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Civ Pro second semester > Discovery > Flashcards

Discovery Flashcards

1
Q

What is the purpose of discovery?

A

1) trial preparation
2) focus on contested issues
3) save judicial resources
4) eliminate surprise

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2
Q

STAGES OF DISCOVERY: When does informal discovery take place?

A

before a complaint or before file an answer

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3
Q

STAGES OF DISCOVERY: Rule ii. 26(a)(1); Mandatory/required/initial disclosures

A
  1. info that needs to be given to the other side w/o any requests from the other side i.e.: documents, witnesses, insurance
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4
Q

STAGES OF DISCOVERY: Rule 33: Interrogatories

A

1) 25 questions to ask a party & a party may agree to more
2) simple info
3) No follow up questions

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5
Q

STAGES OF DISCOVERY: Rule 34: document requests/entry upon land/requests for tangible things

A

Why it sucks:

  1. difficult to produce
  2. not limited
  3. requests to parties. Subpoena for non-parties (rule 45)
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6
Q

STAGES OF DISCOVERY: Rule 30 depositions

A
  1. can ask follow up questions
  2. can pin witnesses down in terms of what their story is
  3. costly: take time, more thought/strategy
  4. witnesses must answer unless have a protective order
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7
Q

STAGES OF DISCOVERY: Rule 36: requests for admissions

A
  1. not limited
  2. conclusively proves something
  3. ask other side to either admit or deny or say don’t have info
  4. taking issues off the table
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8
Q

SCOPE OF DISCOVERY: Rule 26(b)(1) Limit on relevance & privilege

A
  1. A party can seek discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense”
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9
Q

SCOPE OF DISCOVERY: Davis

A

looking for complaints from previous employees. It was okay since it was narrowly tailored to the specific claims of the case. Relevant to establish pretext.

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10
Q

SCOPE OF DISCOVERY: Steffen

A

Motion for protective order. Steffen refused to answer whether he engaged in gay sex because he felt it was irrelevant to his speech and had had 5th amendment priv against self-incrimination

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11
Q

LIMITS ON DISCOVERY: Privacy Stalnaker case:

A

D motioned for protective order in sexual harassment/hostile work environment case. Potential harassment towards another employee. Allowed, but kept confidential from other 3rd parties.

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12
Q

LIMITS ON DISCOVERY: Rule 26(c): an order protecting non-party witnesses from discovery concerning voluntary romantic conduct of their sexuality related activities.

A

Court has the discretion to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. Must show good cause (particular and specific demonstration of fact)

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13
Q

LIMITS ON DISCOVERY: Privilege Types

A
  1. Physician
  2. Psychotherapist-Patient
  3. against self-incrimination (5th Amendment)
  4. spousal communications
  5. priest-penitent
  6. journalists and confidential sources
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14
Q

LIMITS ON DISCOVERY: Elements of Attorney-Client Privilege

A

1) A communication
2) Made between privileged persons
3) In confidence
4) For the purpose of obtaining or providing legal assistance for the client

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15
Q

LIMITS ON DISCOVERY: Hickman tug boat case

A

Tug sank while helping to tow a car float of a RR. 5/9 crew members drowned. Oral and written statements were accessible, but one side tried to obtain the other’s files. No bueno.
1. Work Product

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16
Q

LIMITS ON DISCOVERY: Rule 26(b)(3) Work Product is

A

(1) documents and tangible things; (2) prepared in anticipation of litigation or for trial

17
Q

LIMITS ON DISCOVERY: Not work product

A

(1) a relevant “statement” by the party seeking the statement
(2) a relevant “statement” statement of a person not a party

18
Q

EXPERTS: Rule 26(a)(2)

A
  1. Must identify
  2. Expert witness’ involves giving expert testimony must disclose written report: opinions and reasoning; facts/data used to arrive at opinion; exhibits used to summarize/support opinions; qualifications; list of prior expert testimony; fee paid
  3. Other expert witness’ (e.g. a treating physician) need to disclose the subject matter and the summary of facts and opinions
  4. Timing: within 90 days before trial (or 30 days if it’s a rebuttal expert)
19
Q

EXPERTS: Thompson

A

(P) alleged sexual harassment. The (P) was reduced to a severely emotional state and her employment was terminated. She went to see a dr and wanted to get protective order for treatment record. However still discoverable b/c (D) could not obtain info any other way.

20
Q

EXPERTS: Chiquita

A

in determining whether a person qualifies as a non-testifying expert, as opposed to a fact witness, the court focuses on how the potential witness came about his information. Here, the court found that Winer qualified as a non-testifying expert because he was specifically engaged by Plaintiff to examine the vessel in connection with the cargo loss claim.

21
Q

EXPERTS: Rule 26(b)(4)(D)(ii):

A

facts and opinions from a non-testifying expert can be obtained “on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.”

22
Q

EXPERTS: Silvestri

A

This case highlights that even before litigation is commenced, you may have certain duties (in this case, a duty to preserve evidence [spoliation]).The court has discretion to dismiss an action for the spoliation of a key piece of evidence, particularly when such conduct of the spoliator may have been either deliberate or negligent and becomes “highly prejudiced” to the defendant. court dismissed

23
Q

EXPERTS: Spoilation

A

refers to the destruction or material alteration of evidence or to the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation

24
Q

PERSERVING EVIDENCE: Rule 37(a)

A
  1. 37(a)(1): general framework for motions to compel
25
Q

PERSERVING EVIDENCE: Specific motions

A

a. when a party fails to make a Rule 26(a) disclosure. Rule 37(a)(3)(A)
b. when a deponent fails to answer a question. Rule 37(a)(3)(B)(i).
c. when a corporation fails to designate someone for a deposition. Rule 37(a)(3)(B)(ii)
d. when a party fails to answer an interrogatory. 37(a)(3)(B)(iii)
e. when a party fails to produce a document. 37(a)(3)(B)(iv)

26
Q

PERSERVING EVIDENCE: Granted Motion to Compel: Rule 37(a)(5)(A)

A
  1. The court must require the party or the lawyer advising the conduct to pay reasonable expenses in making the motion, including attorney’s fees, except if:
    a. The person who made motion to compel did not first try and work things out with the other side;
    b. The person who refused to comply with the discovery request was substantially justified in refusing the request; OR
    c. Other circumstances make award of expenses unjust
27
Q

PERSERVING EVIDENCE: Denied motion to compel: Rule 37(a)(5)(B)

A
  1. The court may issue a protective order
  2. The person (or their attorney) who made the motion to compel must pay the other side’s reasonable expenses incurred in opposing the motion, including attorney’s fees; except:
    a. If motion to compel was substantially justified; or
    b. Other circumstances make award of expenses unjust
28
Q

PERSERVING EVIDENCE: Rule 37(b): failing to comply with a court order

A

a. Rule 37(b)(1) covers deponents generally and allows courts to issue contempt orders when the deponent refuses to comply with a court order to answer a question
b. Rule 37(b)(2) covers other sanctions that may be meted out in the particular case

29
Q

PERSERVING EVIDENCE: sanctions

A

Finding facts against you; preclusion of certain claims or defenses; staying proceedings; dismissing action/default judgment; payment of expenses (Rule 37(b)(2)(C)

30
Q

PERSERVING EVIDENCE: Rule 37(c)

A
  1. 37(c)(1) allows for specific sanctions related to a failure to disclose under rule 26(a) or a failure to supplement a discovery response under 26(e)
  2. Rule 37(c)(2) allows for specific sanctions related to a failure to admit
  3. Too late for a motion to compel under 37(a)
31
Q

PERSERVING EVIDENCE: Rule 37(d)

A
  1. Situation where a party fails to appear for a deposition. Rule 37(d)(1)(i)
  2. Covers the situation were a party fails to serve answers to interrogatories or fails to respond to a document request. Rule 37(d)(1)(ii)
  3. Provides for a “no excuses” policy: if discovery was wrong, the remedy is to seek a protective order. Rule 37(d)(2).
  4. Provides that sanctions may be levied, including lawyer’s fees. Rule 37(d)(3).
32
Q

PERSERVING EVIDENCE: 37(e):

A

electronically stored documents

33
Q

PERSERVING EVIDENCE: 37(f):

A

provides a sanction for failing to participate in the framing of a discovery plan

Civ Pro second semester (10 decks)

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