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Civil Procedure > Discovery > Flashcards

Discovery Flashcards

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Civil Procedure 1L flashcards
1
Q

Discovery - Gral - Elements

A
  • Procedure used to require adverse party
  • To disclose information that is essential for preparation of the requesting party’s case
  • That the other party alone knows or posses
  • Request is for any non-privileged matter relevant to any party’s claim
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2
Q

Discovery - Methods - PRIDE (5) (post mandatory initial disclosures)

A

1) Production of docs
2) Requests for admission
3) Interrogatories
4) Depositions
5) Examinations (physical and mental)

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3
Q

Discovery - Methods - PRIDE - Special Rules for response after discovery request

A

For production of docs, req for admission and interrogatories (PRI):

  • party has 30 days from request to submit or deemed as formally objected (responding parties bear own costs)
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4
Q

Discovery - Timing and sequence

A
  • Gral rule: any speed/order after Mandatory Discovery Conference
  • but 14 days for mandatory disclosure
  • court or statute can order differently
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5
Q

Discovery - Mandatory Discovery Conference

A
  • Btwn counsel
  • Binding agreement on schedule for discovery
  • Start of 14 days for mandatory disclosure
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6
Q

Discovery - Ex-parte Informal Contact

A
  • Duty for parties to communicate formally through counsel on discovery issues
  • Prohibition of improper coms dealing with the opposing party, or its experts, consultants, physicians and for corps w/mgmt level employees
  • Proper to com with lay witness and lower level former employees
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7
Q

Discovery - Scope - Gral

A
  • Very broad and liberal
  • FRCP 26: info that appears to be relevant or likely to lead to admissible E
  • NOT necessarily admissible
  • Privileges apply hence confidential coms not discoverable unless waived
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8
Q

Discovery - Scope -Restriction - Protective Order

A
  • Court can order it to bar/limit discovery
  • DUOP situations of request - avoid “fishing” for E
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9
Q

Discovery - Scope -Restriction - Protective Order - DUOP grounds

A

1) Duplicative
2) Unduly burdensome
3) Oppressive
4) Protection of secret process/formula/software code/ other trade secrets

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10
Q

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - Reqs for discoverable

A

WP prepared for litigation is NOT discoverable UNLESS:

  • only source +
  • “substantial need”
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11
Q

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - “Only Source” Requirement

A

No justification of discovery when statement is obtainable as result of deposition

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12
Q

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - “Substantial need for court” Requirement

A

Party needs to show to court:

  • Importance of info to their case
  • Difficulty of obtaining equivalent info from other sources
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13
Q

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - Specific Restrictions to application (hence possible discovery) (3)

A

1) Attorney’s work at issue - i.e. malpractice case
2) Attorney’s impressions, legal theories and/or strategies
3) Attorney waives privilege - “open door” to counsel by showing materials to W to prepare for testifying/deposition

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14
Q

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - Content Protected

A
  • Docs - Tangible items
  • i.e. investigative report, W statements, research notes, photos, videos - EVEN if not prepared by attorney but requested by him
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15
Q

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - “Preparation in anticipation of litigation” Requirement

A
  • broad definition: “Likelihood of litigation” is enough (even if not yet commenced)
  • Right not to be discovered BUT also duty not to destroy them
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16
Q

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - Difference with Attorney Client Privilege

A
  • WP prevents discover of material prepared in anticipation of litigation

VS

  • Privilege is protection of confidential coms in both criminal and civil. (Court might required preparation of privilege log to be submitted)
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17
Q

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - Similarity with Attorney Client Privilege

A

Both can be waived

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18
Q

Discovery - Scope - Insurance Availability

A

Mandatory disclosure of insurance policy that might cover all or part of judgment

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19
Q

Discovery - Scope - FOIA

A

Allows for discovery when suing govt entity

  • WP and other privileges still apply
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20
Q

Discovery - Experts - 3 possible types of discovery

A

1) As Expert W
2) As consultant (not as W)
3) As “Fact Expert” aka “Occurrence Expert”

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21
Q

Discovery - Experts W - Disclose obligations (5)

A

1) Subject matter
2) Substance of opinion
3) Grounds of opinion (factual basis and data used)
4) Compensation
5) Qualifications

22
Q

Discovery - Experts W - Gral

A
  • Expert must be formally depose (no ex-parte contact possible)
  • Failure to comply will prevent from giving testimony and be subject sanction
23
Q

Discovery - Experts as consultant - Gral

A
  • Under WP doctrine (as part of legal team)
  • Opposed party needs to show “Exceptional Circumstances” creating undue hardship and inability to obtain info from other source
24
Q

Discovery - “Fact Expert” aka “Occurrence Expert” - gral

A
  • W on basis of personal involvement that otherwise would qualify as expert W
  • treated as lay W
  • no discovery protection
25
Q

Discovery - “Fact Expert” aka “Occurrence Expert” - Test

A

“Were opinions obtained for the specific purpose of preparing for litigation?”

26
Q

Discovery - Mandatory Initial Disclosure - gral

A
  • Even if not requested by opposing party aims to limit delay tactics
  • Within 14 days from initial discovery conference
27
Q

Discovery - Mandatory Initial Disclosure - Content (5 + 1+ 1)

A

1) ID of W w/discoverable info
2) Physical/electronic docs on party’s possession/custody/control + location
3) Other tangibles party may rely upon
4) Numerical calculations of dx
5) Summary of subject that W of fact will testify about

+ 1) Existing of insurance of policy

+ 1) Reqs for expert testimony (5)

28
Q

Discovery -Depositions - Gral

A
  • Recorded oral/video/stenographic examination UNDER oath BEFORE TRIAL
  • From anyone - even non party
  • Proper venue is where action is pending OR at his house/work/regularly conduct business
  • Subpoena required from the court where action is pending
29
Q

Discovery -Depositions - Subpoena

A
  • Service of subpoena is required to compel attendance of non party
  • Service to location within state or 100 miles from where lives/work/regularly conduct business
  • Deponent can present motion to quash subpoena
  • Deponent also tendered with check to pay for attendance fee and milleage cost
30
Q

Discovery -Depositions - “Duces Tecum” Subpoena

A

Deponent is also compelled to bring along all necessary documents

31
Q

Discovery -Depositions - Actual deposition

A
  • Under oath - W reviews transcription and correct pre-official publication
  • Up to 7 hours per day
32
Q

Discovery -Depositions - Conduct During Deposition

A
  • Answer w/o evasion or privately consult with counsel
  • Objection and instructions from counsel only to:
    a) assert privilege (i.e. spouses communication)
    b) object form of Q (not leading)
    c) Request protective order if DUOP circumstances
33
Q

Discovery -Depositions - Use of deposition transcript as E on trial as exception to hearsay

A

Transcription of deposition Exception to gral hearsay rule (is out-of-court statement )

    • when inconsistent previous statement or as opposed party admission
    • Can be admissible as former testimony if if deponent is unavailable as W at trial
34
Q

Discovery -Depositions - Use of deposition as E on trial as exception to hearsay - Party deposition

A
  • Used in place of live testimony
  • Exception hearsay: when used as opposed party admission
35
Q

Discovery -Depositions - Use of deposition as E on trial as exception to hearsay - Non- Party deposition

A
  • Exception to hearsay allowed to show prior consistent or inconsistent items when acting as W at trial
36
Q

Discovery - Interrogatories - Gral

A
  • Written Q’s addressed only to opposing party
  • Cost bear by responsing party
  • Answers to Q are exceptions to hearsay rule as admission by party opponent
37
Q

Discovery - Interrogatories - Procedure

A
  • Request must be answered within 30 days of service
  • Can be included as part of discovery request
38
Q

Discovery - Interrogatories - Written Supplementation of Responses

A
  • Mandatory when answering party notices discoverable matter or additional experts expected to testify
  • Test: Will new info lead to more discoverable information?
39
Q

Discovery - Production of Docs

A
  • Request to other party to produce/copy or present for inspection docs
  • Answer to request in 30 days by indication of ID of info, location and/or allow for examination
  • Can be also to 3rd party via “duces tecum” subpoena
40
Q

Discovery - Physical/Mental Examination

A
  • When party places his own condition at issue of controversy (emo distress bc of physical condition is not enough to justify physical exam)
  • Gral rule: by agreement w/other party
  • Granted by motion when court finds “good cause”
41
Q

Discovery - Request for Admission of factual E

A
  • Deemed admitted if not affirmatively denied or object within 30 days
  • UNLESS court allows withdrawal or amendment
  • Request for pure admission of conclusion of law is not allowed
    • i.e. “Do you admit that X statute applies?”
42
Q

Discovery - Supplementation of responses to discovery requests

A

No gral duty to supplement UNLESS:

1) Prior responses discovered to be materially incomplete or incorrect
2) Need for correction or completion not satisfied yet by other discovery request

43
Q

Discovery - Abuses - Gral

A
  • Generates discovery dispute among parties (inconvenience not enough)
  • Parties must try to confer with other counsel and try to solve
  • If no success ask court for Protective or Compelling order and potentially for sanctions
  • Ultimate abuse = Spoliation
44
Q

Discovery - Abuses - Protective Orders

A
  • When other party seeks excessive discovery AND/OR protected info
  • Order to limit scope of discovery
45
Q

Discovery - Abuses - Sanctions - Gral

A
  • Court w/discretion to define severity
  • Attorney fees and costs from motion usually granted
46
Q

Discovery - Abuses - Sanctions - Types

A

1) Exclude E
2) Held party in contempt
3) Payment of costs and attorney fees
4) Dismissal w/prejudice for abuse by P*
5) Default Judgment for abuse by D* (ultimate sanctions- rare)

47
Q

Discovery - Abuses - Sanctions - Specific rule for W

A

W excluded if party fails to identify him before trial (bc of mandatory initial disclosures)

48
Q

Discovery - Abuses - Spoliation

A
  • As intentional destruction of relevant E
  • relates w/duty to preserve E when is CLEAR that opposing party has legal claim OR defense expectation EVEN before suit being filed
  • Applies also to electronic docs and for civil/criminal procedures
49
Q

Discovery - Abuses - Spoliation - Sanctions

A
  • Harsher sanction that other abuses
  • Court will consider level of culpability AND degree of prejudice to other party
  • Also Negative Inference
50
Q

Discovery - Abuses - Spoliation - Sanctions - “Negative Inference”

A
  • Evidence of destruction is admissible to suggest destruction of “smoking gun”
  • Opposing counsel may be allowed to have jury instruction inviting to such infered
51
Q

Motion in limine

A
  • TO exclude admissible evidence
  • Usually before trial begins, but also before E is presented
  • Later is possible by jury instruction to ignore E (but is hard to “unring the bell”)

Civil Procedure (15 decks)

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