Discovery Flashcards
Discovery - Gral - Elements
- 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
Discovery - Methods - PRIDE (5) (post mandatory initial disclosures)
1) Production of docs
2) Requests for admission
3) Interrogatories
4) Depositions
5) Examinations (physical and mental)
Discovery - Methods - PRIDE - Special Rules for response after discovery request
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)
Discovery - Timing and sequence
- Gral rule: any speed/order after Mandatory Discovery Conference
- but 14 days for mandatory disclosure
- court or statute can order differently
Discovery - Mandatory Discovery Conference
- Btwn counsel
- Binding agreement on schedule for discovery
- Start of 14 days for mandatory disclosure
Discovery - Ex-parte Informal Contact
- 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
Discovery - Scope - Gral
- 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
Discovery - Scope -Restriction - Protective Order
- Court can order it to bar/limit discovery
- DUOP situations of request - avoid “fishing” for E
Discovery - Scope -Restriction - Protective Order - DUOP grounds
1) Duplicative
2) Unduly burdensome
3) Oppressive
4) Protection of secret process/formula/software code/ other trade secrets
Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - Reqs for discoverable
WP prepared for litigation is NOT discoverable UNLESS:
- only source +
- “substantial need”
Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - “Only Source” Requirement
No justification of discovery when statement is obtainable as result of deposition
Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - “Substantial need for court” Requirement
Party needs to show to court:
- Importance of info to their case
- Difficulty of obtaining equivalent info from other sources
Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - Specific Restrictions to application (hence possible discovery) (3)
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
Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - Content Protected
- Docs - Tangible items
- i.e. investigative report, W statements, research notes, photos, videos - EVEN if not prepared by attorney but requested by him
Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - “Preparation in anticipation of litigation” Requirement
- broad definition: “Likelihood of litigation” is enough (even if not yet commenced)
- Right not to be discovered BUT also duty not to destroy them
Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - Difference with Attorney Client Privilege
- 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)
Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - Similarity with Attorney Client Privilege
Both can be waived
Discovery - Scope - Insurance Availability
Mandatory disclosure of insurance policy that might cover all or part of judgment
Discovery - Scope - FOIA
Allows for discovery when suing govt entity
- WP and other privileges still apply
Discovery - Experts - 3 possible types of discovery
1) As Expert W
2) As consultant (not as W)
3) As “Fact Expert” aka “Occurrence Expert”
Discovery - Experts W - Disclose obligations (5)
1) Subject matter
2) Substance of opinion
3) Grounds of opinion (factual basis and data used)
4) Compensation
5) Qualifications
Discovery - Experts W - Gral
- Expert must be formally depose (no ex-parte contact possible)
- Failure to comply will prevent from giving testimony and be subject sanction
Discovery - Experts as consultant - Gral
- 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
Discovery - “Fact Expert” aka “Occurrence Expert” - gral
- W on basis of personal involvement that otherwise would qualify as expert W
- treated as lay W
- no discovery protection
Discovery - “Fact Expert” aka “Occurrence Expert” - Test
“Were opinions obtained for the specific purpose of preparing for litigation?”
Discovery - Mandatory Initial Disclosure - gral
- Even if not requested by opposing party aims to limit delay tactics
- Within 14 days from initial discovery conference
Discovery - Mandatory Initial Disclosure - Content (5 + 1+ 1)
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)
Discovery -Depositions - Gral
- 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
Discovery -Depositions - Subpoena
- 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
Discovery -Depositions - “Duces Tecum” Subpoena
Deponent is also compelled to bring along all necessary documents
Discovery -Depositions - Actual deposition
- Under oath - W reviews transcription and correct pre-official publication
- Up to 7 hours per day
Discovery -Depositions - Conduct During Deposition
- 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
Discovery -Depositions - Use of deposition transcript as E on trial as exception to hearsay
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
Discovery -Depositions - Use of deposition as E on trial as exception to hearsay - Party deposition
- Used in place of live testimony
- Exception hearsay: when used as opposed party admission
Discovery -Depositions - Use of deposition as E on trial as exception to hearsay - Non- Party deposition
- Exception to hearsay allowed to show prior consistent or inconsistent items when acting as W at trial
Discovery - Interrogatories - Gral
- 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
Discovery - Interrogatories - Procedure
- Request must be answered within 30 days of service
- Can be included as part of discovery request
Discovery - Interrogatories - Written Supplementation of Responses
- Mandatory when answering party notices discoverable matter or additional experts expected to testify
- Test: Will new info lead to more discoverable information?
Discovery - Production of Docs
- 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
Discovery - Physical/Mental Examination
- 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”
Discovery - Request for Admission of factual E
- 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?”
Discovery - Supplementation of responses to discovery requests
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
Discovery - Abuses - Gral
- 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
Discovery - Abuses - Protective Orders
- When other party seeks excessive discovery AND/OR protected info
- Order to limit scope of discovery
Discovery - Abuses - Sanctions - Gral
- Court w/discretion to define severity
- Attorney fees and costs from motion usually granted
Discovery - Abuses - Sanctions - Types
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)
Discovery - Abuses - Sanctions - Specific rule for W
W excluded if party fails to identify him before trial (bc of mandatory initial disclosures)
Discovery - Abuses - Spoliation
- 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
Discovery - Abuses - Spoliation - Sanctions
- Harsher sanction that other abuses
- Court will consider level of culpability AND degree of prejudice to other party
- Also Negative Inference
Discovery - Abuses - Spoliation - Sanctions - “Negative Inference”
- Evidence of destruction is admissible to suggest destruction of “smoking gun”
- Opposing counsel may be allowed to have jury instruction inviting to such infered
Motion in limine
- 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”)
