Discovery

Question 1

Initial Required Disclosures - Basic Concept

Answer 1

• info that each party must give to other parties (even though the other parties haven’t asked for it)
• unless court order or stipulation of the parties says otherwise, each party needs to disclose certain info w/in 14 days of the Rule 26(f) conference

Question 2

Initial Required Disclosures - List

Answer 2

• identities of persons w/ discoverable info that the party may use to support her claims or defenses
• docs + tangible things that the party may use to support her claims or defenses
• computation of relief along w/ supporting docs/ESI (electronically stored info)
• insurance coverage

Question 3

Penalty for Failure to Disclose

Answer 3

• if party fails to disclose material that was required to be disclosed, that party can’t use the undisclosed material in the case unless the failure to disclose was substantially justified or harmless

Question 4

Docs + Things - Wrinkle Re Disclosure

Answer 4

• don’t need to disclose if not in the party’s custody and control

Question 5

Required Disclosures About an Expert Witness - General Concept

Answer 5

• later in the case, at a time directed by the court, each party must identify expert witnesses who may provide testimony at trial (opinion testimony) and provide certain other disclosures noted below

Question 6

Consulting Experts

Answer 6

• DIFFERENT from expert witnesses
• happens if a party hired an expert to help w/ prepping the case, but doesn’t intend to call to testify at trial
• facts known + ops held by consulting experts are generally NOT discoverable absent “exceptional circumstances”

Question 7

Expert Witnesses - Contents of Disclosures

Answer 7

• each party must generally disclose to the other parties the identity of EW + written report prepared by EW

Question 8

EW Written Report - What Must Be Included

Answer 8

• ops that the EW will express
• bases for the ops
• facts used to form the ops
• EW’s qualifications AND
• how much the EW is being paid
• BUT earlier drafts of the EW report and communications between the lawyer + the EW are work product

Question 9

Deposition of EW

Answer 9

• after the required EW disclosure, party may take the deposition of the EW
• best practice is for that party to subpoena the EW to compel attendance (w/o subpoena, expert may not show up even if parties agreed to the deposition)
• deposing party ordinarily will bear the cost of the EW’s deposition (court will set per-hour fee)

Question 10

EW - Failure to Disclose

Answer 10

• if party fails to disclose material that was required to be disclosed, can’t use the EW in the case unless the failure was justified or harmless

Question 11

Required Pre-Trial Disclosures

Answer 11

• no later than 30 days before trial, parties must give detailed info about their trial evidence, including:
  -> identity of witnesses who will testify live or by deposition
  -> docs, ESI and other things they intend to introduce at trial

Question 12

Discovery Tools

Answer 12

• once initial disclosures made, parties can request info from one another
• BUT, assuming no court order or stipulation provides otherwise, the parties can’t send discovery requests until after the Rule 26(f) conference
• generally, the cost of responding to discovery is borne by the responding party

Question 13

Exception re Rule 26(f) Conference and Timing of Discovery Requests

Answer 13

• requests to produce can be served earlier (once 21 days has passed since service of process)
  -> treated as though it was served at the Rule 26(F) conference

Question 14

Depositions - General Concept

Answer 14

• person gives live testimony in response to q’s by counsel or pro se parties
• q’s usually oral, but can be written (if written, they’re read by a court reporter)
• deponent testifies under oath
• recorded by sound or video or stenographically so that a transcript can be made
• both parties + nonparties can be deposed
• deponent not required to review records prior to depo, testimony is from present recollection

Question 15

Depositions - Notice + Subpoenas

Answer 15

• a party does NOT need to be served w/ subpoena, just need notice of depo to compel appearance
• nonparty must be served w/ subpoena (otherwise not compelled to attend)
• if noticing party fails to provide notice + deponent fails to show, noticing party may be liable to others for costs

Question 16

Subpoena Duces Tecum

Answer 16

• requires deponent to bring requested materials to the deposition

Question 17

Limit on Deposition of Nonparty

Answer 17

• unless a nonparty agrees otherwise, the farthest she can be required to travel is 100 miles from where the nonparty resides or is employed

Question 18

Deposition of Organization

Answer 18

• when the party is suing an org, she may “notice” a deposition of an org, describing the facts she wants to discover in the depo
• org must then designate a person(s) to testify on that matter

Question 19

Limits on Depositions

Answer 19

• a party cannot take more than 10 depositions or depose the same person twice w/o court approval or stipulation
• depositions can’t exceed one day of seven hours unless the court orders or parties stipulate otherwise

Question 20

Use of Depositions

Answer 20

Subject to rules of evidence, depos may be used at trial:
- to impeach the deponent;
- for any purpose if the deponent is an adverse party OR
- for any purpose if the deponent (regardless of whether a party) is unavailable for trial (ex: illness or out of country), unless that absence was procured by the party seeking to introduce the evidence

Question 21

Interrogatories - Definition

Answer 21

• questions to be answered in writing under oath

Question 22

Interrogatories - Reminders

Answer 22

• sent only to parties, never nonparties
• max number, absent court order or stipulation, is 25 (includes subparts)
• must be answered w/in 30 days of their service

Question 23

Interrogatories - Answering

Answer 23

• must answer based on info reasonably available
• if answers can be found in business records + burden of finding answer would be about the same for either party, the responding party can allow requesting party to have access to the records

Question 24

Contention Interrogatories

Answer 24

• interrogatories that inquire about legal contentions
• are permitted