Discovery Flashcards
What is discovery and what are the two main categories?
Process for parties to obtain information from each other and third parties. Categories: Mandatory disclosures; and Requests for information.
What are the 3 mandatory disclosures and the deadline for each?
- Initial disclosures: 14 days after discovery conference. 2. Expert testimony: 90 days before trial. 3. Pretrial disclosures: 30 days before trial.
If party was served or joined after Rule 26(f) conference, deadline is 30 days after being served or joined. If evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party, then the deadline is within 30 days after the other party’s disclosure.
What are the 6 methods of discovery?
Mandatory disclosures; Interrogatories; Request for Admissions; Request for Documents and Tangible Items; Requests for Mental or Physical Examinations; and Depositions.
What type of information is discoverable?
Any information that is: Relevant; Proportional to the needs of the case; and Not privileged.
What type of information is not discoverable?
Information that is: Irrelevant; Privileged; or Work product (unless there is a showing of substantial need or undue hardship).
When is information considered relevant for discovery purposes?
If it is likely to make any fact in the dispute more or less likely to be true, regardless of whether it is admissible.
What is a Rule 26(f) conference?
Initiates the discovery process. Requires that parties meet ‘as soon as practicable’ to discuss claims & defenses and the possibility for settlement.
What is the deadline to hold a Rule 26(f) conference?
At least 21 days before scheduling conference is held.
What initial disclosures do parties need to make within 14 days of the Rule 26(f) conference?
Contact info for individuals likely to have discoverable information; Documents that support a party’s claims or defenses; Damages calculation & material upon which the calculation is based; and Insurance agreements that could satisfy all or part of a possible judgment.
What is a Rule 16(b) conference?
Conference where the judge issues a scheduling order detailing deadlines for disclosures, filings, and other discovery issues.
By when must the Rule 16(b) conference occur?
As soon as is practicable, but within 90 days of D being served, or within 60 days of when D appears, whichever is earlier.
Do insurance agreements need to be disclosed regardless of whether the other party asks for them?
Yes, insurance agreements are initial disclosures required by Rule 26(a)(1).
What are the different types of privilege?
Attorney/client, Doctor/patient, Spousal, Priest/penitent, Work product, Journalist (protection from revealing confidential sources), 5th Amendment protection against self-incrimination.
Is privilege an absolute bar to disclosure?
Yes, absolute bar.
What is considered work product?
Any documents or tangible things prepared in anticipation of litigation or trial by or for another party or its representative.
Are documents prepared in the ordinary course of business considered work product?
No.
When is work product discoverable?
If materials are otherwise discoverable under Rule 26(b)(1) and the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
What type of work product is almost never discoverable?
Mental impressions, conclusions, opinions, and theories regarding the case.
What types of communications are subject to attorney-client privilege?
Communications that are between the attorney and client; Were intended to be, and were, in fact, kept confidential; and Were made for the purpose of obtaining or providing legal advice.
What pretrial disclosures are required for expert and lay witnesses?
Expert: List of all expert witnesses and any info used to form the basis of their opinions. Lay: List of all witnesses and documents that will be used as exhibits at trial.
If the expert was specially retained to provide expert testimony, what must their discovery disclosures contain?
Name and contact information of the expert; Expert’s final report; Expert’s opinion and credentials; List of all other cases in which the expert has testified in (past 4 years only); Data relied on by the expert; and Amount of compensation to be paid for the study.
Are materials developed by non-testifying experts in anticipation of litigation discoverable?
No, unless exceptional circumstances make it impracticable for the parties to obtain the info by other means.
If the expert does not provide a written report, what must their disclosures contain?
The subject matter on which the witness is expected to present evidence; and Summary of the facts and opinions to which the witness is expected to testify.
Define depositions.
Proceedings held during the course of discovery (before a trial) where a witness is questioned orally by an attorney under oath.
What is the effect of giving notice of a deposition on parties? Nonparties?
Parties: Reasonable notice compels attendance. Nonparties: Notice doesn’t force a party to appear, a subpoena may need to be issued.
What are the geographical/travel limitations when deposing a nonparty?
Deposition cannot be more than 100 miles from where the person lives & works.
What are the rules on deposing a corporation?
Parties can subpoena corporations, and then the corporation/entity must designate one or more officers, directors, or managing agents, or other persons to testify on its behalf about information known or reasonably available to the organization.
What is the scope of a deposition? Are objections to questions allowed?
Scope: Anything that is discoverable, even if the evidence itself would not be admissible. Objections are allowed if nonargumentative.
How many depositions are allowed per party?
10 per party unless good cause is shown.
What is the maximum length of time a deposition can last?
Each deposition is limited to one day for a maximum of 7 hours, unless otherwise dictated by the court.
Define interrogatories.
Written questions used for disclosure of routine information.
A party can serve a maximum of ____ interrogatories on another party.
25 (including all discrete subparts), unless court approves or other party agrees.
Can interrogatories be served on nonparties?
No, only on parties.
A party served with interrogatories has ____ days to respond.
30 days.
What must responses to interrogatories include?
The response to an interrogatory must be in writing under oath; and Include objections with specificity.
What are requests for production? What is the deadline for response?
Requests for documents, tangible evidence and electronic evidence. Deadline: must respond within 30 days after the request served.
Can nonparties be served with requests for production?
Yes, may be compelled by subpoena.
When can a party request a mental or physical exam?
Only when a person’s mental or physical state is in controversy. Requesting party must show good cause.
What are requests for admissions and how can a party respond?
Requests for parties to admit the truth of certain evidence. Response options: Admit information is true; Deny information is true; Explain why party cannot admit or deny; or Object to request.
What is the deadline to respond after a request for admission?
30 days after receipt of request.
What is the effect if a party does not object or deny a request for admission?
Deemed admitted for trial.
What is a Rule 37(a) order to compel?
Orders a noncompliant party to comply with a discovery request.
What can a party compel another party to do under Rule 37(a)?
Answer questions in a deposition; Designate an individual for purposes of deposition; Answer an interrogatory; Produce documents or permit inspection of documents.
What is the prerequisite to filing a motion to compel?
Certification that movant made a good faith attempt to confer with the person resisting discovery.
If a motion to compel succeeds, what is the result?
Other party will be ordered to comply; Court may impose sanctions; Moving party may be entitled to attorney’s fees.
What sanctions can be imposed if a party fails to comply with a discovery order?
The court may direct that the information at issue must be viewed in the way that the prevailing party asserts, Prohibit the disobedient party from supporting or opposing claims, Strike pleadings, stay proceedings until the order is obeyed, dismiss the action, or render a default judgment against the disobedient party.
If a motion to compel is denied, what is the effect?
The court may issue a protective order barring discovery of the relevant information.
When is a Rule 26(c) protective order issued?
To prevent ‘annoyance, embarrassment, oppression, or undue burden or expense’.
What is the prerequisite to filing a Rule 26(c) protective order?
Moving party must show that she conferred or attempted to confer with the other party to resolve the dispute.
What does a Rule 26(c) protective order limit?
Either: Timing of discovery; Scope of discovery; or Forbids discovery altogether.
What is the effect of an attorney signing discovery disclosures pursuant to Rule 26(g)?
Certifies that the disclosures are complete and correct; Consistent with the rules; Warranted by existing law; Not made for an improper purpose; and Not unreasonably burdensome.
What is the effect if a motion is denied?
The court may issue a protective order barring discovery of the relevant information. In addition, the moving party may be required to pay attorney’s fees to the other side unless the motion was substantially justified.
What is the prerequisite to filing a Rule 26(c) protective order?
The moving party must show that she conferred or attempted to confer with the other party to resolve the dispute.
What is the effect of an attorney signing discovery disclosures pursuant to Rule 26(g)?
Certifies that the disclosures are: Complete and correct (mandatory disclosures only); Consistent with the rules; Warranted by existing law; Not made for an improper purpose; and Not unreasonably burdensome.
How do Rule 11 and Rule 26(g) differ regarding sanctions?
There is no safe harbor for Rule 26(g), so a party served does not have 21 days to correct their error.
