Discovery Flashcards
What can be discovered, generally?
Unless otherwise limited by court order, parties may obtain discovery regarding any matter not privileged that is RELEVANT to the subject matter of the action, whether a claim or defense
When is information discoverable despite being inadmissible?
Discoverable even though admissible at trial as long as it appears reasonably calculated to lead to the discovery of admissible evidence.
What information can be sought?
Discovery regarding existence, description, nature, custody, condition, and location of any books, documents, or other intangible things, as well as IDs of any persons having knowledge of any discoverable matter
What limitations can courts put on discovery?
May limit if court finds:
-unreasonably cumulative or duplicative, obtainable from more convenient source
-party seeking disco had ample opportunity by disco in the action to obtain the info sought
-disco is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties resources, and importance of issues at stake
Major privileges blocking disco?
5th Amendment self-incrimination prohibition, attorney-client privilege, physician-patient privilege, and privileges protecting confidential communication between spouses and exemption one spouse from testifying against the other
When may a party obtain disco of trial preparation materials?
Upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
What expert information is discoverable?
Through INTs, party may discover the ID of each expert, subject matter on which he is expected to testify, and the substance of the facts and opinions to which the expert is expected to testify with a summary of the grounds for each opinion.
As to experts not expected to testify, party may discover facts known or opinions held by an expert who has been retained or specially employed in anticipation of litigation only upon showing of exceptional circumstances under which it is impracticable for the party seeking disco to obtain facts or opinions on the same subject by other means.
When may court order a protective order?
Upon motion from whom disco is sought, accompanied by certification movant has in good faith attempted to resolve dispute with other parties, and for good cause shown, in order to protect party from annoyance/embarrassment/oppression or undue burden or expense.
What are the duties to supplement discovery?
-With regard to ID/location of those with knowledge of discoverable info, IDs of experts expected to be called to trial, subject matter of such experts, and substance of expert testimony
-to amend/supplement prior answer if he discovers its incomplete or incorrect and the additional info has not been made known to other party during disco. or in writing
Depositions, generally
-No limit to number taken
-Timing can occur any time after commencement, but not before expiration of time for D to respond unless for good cause shown they’ve been served with notice and the person sought to be deposed is leaving VA/U.S. and sets forth facts to support that
-Party depos must take place in the city/county where action is pending, adjacent, or where agreed to by parties, or court designated for good cause
-nonparty witnesses have to be taken in place where reside/employed/PPB; at a place where agreed; at a place court designates for good cause
-depos outside VA must be taken on notice of person authorized to administer oaths in place where held; by person authorized by court in this action to administer oath; pursuant to a letter rogatory
How depositions may be used?
At any hearing/trial, against any party present or represented at the deposition for any of following purposes:
-support/opposing equitable claim
-contradicting/impeaching testimony
-deposition of a party may be used by adverse party for any purpose
-deposition of any witness can be used if court finds something specific, like the witness is dead, >100 miles away, imprisoned, or in interest of justice
Can depositions be taken upon written questions?
Yes, attorney serves upon every party the questions, redirect/cross questions can be served in response within 21 days; then questions are sent to officer who will take the depo, he does it, records it, and files it
How many interrogatories are allowed?
30, unless for good cause shown more
When can interrogatories be taken?
-Without leave of court, P can be served after commencement of action; any other party, after service of the complaint
-P gets 21 days to answer/object, D gets 28 days after service of complaint
How to answer interrogatories?
Fully unless objected to, reasons for objection stated, answers signed by answerer, objections signed by attorney making them.
