discovery

Question 0

Rule 16(b) Conference

Answer 0

meeting to discuss most efficient way to proceed
any possibility of settlement
issue scheduling orders
specify particular rules pertaining to discovery
must be held 120 days after service and 90 days before appearance

Question 1

Rule 26f Conference

Answer 1

requires parties meet
discuss content of discovery
draft discovery plan
submit plan in 14 days
held at least 21 days before 16(b) conference

Question 2

Mandatory Disclosure - Types (3)

Answer 2

Initial Disclosure
Experts
Pretrial

Must be provided within 14 days after Rule 26 conference

Question 3

Initial Disclosures

Answer 3

Witnesses - contact information
Documents or objects party may use to support claim or defense
Damages - computation and supporting documents
Insurance Agreements - may require ins co to pay all or part of a judgement

Question 4

Expert Disclosure

Answer 4

90 days before trial
name and contact info
experts final report
report must contain experts qualifications
opinion
information on which relied

Question 5

Pretrial disclosures

Answer 5

30 days before trial
list of witnesses expected
list witnesses may be called
witness testimony presented in deposition or deposition transcript
list of documents and physical evidence to be presented

Question 6

Scope of Rule 26(b)
Criteria for discoverable information

[R]eally [W]ant [P]rivate [U]nknown [E]vidence

Answer 6

Relevance
Work Product
Privilege
Undue Burden
Experts

Question 7

Relevance of Discoverable Information

Answer 7

parties are permitted discovery of any matter relevant to any claim or defense.

Is relevant if likely to make any fact in dispute more or less likely to be true

Question 8

Work Products

Answer 8

Work Product is attorney or party prepared information, prepared in anticipation of litigation.

Question 9

Work Product discovery information

Answer 9

Substantial need
cannot otherwise obtain without substantial hardship

court must make every effort must keep secret litigation strategy, mental thoughts or processes

Question 10

Privileged information

Answer 10

protected from discovery even if relevant to a claim or defense

Question 11

Undue Burden Circumstances

Answer 11

relevant information is undiscoverable if request imposes undue burden

1. unreasonably cumulative, obtainable from less burdensome source
2. party already had ample opportunity to obtain
3. burden or expense of proposed discovery outweighs benefits considering nature of evidence sought, amount in controversy, and parties resources

Question 12

Experts - undiscoverable information

Answer 12

Non-testifying Experts - hired to assess merits - information not discoverable absent Extraordinary Need - extremely rare

Testifying experts - are discoverable including communications regarding compensation, data provided to expert, communications related to assumptions provided by attorney on which expert relied

Question 13

Interrogatories

Answer 13

May submit up to 25 questions to other party
party has 30 days to respond
response in writing
objections must be stated with specificity
some answers can be replied by supplying documents

Question 14

Requests for Admission

Answer 14

party’s request of other party to admit truth of any fact as to genuineness of any document

if admitted, it is deemed conclusively established

party has 30 days to respond

parties may admit or deny or state it has made reasonable attempt to ascertain truth of matter but lacks information to admit or deny.

Question 15

Request for production of documents, tangible items, or access to evidence

Answer 15

includes physical or electronic documents

response in 30 days
must be provide as maintained in usual course of business
labeled as requested

Question 16

Request for mental or physical examination

Answer 16

when at issue in case
must obtain court order
examiner must prepare detailed report and provide results to any party

Question 17

Depositions

Answer 17

used to ask questions of witness usually live but may be in writing
each party allowed to depose 10
more with permission of court

Depositions before a lawsuit are available only if all opposing parties are allowed to participate and ask questions. aka depositions to perpetuate testimony

Question 18

use of depositions at trial

Answer 18

may be used if
party against whom deposition is used had reasonable opportunity to be present at deposition
deposition of party or party designee can be used for any purpose

deposition of non-party for impeachment or, if party unavailable, for any purpose.

Question 19

Subpoena

Answer 19

how you get information from non-parties
can be demand for documents or testimony

person served may object as outside scope of discovery or travel more than 100 miles from place of work or home

Question 20

Enforcement of Discovery-options

Answer 20

Motion to Compel

Sanctions

Question 21

Motion to Compel

Answer 21

After movant has in good faith attempted to confer with party to see if judicial intervention can be avoided

if granted, movant is entitled to legal fees and expenses associated with making the motion

denies - non movant may be entitled to fees only if motion was not substantially justified

Question 22

Sanctions for resisting discovery

Answer 22

court declares facts sought are established in favor of requesting party
order prohibiting disobedient party from presenting claims or defenses
dismissal of action
order of contempt

Question 23

Where party does not comply with discovery request at all

Answer 23

Straight to Sanctions, no need to seek motion to compel