Discovery Flashcards
What is discovery?
The phase of litigation in which the parties find out what the other parties and witnesses know
What are the initial required disclosures?
- Identities of persons with discoverable information the the party may use to support her claims or defenses
- Documents and things that the party may use to support her claims or defenses WITHIN THE PARTY’S CUSTODY AND CONTROL
When must discovery be made available?
Within 14 days of Rule 26(f) conference unless a court order or stipulation of parties says otherwise
What are the required disclosures about an expert witness?
Each party must identify expert witnesses who may provide testimony at trial
This is distinguished from a consulting esxpert, which is not discoverable absent exceptional circumstances
What must EW written report must include?
Opinions EW will express
Bases for opinions
Facts used to form the opinions
EW’s qualifications
How much the EW is being paid
What happens iff party fails to disclose EW material?
EW cannot be used unless the failure was justified or harmless
Who may be deposed?
Both parties and nonparties
How to “serve” deposition?
A party does not need to be served with a subpoena—a notice of dep. is enough. However, a nonparty must be served with a subpoena
How may depositions be used at trial?
To impeach deponent
For any purpose if deponent is an adverse party or
For any purpose if unavailable or absent at trial
What are interrogatories?
Written questions to be answered in writing under oath
Who can an interrogatory be sent to?
ONLY PARTIES< not nonparties!
When must interrogatories be answered and to what extent?
Within 30 days; based upon information reasonably available
If the answers to interrogatories can be found in business records and the burden is 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
What is the rule for producing medical exam (physical or mental)
A court order is required and requesting party must show:
- health is in actual controversy
- good cause
Standard for Request for Admission
If party fails to deny a proper request, the matter is deemed admitted
Is signature required for discovery?
Parties sign substantive answers to discovery under oath
Standard for Scope of Discovery
A party can discover anything that is relevant to a claim or defense and proportional to the needs of the case
Work Product Protection
Work product, i.e. material prepared in anticipation of litigation, is protected
Can work product be discovered?
Sometimes—if requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way. This is called “qualified work product”. However, OPINION work product cannot be discovered.
How to assert privilege/work product?
Privilege log, listing materials protected by date, author, recipient, and privilege or protection claimed
If the responding party thinks a discovery request subjects her to annoyance, embarassment, undue burden, or expense, she can move for a protective order to certify that she tried in good faith to resolve the issue without court involvement.
If the court agrees, how may it proceed?
- Deny discovery
- Limit discovery
- Permit discovery on specified ters
