Discovery

Question 1

discovery

Answer 1

provides litigants with an opportunity to obtain and review all of the pertinent evidence prior to trial

Question 2

pre-trial conference

Answer 2

Rule 26(f) requires parties to meet and discuss the likely content of discovery in the case and draft a discovery plan.

The plan must be submitted within 14 days of the conference.

The conference must be held at least 21 days before a Rule 16(b) conference or order

Question 3

Conference and Scheduling Order

Answer 3

After a Rule 26(f) conference has been held, the court may order the parties to confer again to discuss litigation, an efficient way to proceed, and possibilities of settlement

Rule 16(b) requires the court to issue a scheduling order. The scheduling order will dictate the schedule of how litigation will proceed, and specify rules pertaining to discovery.

Question 4

Discovery- mandatory disclosures

Answer 4

what you get without asking.

3 kinds:
-initial disclosure
-expert disclosure
-pretrial disclosure

Question 5

Initial disclosure

Answer 5

Within 14 days after a Rule 26(f) conference, must provide to all other parties:

1. Witnesses:
   -The name/contact information of any witness that a party may use to support a claim or defense;
2. Documents:
   -Copies (or descriptions) of documents, electronically stored information (ESI), and tangible objects that a party may use to support its claim or defense;
3. Damages:
   -Computation of damages sought and supporting documents; and
4. Insurance Agreements:
   -Copies of any insurance agreement that may require the insurer to pay.

*Essentially you have to turn over anything you plan to use at trial. This is a continuing obligation (if you find something 6 months in, you have to tell the other side without them asking)

Question 6

Expert disclosures

Answer 6

At least 90 days before trial, if a party is planning to rely on expert testimony, they must:

1. disclose the name/contact info of the expert
2. their final report,
3. which must include the qualifications, opinion, and information relied on by the expert.

Question 7

Pretrial disclosure

Answer 7

At least 30 days before trial, a party must provide to all other parties:

1. List of witnesses expected to call at trial;
2. Witnesses that may be called if the need arises;
3. List of witnesses whose testimony will be given through deposition or transcript; and
4. List of documents or physical evidence they expect to present.

Question 8

What is discoverable?

Answer 8

in general, a party is entitled to demand the discovery of matter that is:

1. not privileged
2. relevant (Relevant if likely to make any fact in dispute more or less likely to be true, regardless of whether the information would be admissible at trial.); and
3. proportional to the needs of the case
   -factors considered: Whether the burden or expense of the proposed discovery outweighs its likely benefit

Question 9

what is not discoverable?

Answer 9

1. work product:
   -Even if relevant, information may be work product protected
   WP = Document or tangible object created by a party or their attorney in anticipation of litigation (post-incident description of events or records of communications with witnesses).
   –Exceptions: WP discoverable in 2 situations:
   (1) the materials are otherwise discoverable.
   (1)Can get WP if the party has a substantial need and can’t get it without undue hardship.
2. Privileged matter
3. irrelevant

Question 10

methods of discovery

Answer 10

1. interrogatories
2. requests for admission
3. requests for production
4. requests for mental or physical examination
5. depositions
6. subpoenas

Question 11

interrogatories

Answer 11

questions submitted in writing to the other party.
-can seek facts or contentions

*up to 25 questions per party

Question 12

responding to interrogatories

Answer 12

*30 days to respond

-must be in writing, and
-include objections with specificity

Question 13

requests for admissions

Answer 13

request to admit truth or fact.
-if admitted, it is established for trial

*30 days to respond
-The responding party can object to questions as outside the scope of discovery, but otherwise need to admit, deny, or state they lack info to admit/deny

Question 14

requests for production

Answer 14

request for documents, tangible items, or access to evidence
-if documents = must be labeled and maintained as in the usual course of business
-if electronically stored info = can be how normally maintained or in a usable form (as in searchable)

*30 days to respond, may object as outside the scope of discovery

Question 15

requests for mental or physical examination

Answer 15

used only when a party’s mental or physical state is at issue.

-Available only upon court order. When ordered, the party must submit to an examination. The examiner must prepare a report detailing the exam and it is available to any requesting party.

Question 16

Depositions

Answer 16

used to ask questions of witnesses

*may depose up to *10 witnesses, but can get a court order for more.

-cannot be conducted until after pre-trial conference.

Question 17

depositions to perpetuate testimony

Answer 17

In rare cases, a party may wish to depose a witness before a lawsuit is even filed.

-are available only if all expected opposing parties are provided an opportunity to be present at the deposition and ask questions

Question 18

can depositions be used at a hearing or trial?

Answer 18

yes, as long as the opposing party had a reasonable opportunity to be present and these rules are followed:

-The deposition of a party/party’s designee can be used for any purpose.

-The deposition of a non-party can be used:
–to impeach the deponent, or
–if the deponent is unavailable, (dead, infirmity, or disappearance) the deposition can be used for any purpose.

Question 19

Subpoenas

Answer 19

discovery from non-parties

Two types:

1. Subpoenas duces tecum – demand for documents.
2. Subpoenas ad testificatum – demand for testimony.
   —The person served may object as outside the scope of discovery or if it requires the person to travel >100 miles from home or work.

Question 20

enforcement of discovery: if the party sort of complies to a request

Answer 20

file a motion to compel:
-made after the movant has in good faith attempted to confer with the resistor.

-if granted: the movant gets fees/expenses for the motion

-if denied: the non-movant may get their fees paid

Question 21

enforcement of discovery: if, after motion to compel, they still don’t comply

Answer 21

the court can award sanctions.

-Court order declaring facts sought are established in favor of the requesting party (the judge at trial can tell the jury that the resisting side didn’t answer these questions of fact, so you can just infer that it favors the other side) ;

-Court order prohibiting the disobedient party from presenting certain claims or defenses;

-Stay or dismissal of entire action; or

-Order of contempt.

Question 22

enforcement of discovery: if party doesn’t comply at all

Answer 22

the non resisting party can immediately seek all sanctions except an order of contempt.