DISCOVERY

Question 1

Discovery - what is it?

Answer 1

procedure whereby one party may gain information fro the other parties.
primary purpose = to provide litigants with an opportunity to review all pertinent evidence prior to trial

Question 2

Discovery devices

Answer 2

initial disclosures
deposition
interrogatories
request for production
physical and mental exam
request for admissions

Question 3

Mandatory/Required Disclosure. Rule 26(a)

Answer 3

Initial disclosure. Must produce

• people likely to have discoverable info
• copy of all docs, ESI and tangible things in possession that may use to support claim
• computation of damages claimed
• insurance agreements

Question 4

When to make Mandatory/Initial Disclosures?

Answer 4

within 14 days after parties’ 26(f) discovery conference unless stipulated

Question 5

Party is entitled to demand discovery that:

Answer 5

is relevant to claim or defense
(relevant info need not be amissible at trial if could lead to admissible evidence)
-is not unreasonably cumulative, burdensome or disproportionate; and
-is not privileged

Question 6

Privileges

Answer 6

atty/client
doc/patient
priest/penitent
H/W

Question 7

Trial Prep Materials Rule 26(b)(3)

Answer 7

material prepared in anticipation of litigation is protected. can overcome protection if:

1. substantial need
2. without undue hardship; AND
3. not otherwise available

Question 8

Protected documents

Answer 8

mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative

Question 9

Spoilation

Answer 9

The destruction or material alteration of evidence that will likely be used at trial. spoiled if:

1. when the person having control over the evidence also has a duty to preserve it
2. destruction or loss is accompanied by culpable state of mind
3. evidence was relevant to the case or defense of the case

Question 10

Depo by Oral Exam

Answer 10

w/o leave of court:
no more than 10 depos
Duration 1 day/ 7 hrs.
must give reasonable written notice statig time, place and deponent's name and address
must state method of recording

Question 11

Interrogatories

Answer 11

No more than 25, including discrete subparts

30 days to answer

Question 12

Resisting Discovery

Answer 12

Party resisting has burden to establish lack of relevance by showing:

1. does not come within scope of relevance or
2. is of such marginal relevance that potential harm occasioned by discovery would outweigh ordinary presumption in favor of road discovery

Question 13

Producing Documents, ESI and Tangible Things

Answer 13

Request must describe with particularity each item…
time, place ad manner of inspection
how ESI to be produced
30 days to respond