Discovery Flashcards
What is discovery?
A legal process used to compel disclosure of information relevant to litigation. Its primary purpose is to enable more accurate trial outcomes by ensuring that both parties can present their strongest cases. Additionally, discovery reduces the risk of surprise at trial and promotes settlements by aligning the parties’ expectations of case value. It can also facilitate summary judgment by revealing whether a claim or defense lacks evidence.
What is an informal investigation and what purpose does it serve?
An investigation conducted before and during litigation without court involvement.
Includes witness interviews, document reviews, and property visits.
Can involve the Freedom of Information Act (FOIA) for government-held information.
More cost-effective than formal discovery.
Helps comply with Rule 11’s requirement for factual investigation before filing.
What is a Discovery Planning Meeting (Rule 26(f))?
Parties must meet to create a proposed discovery plan.
Must address:
○ Any changes to mandatory disclosures.
○ Limits on discovery.
○ Handling of electronically stored information (ESI).
Deadline:
Must occur within 90 days of serving a defendant or 60 days after an appearance.
The discovery plan report is due 14 days after the meeting.
Initial Disclosures (Rule 26(a))
Mandatory disclosures include:
○ Witness names and contact details.
○ Relevant documents and data.
○ Damages calculations.
○ Insurance agreements covering judgments.
Must be provided within 14 days after the discovery planning meeting.
Scope of Discovery (Rule 26(b)(1))
Broad discovery is allowed for any nonprivileged matter relevant to claims or defenses.
Factors considered:
○ Proportionality to the needs of the case.
○ Amount in controversy.
○ Parties’ access to information and resources.
○ Balance of discovery costs and benefits.
Includes admissible and potentially useful hearsay evidence.
Depositions (Rule 30)
Oral depositions: Witness testimony under oath, recorded for trial.
Depositions on written questions: Less common, but cheaper.
Advantages:
○ Direct questioning without attorney interference.
○ Ability to assess witness credibility and opposing counsel’s strategy.
Limitations:
○ 7-hour limit per deposition.
○ Maximum of 10 depositions per side (court can grant exceptions).
Attorney behavior:
○ Limited objections allowed.
○ Can instruct a witness not to answer only for privilege, protective orders, or abusive questioning.
○ Sanctions apply for obstruction or improper conduct.
Interrogatories (Rule 33)
Written questions requiring sworn answers. Can only be directed at parties, but answers are commonly drafted by representation.
Common uses:
○ Identifying witnesses and documents.
○ Obtaining financial and damages-related information.
○ Understanding opposing party’s legal contentions.
Limitations:
○ Maximum of 25 interrogatories per party (including subparts).
○ Objections must be specific and non-generalized.
Production of Documents and Things (Rule 34)
Allows a party to request documents, electronic data, and physical evidence. Covers document review, copying, or testing. Can include property inspections for physical or land disputes.
Objections:
○ Must be made within 30 days.
○ If unresolved, the requesting party can file a motion to compel.
Non-parties: May be required to produce documents via subpoena (Rule 45).
Physical and Mental Examinations (Rule 35)
Only permitted when a party’s physical or mental condition is in dispute. Requires court approval and a showing of good cause. Conducted by a licensed medical expert. The examining party must share the expert’s report. The examined party must disclose any similar reports from their own experts.
Requests for Admission (Rule 36)
A party requests another to admit certain facts or document authenticity.
Purpose: Narrows trial issues by eliminating uncontested facts.
Response time:
○ Must admit, deny, or object within 30 days.
○ Failure to respond results in automatic admission.
Admissions are binding for the case unless withdrawn with court approval.
Protective Orders and Motions to Compel (Rules 26(c) & 37)
Protective Orders (Rule 26(c)):
○ Used when discovery requests are overbroad, intrusive, or harassing.
○ Can limit or prohibit certain discovery requests.
Motions to Compel (Rule 37):
○ Filed when a party refuses to comply with discovery requests.
○ Court can force compliance and impose sanctions.
Good faith requirement: Parties must attempt to resolve disputes before filing motions.
Sanctions for Discovery Violations (Rule 37)
Courts can impose sanctions when a party:
○ Fails to comply with court orders.
○ Destroys or withholds evidence (spoliation).
○ Engages in bad faith litigation tactics.
Possible sanctions include:
○ Attorney’s fees and costs.
○ Striking pleadings.
○ Dismissing claims or defenses.
○ Entering default judgment.
Extreme cases may result in factual findings against the violating party.
Zubulake Rule for Cost-Shifting (7-factor test)
Discovery cost-shifting is considered if production is unduly burdensome.
New Test (Zubulake Modification): A seven-factor test emphasizing proportionality and fairness:
i. Specificity of the discovery request.
ii. Availability of information from other sources.
iii. Total cost vs. amount in controversy.
iv. Total cost vs. party resources.
v. Ability to control costs.
vi. Importance of the issues at stake.
vii. Relative benefits to each party.
Special Rules Governing E-Discovery
Rule 16(b)(3)(B)(iii): Scheduling orders may include e-discovery provisions.
Rule 26(a)(1)(A)(ii): Electronically Stored Information (ESI) included in mandatory disclosures.
Rule 26(b)(2)(B):
A party need not provide ESI that is not reasonably accessible due to cost or burden. If contested, the responding party must prove undue burden before the court considers cost-shifting.
Rule 34:
Requesting parties can specify the form of ESI production. The responding party can object and propose an alternative format.
What is the attorney-client privilege rule on corporations set forth in Upjohn v. United States?
Issue:
Does the attorney-client privilege protect communications between corporate attorneys and lower-level employees beyond the “control group” when the information is gathered for legal advice?
Holding:
Yes. The Supreme Court rejected the “control group test” and held that the attorney-client privilege applies to communications between corporate counsel and employees when the communications are made for the purpose of securing legal advice.
Key Takeaway:
The Supreme Court broadened attorney-client privilege for corporations, ensuring that legal advice can be fully informed by employee communications without the risk of compelled disclosure.
What is attorney-client privilege?
The privilege is a legal shield against compelled disclosure in legal proceedings and applies only to attorney-client communications.
The privilege applies to confidential communications made for the purpose of obtaining legal advice. It extends to individuals, corporations, partnerships, and government organizations. Communications are protected, but underlying facts are not (as seen in Upjohn).
Unlike other legal protections, the attorney-client privilege cannot be overridden even if the protected information is unavailable elsewhere. A party must expressly claim privilege and provide a description of withheld documents (often through a privilege log). Privilege can be waived voluntarily or inadvertently (e.g., by accidental disclosure in electronic discovery).
What is the work product doctrine?
The work-product doctrine originated as a judicially recognized protection rather than a formal rule, safeguarding attorneys’ litigation materials from discovery by opposing parties.
Allowing discovery of lawyer’s notes and mental impressions would undermine the adversarial system and discourage proper legal preparation. Opposing parties should conduct their own investigations rather than rely on an adversary’s work.
The Court acknowledged that, in rare cases, disclosure might be justified (e.g., if witnesses are unavailable).
Hickman v. Taylor:
Established the work-product doctrine, protecting materials prepared in anticipation of litigation from discovery.
Distinguished attorney-client privilege (which protects confidential client communications) from work-product immunity (which protects an attorney’s investigative and strategic materials).
What are the differences between attorney-client privilege and work product doctrine?
Work-Product Doctrine:
○ Protects materials prepared for litigation, including witness statements and document compilations(even if not from the client).
○ Can be overcome if equivalent information is unavailable elsewhere.
Attorney-Client Privilege:
○ Protects confidential legal communications, regardless of litigation.
○ Cannot be overcome based on the information’s unavailability elsewhere.
What is the scope of the work product doctrine?
“Documents and Tangible Things”
○ Protects written materials, but courts are divided on whether it applies to unrecorded attorney recollections of witness statements.
○ Some courts extend protection to intangible information (e.g., mental impressions of a witness statement), while others do not.
“Prepared in Anticipation of Litigation”
○ Work-product protection does not apply to materials prepared in the ordinary course of business or for non-litigation purposes.
○ Courts distinguish between:
□ Routine business investigations (e.g., insurance claims, internal HR probes) → Not protected.
□ Materials prepared because of litigation risk → Protected.
“By or for Another Party or Their Representative”
○ Work product does not need to be prepared by a lawyer; it can be prepared by consultants, auditors, insurers, or agents.
What are the rules around the different types of expert witnesses?
Testifying Experts:
Expert identity must be disclosed without a request (Fed. R. Civ. P. 26(a)(2)(A)).
Retained experts must submit a detailed written report (Fed. R. Civ. P. 26(a)(2)(B)), including:
○ All opinions and their basis.
○ Data relied upon.
○ Exhibits used.
○ Qualifications and prior testimony history.
○ Compensation details.
Non-retained experts (e.g., treating physicians) need only provide a summary of expected testimony.
Deposing experts:
○ Allowed only after reports are submitted (Fed. R. Civ. P. 26(b)(4)(A)).
○ Deposing party must pay the expert a reasonable fee.
Retained Non-Testifying Experts
• Scope of Protection Under Rule 26(b)(4)(B):
○ If a non-testifying expert overhears an admission of liability from a party before being retained, this information would not be protected by Rule 26(b)(4)(B) because it was acquired outside the expert’s role in trial preparation.
○ However, if an expert concludes after being retained that the defendant met the standard of care, their opinion would be protected from discovery.
Informally Consulted Experts
• Justification for Non-Discoverability:
○ Rule 26(b)(4)(B) completely bars discovery of informally consulted experts’ opinions and identities.
○ This rule promotes open discussion between attorneys and experts, allowing attorneys to assess their case without fear of disclosure.
What are the rules pertaining to compelling a party to undergo a psychiatric evaluation?
If mental state is at issue in the plaintiff’s claim and it is “in controversy,” then Defendants have the right to compel a psychiatric evaluation. There are limits to the scope of the examination; there are statutes and common law rules protecting individuals from unwarranted intrusion into personal matters, including sexual history. Plaintiff representation cannot be present during the examination.
What are protective orders?
Protective orders typically restrict the use or disclosure of sensitive information discovered during litigation.
Common limitations include:
○ Restricting use to preparation and trial of the case.
○ Limiting access to parties, lawyers, and experts only.
○ Specifying how and where information can be examined or stored.
○ Requiring those with access to sign agreements to comply with the order.
Protective orders serve important privacy and litigation interests, but they must be balanced against the public’s right to access information—particularly in cases involving public safety risks. Courts have discretion to seal records, restrict discovery use, and modify protective orders, but they must justify such restrictions carefully to avoid undue secrecy in litigation.
What are the consequences for spoliation (destruction) of evidence?
Spoliation of evidence can result in severe sanctions, including adverse inferences and attorneys’ fees.
Bad faith destruction (intent to suppress truth) is required for an adverse inference instruction—mere negligence is insufficient.
Defendants must be allowed to rebut an adverse inference, or the instruction becomes unfairly prejudicial.
Routine document retention policies do not always protect a party if evidence is highly relevant to foreseeable litigation.
