Discovery

Question 1

Initial disclosures in KS?

Answer 1

Only in Fed’l Court. Don’t have to worry about them in KS

Question 2

Discovery on experts - time to give notice?

Answer 2

90 days before trial

Question 3

What do you have to disclose about experts?

Answer 3

Identity of any person who may be used at trial as an expert
Written report signed by the expert stating the subject matter on which the expert will testify and a summer of the grounds of her opinion.

Question 4

What are the requirements in federal court that do NOT apply in KS state court?

Answer 4

Publications, payment and past cases they’ve helped on

Question 5

What is the other rule in KS when parties must produce discovery without being asked?

Answer 5

There’s a continuing duty to supplement/correct previous discovery responses as needed

Question 6

General standard for what information is discoverable

Answer 6

Same as Fed’l EXCEPT for 1 thing. Discoverable info is…:
Not privileged
Relevant to the subject matter involved in the action.
Need not be admissible at trial as long as it is reasonably calculated to lead to discovery of admissible evidence

Question 7

Difference between federal and state court “relevance”

Answer 7

In fed’l court: relevant just to “any party’s claim or defense” intended to narrow standing by eliminating subject matter.
KS kept broader “subject matter” standard

Question 8

Discovery of Electronic Information (ESI); State vs. Federal?

Answer 8

KS has MOSTLY followed federal rules, except…

Question 9

Scheduling for ESI

Answer 9

Case management conference - court MUST consider and take appropriate action on issues relating to disclosure or discovery of ESI (different from Fed’l Court)

Question 10

Scope of ESI discovery

Answer 10

Party need not produce ESI that it identifies as “not reasonably accessible because of undue burden or cost.”

Question 11

Procedure for holding back ESI

Answer 11

If opponent party challenges, party will have to explain to the court. If court agrees that not reasonably accessible, the party must produce only if court orders for “good cause.”

Question 12

Waive or privilege: claw back provisions

Answer 12

If you inadvertently produce documents that are privileged (or protected as work product), notify your opponent

Question 13

Once you notify your opponent of the inadvertent disclosure…

Answer 13

Opponent must then “promptly” return to destroy the documents

Question 14

After notification and destruction, what happens?

Answer 14

Court determines whether the inadvertent production waived the privilege or protection