Discovery

Question 1

Duty to preserve evidence-Spoliation

Answer 1

• Definition: Destruction or material alteration of evidence
• Party should know that the evidence is relevant…
• Sanction under 37
• Don’t have to preserve
• Inferred duty for electronic info

Question 2

Early pretrial procedure of a federal lawsuit/Timing of required disclosures

Answer 2

• Rule 4-Service occurs when the D has been served
• Rule 16-Within 90 days after Ds appearance or 120 days after service, the judge shall hold a scheduling conference
• Rule 26
• Parties must meet themselves to discuss the case “as soon as practicable” or at least 21 days before the scheduling conference
• Requires the parties at their meeting or within 14 days afterward to exchange disclosure lists- and so this means that the parties should have exchanged the required disclosures at least seven days before the scheduling conference
• Parties may not use other forms of discovery until after the scheduling conference

Question 3

Required disclosures

Answer 3

• Required disclosures
• Name, address and telephone number of each individual likely to have discoverable info that the disclosing party may use to support its claims or defenses
• Copies (or a description by category and location) of all docs, electronically stored info, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses
• A computation of each category of damages claimed by the disclosing party

Question 4

Disclosure of expert testimony

Answer 4

• A party must disclose to the other parties the ID of any witness it may use at trial to present evidence
• Witnesses who must provide a written report
• If the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony

Question 5

Discovery scope

Answer 5

• Parties may obtain discovery regarding any non privileged matter that is relevant to any party’s claim or defense
• Relevant info need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

Question 6

Discovery limits

(the court must limit frequency or extent of discovery)

Answer 6

• Discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
• The party seeking discovery has had ample opportunity to obtain info; or
• The burden or expense of the proposed discovery outweighs its likely benefit

Question 7

Other ways info can be discovered
Interrogatories to parties

Answer 7

• Written questions that the responding party is required to answer under oath, unless her atty objects to the specific question with reasons specifically stated in writing
• Limited to no more than 25 written interrogatories

Question 8

Other ways info can be discovered

Requests for admission

Answer 8

• A written request asking another party to admit “the truth of any matters within the scope of R26(B)(1) relating to:
• Facts, the application of law to fact, or opinions about either; and
• The genuineness of any described docs

Question 9

Other ways info can be discovered
Depositions

Answer 9

• Depositions is a method of questioning a witness under oath before trial and without a judge
• Cannot exceed 10 depositions per side or 7 hrs
• No person can be disposed a second time without permission from the court or other side
• An objection at the time of the examination must be noted on the record, but the examination still proceeds, the testimony is taken subject to any objection
• Objection must be stated concisely in a non-argumentative and non-suggestive manner
• Person may instruct deponent not to answer only; When necessary to preserve a privilege, To enforce limitation ordered by the court; OR To present a motion when its getting out of control

Question 10

• Other ways info can be discovered
• Rule 34-Producing docs, electronic info, and tangible things, or entering onto land, for inspection and other purposes

Answer 10

• A party may serve on any other party a request to produce or permit the requesting party or its rep to inspect, copy, test, or sample
• Any docs or electronically stored info

Question 11

Subpoena

Answer 11

A non party may be compelled to produce docs and tangible things or to permit an inspection

Question 12

Other ways info can be discovered
Rule 35 Physical and mental examinations

Answer 12

• Court may order party whose mental or physical condition is in controversy to submit to a physical or mental examination
• May be made only on motion for good cause