Discovery Flashcards
Conference (a.k.a. Discovery Planning Conference)
- 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 is held or order is issued.
Conference and Order
- After a Rule 26(f) conference has been held, the court may order the parties to confer again to discuss the litigation and, in particular, the most efficient way for it to proceed and any possibilities for settlement.
- Rule 16(b) requires the court to issue a scheduling order. The scheduling order will dictate the schedule upon which the litigation will progress (e.g., periods within which parties can be added, motions made, etc.) and specify particular rules pertaining to discovery (e.g., the scope of discovery on particular issues).
Discovery – 4 main topics
- mandatory disclosures,
- scope,
- methods,
- enforcement
Mandatory Disclosures (Rule 26a) – What you get without asking
- Initial Disclosures: Within 14 days after a Rule 26(f) conference, must provide to all other parties:
- Witnesses: The name/contact information of any witness that a party may use to support a claim or defense;
- Documents: Copies (or descriptions) of documents, electronically stored information (ESI), and tangible objects that a party may use to support its claim or defense;
- Damages: Computation of damages sought and supporting documents; and
Insurance Agreements: Copies of any insurance agreement that may require the insurer to pay.
Mandatory Disclosures (Rule 26a) – What you get without asking
o Expert Disclosure: At least 90 days before trial, if a party is planning to rely on expert testimony, they must disclose the name/contact info of the expert and their final report, which must include the qualifications, opinion, and information relied on by the expert.
Mandatory Disclosures (Rule 26a) – What you get without asking
o Pretrial Disclosures: At least 30 days before trial, a party must provide to all other parties:
▪ List of witnesses expected to call at trial;
▪ Witnesses that may be called if the need arises;
▪ List of witnesses whose testimony will be given through deposition or transcript; and
▪ List of documents or physical evidence they expect to present.
Scope (Rule 26b) – What you get if you ask for it. Dictated by: (Relevance)
- A party is allowed discovery into any nonprivileged matter that is relevant to any claim or defense.
- Relevant if likely to make any fact in dispute more or less likely to be true,
Scope (Rule 26b) – What you get if you ask for it. Dictated by: (Work Product)
o Work Product (WP): Even if relevant, information may be protected work product.
▪ 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:
● Party can always obtain a statement it has made.
● Can get WP if the party has a substantial need and can’t get it without undue hardship.
o If the court orders disclosure for this reason, it must make every effort to keep secret the author’s litigation strategy or mental process.
Scope (Rule 26b) – What you get if you ask for it. Dictated by: (Privilege)
o Privilege: Privileged matter is not discoverable.
▪ Attorney/client – Covers confidential communications between an attorney and client for the purpose of obtaining or rendering legal advice.
Scope (Rule 26b) – What you get if you ask for it. Dictated by: (Proportionality)
▪ Even if a party seeks information that is relevant, not work product, and not privileged, the information may still be undiscoverable if the request is not proportional to the needs of the case considering:
● Importance of the issues at stake in the action;
● Amount in controversy;
● Parties’ relative access to relevant information;
● Parties’ resources;
● Importance of the discovery in resolving the issues; and
● Whether the burden or expense of the proposed discovery outweighs its likely benefit.
▪ The court must limit the discovery sought if:
● It is not proportional to the needs of the case;
● It is unreasonably cumulative or can be obtained from a less burdensome source or in a less burdensome way; or
● The party seeking the discovery has already had ample opportunity to obtain the information.
Scope (Rule 26b) – What you get if you ask for it. Dictated by: (Expert)
o Experts:
▪ Non-testifying Expert: Assessing the merits of the case. No intention to call at trial - undiscoverable unless the party has an extraordinary need/no other way to obtain such information (rare).
▪ Testifying Expert: Opinions held by those testifying are discoverable to a limited extent. Besides mandatory disclosure, a party can also get communications relating to:
● Compensation for the expert’s study or testimony;
● Data provided by an attorney to the expert; or
● Any assumption the attorney asked the expert to make in developing the expert opinion.
Methods: How to get something you’re allowed to get( Interrogatories)
o Interrogatories (Rule 33) = Questions submitted in writing to the other party.
▪ Up to 25 questions
▪ Can seek facts or contentions
▪ 30 days to respond, must be in writing and objections stated with specificity
Methods: How to get something you’re allowed to get( Request for Admission)
o Requests for Admission (Rule 36) = Request to admit truth or fact.
▪ If admitted, it’s in there for the trial.
▪ 30 days to respond, may admit, deny, or state they have made a reasonable attempt to ascertain the truth but lack information to admit/deny.
● The responding party can object to questions as outside the scope of discovery, but cannot simply claim that the matter is properly resolved by a jury.
Methods: How to get something you’re allowed to get( Request for Production)
o Requests for production of documents, tangible items, or access to evidence.
▪ 30 days to respond, may object as outside the scope of discovery.
▪ If documents, the responding party must provide them as they are maintained in the usual course of business and label them.
▪ If electronically stored information (ESI), can provide in the form it is normally maintained or in a reasonably usable form.
Methods: How to get something you’re allowed to get( Request for Mental or Physical Examination)
o Requests for Mental or Physical Examination (Rule 35): Used 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.
Methods: How to get something you’re allowed to get( Deposition)
o Depositions (Rules 27, 30, 31): Used to ask questions of witnesses.
▪ May depose up to 10 witnesses, but can get a court order for more.
▪ Most depositions occur during the pendency of the lawsuit. Like other forms of discovery, these depositions cannot be conducted until after the 26(f) conference. In rare cases, a party may wish to depose a witness before a lawsuit is even filed. These are known as “depositions to perpetuate testimony” and are available only if all expected opposing parties are provided an opportunity to be present at the deposition and ask questions.
▪ May use at a hearing or trial 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:
o to impeach the deponent, or
o if the deponent is unavailable, (dead, infirmity, or disappearance) the deposition can be used for any purpose.
Methods: How to get something you’re allowed to get( Subpoenas)
o Subpoenas = Discovery from non-parties.
▪ Two types:
● Subpoenas duces tecum – demand for documents.
● 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.
Enforcement: What to do when you don’t get what you asked for (Motion to Comply)
▪ 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 unless the non-disclosure was not substantially justified.
● If denied – the non-movant may get fees, but only if the motion was not substantially justified.
Enforcement: What to do when you don’t get what you asked for (Sanctions)
▪ Sanctions: (if after a motion to compel, they still don’t comply)
● Court order declaring facts sought are established in favor of the requesting party;
● Court order prohibiting the disobedient party from presenting certain claims or defenses;
● Stay or dismissal of entire action; or
● Order of contempt.
o If they don’t comply at all with a deposition request, the party can immediately seek all sanctions above (except an order of contempt).
