Discovery

Question 1

What is discovery?

Answer 1

The phase of litigation in which the parties find out what the other parties and witnesses know

Question 2

What are the initial required disclosures?

Answer 2

1. Identities of persons with discoverable information the the party may use to support her claims or defenses
2. Documents and things that the party may use to support her claims or defenses WITHIN THE PARTY’S CUSTODY AND CONTROL

Question 3

When must discovery be made available?

Answer 3

Within 14 days of Rule 26(f) conference unless a court order or stipulation of parties says otherwise

Question 4

What are the required disclosures about an expert witness?

Answer 4

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

Question 5

What must EW written report must include?

Answer 5

Opinions EW will express

Bases for opinions

Facts used to form the opinions

EW’s qualifications

How much the EW is being paid

Question 6

What happens iff party fails to disclose EW material?

Answer 6

EW cannot be used unless the failure was justified or harmless

Question 7

Who may be deposed?

Answer 7

Both parties and nonparties

Question 8

How to “serve” deposition?

Answer 8

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

Question 9

How may depositions be used at trial?

Answer 9

To impeach deponent

For any purpose if deponent is an adverse party or

For any purpose if unavailable or absent at trial

Question 10

What are interrogatories?

Answer 10

Written questions to be answered in writing under oath

Question 11

Who can an interrogatory be sent to?

Answer 11

ONLY PARTIES< not nonparties!

Question 12

When must interrogatories be answered and to what extent?

Answer 12

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

Question 13

What is a request to produce?

Answer 13

A request to produce asks a party to make available for review and copying documents or things

Question 14

What is the rule for producing medical exam (physical or mental)

Answer 14

A court order is required and requesting party must show:

1. health is in actual controversy
2. good cause

Question 15

Standard for Request for Admission

Answer 15

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

Question 16

Is signature required for discovery?

Answer 16

Parties sign substantive answers to discovery under oath

Question 17

Standard for Scope of Discovery

Answer 17

A party can discover anything that is relevant to a claim or defense and proportional to the needs of the case

Question 18

Work Product Protection

Answer 18

Work product, i.e. material prepared in anticipation of litigation, is protected

Question 19

Can work product be discovered?

Answer 19

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.

Question 20

How to assert privilege/work product?

Answer 20

Privilege log, listing materials protected by date, author, recipient, and privilege or protection claimed

Question 21

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?

Answer 21

1. Deny discovery
2. Limit discovery
3. Permit discovery on specified ters