Discovery

Question 1

Duty of Disclosure

Answer 1

Rule 26 requires parties to disclose, without being asked, certain information “then reasonably available”

Question 2

Required Disclosures

Answer 2

(1) Initial disclosures; (2) disclosure of expert testimony; (3) pretrial disclosures

Question 3

Initial Disclosures timing

Answer 3

Must be disclosed WITHIN 14 DAYS of the Rule 26(f) conference

Question 4

Initial disclosures

Answer 4

(1) Names, addresses, telephone numbers, and subject matter of INDIVIDUALS that you MAY USE to SUPPORT your claims or defenses
(2) Copies or description of DOCUMENTS, electronic info, and tangible things that you may use to SUPPORT claims or defenses
(3) A COMPUTATION of damages claimed and copies of materials upon which the computation is based; and
(4) copies of INSURANCE AGREEMENTS under which an insurer might be liable for all or part of the judgment

Question 5

Failure to include initial disclosure

Answer 5

if fail to disclose, can’t use in the case unless if failure to disclose it was substantially justified or harmless

Question 6

Expert Witnesses

Answer 6

At a time directed by the court (or 90 DAYS before trial in absence of other directions), each party must identify expert witnesses “who MAY be used at trial”

Must disclose identity of EW and a WRITTEN REPORT prepared and signed by the EW stating her qualifications, opinions to be expressed, basis for those opinions, and compensation

Upon disclosure, party may depose EW, but must subpoena to compel attendance and pay a reasonable fee per hour

Question 7

Pretrial Required Disclosures

Answer 7

NO later than 30 DAYS before trial, must give detailed info about trial evidence, including identity of witnesses to testify LIVE or by DEPOSITION, and documents and things to be introduced at trial

Question 8

Requesting discovery

Answer 8

Unless provided otherwise, party can first request discovery after the Rule 26(f) conference

Question 9

Depositions and use at trial

Answer 9

Live testimony in response to questions by counsel or pro se parties. Can be oral or written. Under Oath. Recorded by sound or video and a transcript may be made.

May be used at trial to (1) impeach; (2) for any purpose if adverse party; (3) any purpose is deponent is unavailable for trial, unless absence is procured by party seeking to introduce the evidence

Question 10

Deposing a non party

Answer 10

May depose nonparty, but should subpoena to compel attendance

If no subpoena, no reason to attend

May not be forced to travel more than 100 miles from her residence or place of employment to attend deposition

Question 11

Deposing a party

Answer 11

no need to subpoena. Merely serve a NOTICE OF DEPOSITION

Question 12

Subpoena Duces Tecum

Answer 12

requires deponent to bring requested materials with her to thd eposition

Question 13

Limits on Depositions

Answer 13

Can’t take more than 10 depositions or depose the same person twice without court approval or stipulation

Time cannot exceed 7 hours otherwise stipulated or ordered

Question 14

Interrogatories

Answer 14

Written questions that must be answered in writing, under oath

Can only be sent TO PARTIES. Limited to 25 actual questions (including subparts), unless otherwise ordered or stipulated

Party has 30 DAYS FROM SERVICE to respond with her answers or objections to the interrogatory

Must answer with info reasonably available and have to do your “homework” (note: different than deposition, which merely requires present recollection)

Question 15

Burdensome interrogatory

Answer 15

If answers can be found in business records and it would be burdensome to find the answers, responding party may allow requesting party to have access to records as a substitute

Question 16

Interrogatory use at trial

Answer 16

May not use your own answers to an interrogatory at trial. Otherwise, free game.

Question 17

Requests to Produce

Answer 17

Request that someone make available for review and copying documents or things, including ESI, or to permit access to property to inspect, measure, etc.

Party must respond in writing within 30 DAYS OF SERVICE, stating that the material will be produced or asserting objections

Can be served on parties OR nonparties

Question 18

Medical Examinations

Answer 18

MUST GET A COURT ORDER (only type that requires court order)

Must show GOOD CAUSE and that the person’s health is in ACTUAL CONTROVERSY

Limited to a PARTY or someone in the party’s custody or legal CONTROL (narrow, employer/employee rltnsp is outside the scope)

NOTE: party seeking the order gets to choose the licensed person to perform the exam. But, other side gets access to the exam documents.

Question 19

Request for Admission

Answer 19

Written request that someone admit things. Limited to PARTIES ONLY

Have 30 DAYS UPON SERVICE to respond. If fail to deny or object in timely fashion, request is deemed admitted

Party may state that she does not know the answer only if she states she made a reasonable inquiry and cannot find info to admit or deny

Often used to authenticate documents

Question 20

Duty to Supplement

Answer 20

Parties have a duty to supplment their response to discovery requests in light of new circumstances

Must police yourself

Question 21

Scope of discovery

Answer 21

can discover anything relevant to a claim or defense

Relevance includes things that are REASONABLY CALCULATED to lead to the discovery of admissible evidence

Broader than admissible for evidence

Question 22

Doctrine of Proportionality

Answer 22

Court always has authority to limit discovery if request is cumulative or if its burden outweighs the importance of the issue

Question 23

Privilege

Answer 23

May object to discovery on the basis of a privilege

Question 24

Work Product

Answer 24

Work product of a party OR HER REPRESENTATIVE, made in ANTICIPATION of litigation is generally NOT discoverable

May be discoverable if party shows a SUBSTANTIAL NEED and NOT OTHERWISE AVAILABLE (undue hardship in obtaining the info elsewhere)

Question 25

Absolute work product

Answer 25

Following may never be discovered: an attorney’s mental impressions, opinions, conclusions, and legal theories

Question 26

Asserting privilege or work product

Answer 26

Party must claim a protection EXPRESSLY and describe the documents in a manner that will enable other parties to assess the applicability of the privilege or work product

Question 27

Protective Order

Answer 27

may be obtained to limit the nature and scope of an examination

Often used if a discovery request is subject to annoyance, embarrassment, undue burden, or expense

Question 28

Partial response to discovery request

Answer 28

Requesting party must make a motion to compel answers and court will decide whether objections are legitimate

Sanctions: party seeking sanctions must first certify that she made a good faith effort to confer with the other side to obtain materials without court order

TO get sanctions, must (1) make a motion to compel the party to complete the discovery request, plus costs of bringing the motion; and (2) if the party violates the motion to compel, RAMBO sanctions and possibility of contempt (except for refusal to submit to medical exam)

Question 29

No response to discovery request

Answer 29

If a party fails to provide ANY answers to interrogatory or attend deposition, RAMBO SANCTIONS

(establish facts sought as true; strike pleadings; disallow evidence from the disobedient party; dismiss P’s case or enter default judgment if bad faith shown)