Discovery Flashcards
26(b)(1)
Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Proportionality factors 26(b)(1)
the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
Work Product
the “work product” doctrine in Fed. R. Civ. P. 26(b)(3). That subsection provides that “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative” can only be obtained in discovery if the requesting party demonstrates that she has substantial need for the materials and cannot obtain substantially equivalent information through other means without undue hardship. Rule 26(b)(3) further provides that, even where such a showing is made, the “mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative” shall be protected from disclosure. Fed. R. Civ. P. 26(b)(3)(B).
Rule 33
Interrogatories,
(1) Number. Unless otherwise stipulated or ordered by the
court, a party may serve on any other party no more than 25
written interrogatories, including all discrete subparts. Leave
to serve additional interrogatories may be granted to the ex
tent consistent with Rule 26(b)(1) and (2).
A party waives any objection to an interrogatory, or part thereof, if the party answers it voluntarily.
the work-product doctrine precludes discovery of
attorney notes or other writings made during the course or in anticipation of litigation.
the court may limit discovery that might otherwise be allowed if a request is unreasonably cumulative or duplicative
When a party makes an improper discovery request, the next step is for the parties to try to
resolve the issue amicably without involving the court. For that reason, the rules require the parties to confer in good faith to attempt to resolve any discovery disputes prior to filing a motion asking the court to compel discovery. Fed. R. Civ. P. 37(a)(1). Only after the parties confer and fail to resolve the discovery dispute may the defendant’s attorney file a motion for a protective order
The mandatory disclosure requirements do not apply to materials that a party intends to use
solely for purposes of impeachment. Answer option A is incorrect because each party is required to disclose a copy of any document in his possession, custody, or control if he may use the document to support his claims or defenses. See Fed. R. Civ. P. 26(a)(1)(A). The party must disclose such a document even if the party does not ultimately use it at trial, unless the impeachment exemption applies.
The Federal Rules of Civil Procedure enable litigants to obtain discovery from both parties and nonparties. However, not all discovery tools may be used to obtain information from nonparties.
Depositions and requests for production may be used to obtain discovery from both parties and nonparties. Fed. R. Civ. P. 30, 34. However, interrogatories and requests for admission may only be served on parties to the litigation. Fed. R. Civ. P. 33, 36.
Under Rule 33 of the Federal Rules of Civil Procedure, the person who makes the answers to the interrogatories
must sign them, and that person’s attorney should sign any objections. Fed. R. Civ. P. 33(b)(5).
In general, testimony is taken at a deposition in the same way it is taken in open court during trial or at a hearing. The main difference is how the court deals with objections. Because the court is not present during a deposition, it does not rule on objections in real time, as testimony is being taken. Rather,
parties are free to object on the record, but the deponent must still answer the question. Fed. R. Civ. P. 30(c)(1)-(2). If a party later seeks to use deposition testimony at a hearing or trial, the court will rule on the objections then in determining the testimony’s admissibility.
The Federal Rules of Civil Procedure permit each side in a litigation (all of the plaintiffs or all of the defendants) to take…. how many depos w/o leave from court?
10 depositions without leave from the court. In general these depositions may not occur until discovery officially begins. With few exceptions, discovery does not begin in an action filed in federal district court before the Rule 26(f) conference. However, if the parties do not stipulate to an early deposition, a litigant may obtain the court’s permission to depose a witness before the official start of discovery specified in Rule 26(d). Fed. R. Civ. P. 30(a)(2)(A)(iii).
If parties want to increase the number of interrogatories what must happen?
Rule 30 of the Federal Rules of Civil Procedure (FRCP) limits the parties to 25 interrogatories each, including discrete subparts, unless otherwise stipulated or ordered by the court. Fed. R. Civ. P. 33(a)(1). By order, a court may alter the limits on the number of interrogatories and depositions, as well as the length of depositions. Fed. R. Civ. P. 26(b)(2)(A). The parties’ discovery plan formulated at the Rule 26(f) conference must include, among other information, whether and what changes should be made to the discovery limits specified in the FRCP. Fed. R. Civ. P. 26(f)(3)(E).
Do the FRCP limit the number of requests for production?
The FRCP do not limit the number of requests for production that a party may serve during discovery. Fed. R. Civ. P. 34. Here, the defendant’s sole argument for refusing to respond to the plaintiff’s discovery request is that the plaintiff has exceeded the allowable number of requests for production. Because the FRCP do not have a limit, the defendant’s argument is unlikely to succeed. Therefore, the court will likely grant the plaintiff’s motion to compel.
Note that, while the FRCP do not specify a numerical limit, courts may do so by order or by local rule in a given judicial district. Fed. R. Civ. P. 26(b)(2)(A). Moreover, it is possible that a party may serve such a large number of requests for production that the court grants a protective order because the requests unduly burden the responding party or nonparty. See Fed. R. Civ. P. 26(c).
A party’s required initial disclosures must include, among other information, the names and contact information of people likely to have discoverable information that the party will use to support its case. Fed. R. Civ. P. 26(a)(1)(A). Unless a different time is set by stipulation or court order, a party must make its initial disclosures at or within 14 days of the Rule 26(f) conference. Fed. R. Civ. P. 26(a)(1)(C).
a party retains an expert solely to rebut an expert disclosed by the party’s opponent, then the party must disclose the rebuttal expert within
30 days of its opponent’s disclosure. Fed. R. Civ. P. 26(a)(2)(D)(ii).
Among other information, a party must include in its pretrial disclosures the name and contact information for each witness, identifying each witness separately as either one the party expects to present or one the party will present only if necessary. Fed. R. Civ. P. 26(a)(3)(A)(i).
In general, a lawyer may instruct a deponent not to answer a question only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to move under Rule 30(d)(3) to terminate or limit the deposition. Fed. R. Civ. P. 30(c)(2). Here, the question posed by the defendant’s lawyer seeks information about what the plaintiff’s lawyer had told her about her potential damages. The question directly seeks information about a communication between an attorney and client, which is arguably protected by attorney-client privilege. In addition, the lawyer’s thoughts about the plaintiff’s potential damages would arguably also be protected as opinion work product. Because the question seeks privileged information, the next thing the plaintiff’s lawyer should do is instruct the witness not to answer, in order to preserve the privilege.
