discovery Flashcards
Rule 16(b) Conference
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
Rule 26f Conference
requires parties meet discuss content of discovery draft discovery plan submit plan in 14 days held at least 21 days before 16(b) conference
Mandatory Disclosure - Types (3)
Initial Disclosure
Experts
Pretrial
Must be provided within 14 days after Rule 26 conference
Initial Disclosures
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
Expert Disclosure
90 days before trial name and contact info experts final report report must contain experts qualifications opinion information on which relied
Pretrial disclosures
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
Scope of Rule 26(b)
Criteria for discoverable information
[R]eally [W]ant [P]rivate [U]nknown [E]vidence
Relevance Work Product Privilege Undue Burden Experts
Relevance of Discoverable Information
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
Work Products
Work Product is attorney or party prepared information, prepared in anticipation of litigation.
Work Product discovery information
Substantial need
cannot otherwise obtain without substantial hardship
court must make every effort must keep secret litigation strategy, mental thoughts or processes
Privileged information
protected from discovery even if relevant to a claim or defense
Undue Burden Circumstances
relevant information is undiscoverable if request imposes undue burden
- unreasonably cumulative, obtainable from less burdensome source
- party already had ample opportunity to obtain
- burden or expense of proposed discovery outweighs benefits considering nature of evidence sought, amount in controversy, and parties resources
Experts - undiscoverable information
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
Interrogatories
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
Requests for Admission
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.
Request for production of documents, tangible items, or access to evidence
includes physical or electronic documents
response in 30 days
must be provide as maintained in usual course of business
labeled as requested
Request for mental or physical examination
when at issue in case
must obtain court order
examiner must prepare detailed report and provide results to any party
Depositions
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
use of depositions at trial
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.
Subpoena
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
Enforcement of Discovery-options
Motion to Compel
Sanctions
Motion to Compel
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
Sanctions for resisting discovery
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
Where party does not comply with discovery request at all
Straight to Sanctions, no need to seek motion to compel
