days of parties’ mandatory meet and confer
Parties served or joined later must make initial disclosures within 30 days of being served or joined
Duty to supplement—parties must supplement their mandatory disclosures if the produced information becomes incomplete or incorrect
Expert disclosures—at least 90 days before trial, parties must identify experts who may be used at trial and produce a report containing experts’ opinion, data used, qualifications, etc.
Pretrial disclosures—parties must give detailed information about evidence to be used at trial at least 30 days before trial
E.g., documents to be used as evidence, identity of witnesses to testify, etc.
Interrogatories, Requests for Production/Admission, Examaniations
INTERROGATORIES
Written questions proposed by one party to an opposing party
Typically used to ask about identity of documents and people who may have information related to claims and defenses
Deadline for response is 30 days
RFPs
Written requests to a party to make documents, electronic documents, or other things within the party’s control available to review, inspect, and/or copy
Deadline for response is 30 days after RFP served
Non-party may be compelled to produce material under subpoena
RFAs
requests to parties to admit the truth of discoverable information
If a party has admitted information, it does not have to be litigated at trial; opposing party can show jury the admission
Deadline for response is 30 days—responding party can admit, deny, or state that it lacks knowledge
PHYSICAL/MENTAL EXAMINATION
Only available through court order where a person’s physical or mental condition is an issue in the case (e.g., tort involving injury)
If allowed, doctor-patient confidentiality privilege disappears
Depositions
Oral proceedings in which an attorney may examine any person under oath
Testimony is sworn and subject to penalties for perjury
Parties—notice of deposition will compel attendance
Non-parties—may be deposed, but must be subpoenaed
Documents—subpoena duces tecum used to compel a deponent to bring documents to the deposition
May cover any issue within the scope of discovery
Objections—deponent’s counsel may object to questions, but deponent is still required to answer
> Exception—if an objection is based on privilege (i.e., answering would reveal privileged information), counsel can instruct deponent not to answer
Limited to one day for seven hours; must get court approval to get more than 10 depositions or depose same person more than twice
Privileged Material
Otherwise discoverable information need not be disclosed if a privilege applies
Attorney-client privilege
> Protects information exchanged confidentially between attorney and client
> Requirement—to invoke the attorney-client privilege, a party must demonstrate the communication was:
1) Made between client and counsel;
2) Intended to be and was, in fact, kept confidential; and
3) Was made for the purpose of obtaining or providing legal advice
Work product privilege
> Protects material prepared by or for an attorney in anticipation of litigation
> Rule—items prepared in anticipation of litigation or for trial are not discoverable unless the opposing party shows:
1) Substantial need for material; and
2) Inability, without undue hardship, to obtain the substantial equivalent of materials by other means
Protective Orders
Court order limiting discovery of material; sought by party seeking to prevent disclosure
Usually used to prevent disclosure of material that is privileged, highly embarrassing, trade secret, and/or clearly outside scope of appropriate discovery
The lack of proportionality of the discovery also may be raised
Moving party must certify they have or have attempted to meet and confer with affected parties to resolve dispute
Standard—court may issue protective order for good cause
Order can limit, condition, delay, or bar discovery of affected information
Motion to Compel
a party may move for an order compelling disclosure or discovery of requested material
Often arises when discoveree (i.e., party holding information) claims withheld materials are privileged
Motion must certify that moving party has made a good faith attempt to obtain discovery absent court intervention
Judge will call hearing to confer with parties regarding dispute and make decision on whether material may be withheld
Discovery Sanctions
Grounds for sanctions
> court can sanction any type of failure to comply with discovery obligations or court order
> The Rules impose a duty to supplement initial disclosures, interrogatory answers, responses to document requests, and requests for admission when the produced information is incomplete or incorrect
Types of sanctions
> Partial violations
Less serious discovery violation (e.g., party makes frivolous objections in RFAs)
- Court may issue order compelling discoveree to respond to discovery requests; can also award costs to party for bringing motion to compel (including attorneys’ fees)
> Complete Violations
wholesale violation of discovery rules ; court may:
- Strike pleadings
- disallow evidence
- establish disputed or unanswered facts as true
- issue monetary sanctions
- dismiss P’s case (very serious, requires bad faith)
- enter default judgment (very serious, requires bad faith)
- hold disobedient party in contempt of court
- Motion to compel not required before moving for sanctions
