Discovery

Question 1

When may qualified work product be subject to discovery?

Answer 1

When the party seeking discovery shows a substantial need and undue hardship in obtaining the information through alternative means

Question 2

What is the work product doctrine?

Answer 2

Materials prepared in anticipation of litigation are protected from discovery

Question 3

What type of work product is “absolute”?

Answer 3

Opinion work product

Question 4

What is the rule governing the scope of discovery?

Answer 4

Parties may seek discovery as to any non privileged, relevant information that is proportional to the needs of the case. The cost of discovery is also considered.

Question 5

What is the timeline for providing initial required disclosures?

Answer 5

Disclosures must be made within 14 days of the Rule 26(f) conference

Question 6

What must be included in a party’s initial required disclosures?

Answer 6

Identity of any persons w/ discoverable information that the party may use to support their claims/defenses, any documents or tangible items the party may use to support their claims/defenses, a computation of damages sought by the party supported by documentation, and information as to any insurance which might cover all or part of a judgment in a case

Question 7

What is the penalty for failure to make initial required disclosures or disclosures about an expert witness?

Answer 7

A party may not use the information/expert, unless the failure to disclose was substantially justified or harmless

Question 8

When may a party move for a protective order?

Answer 8

When a discovery request would subject them to undue burden/expense, embarrassment, or annoyance.

Question 9

What are the procedural steps for a party seeking a motion to compel?

Answer 9

The party files the motion to compel with the court along with a request for attorney’s fees and expenses.

Question 10

When may a court impose merits sanctions on a party in the context of discovery?

Answer 10

When the party has completely failed to respond to discovery requests, or when the party has violated a motion to compel.

Question 10

When may parties seek discovery from each other?

Answer 10

After the Rule 26(f) conference, or 21 days after service of process for requests for production.

Question 11

What information must a party disclose regarding expert witnesses?

Answer 11

For experts who will testify at trial, a party must disclose their identity and written report, including expert opinions, the bases for the opinions, the facts used to form the opinions, the expert’s qualifications, and how much the expert is being paid.

Question 12

What information is not included in a party’s duty to disclose information regarding experts?

Answer 12

Drafts of the expert report or communications regarding the expert report (opinion work product) EXCEPT communications regarding payment of the expert.

Information as to consulting expert witnesses, unless “exceptional circumstances” make it impracticable to get the information elsewhere.

Question 13

For what purposes may depositions be used at trial?

Answer 13

To impeach witnesses, or for any purpose if the deponent is the opposing party or is unavailable for trial.

Question 14

What must a party show to get a motion to compel a party to submit to a medical exam?

Answer 14

That the person’s health is an actual controversy, and that there is good cause.

Question 15

What is the rule regarding discovery of the opinions of consulting experts?

Answer 15

A party is not required to disclose the opinions of an expert they hired in preparation for litigation but do not plan to call as a witness.

Question 16

What are the general duties on the parties associated with discovery concerning the disclosure of information?

Answer 16

Parties have a duty to supplement discovery when additional information comes to light that make disclosures/responses incorrect or incomplete.

Parties must preserve discoverable information in anticipation of litigation.

If a party inadvertently discloses information, they must promptly notify the other party and that party must destroy or return the evidence.

Question 17

What is required for notice or a subpoena on a corporation of a deposition?

Answer 17

Notice/subpoena must describe facts a party wants to discover w/ reasonable particularity, so the organization can designate a person to testify

Question 18

When may a party produce documents in response to an interrogatory?

Answer 18

When the answer to the interrogatory is contained in business records, and determining the answer would be equally burdensome for either party