Discovery Flashcards
Duty of Disclosure
Rule 26 requires parties to disclose, without being asked, certain information “then reasonably available”
Required Disclosures
(1) Initial disclosures; (2) disclosure of expert testimony; (3) pretrial disclosures
Initial Disclosures timing
Must be disclosed WITHIN 14 DAYS of the Rule 26(f) conference
Initial disclosures
(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
Failure to include initial disclosure
if fail to disclose, can’t use in the case unless if failure to disclose it was substantially justified or harmless
Expert Witnesses
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
Pretrial Required Disclosures
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
Requesting discovery
Unless provided otherwise, party can first request discovery after the Rule 26(f) conference
Depositions and use at trial
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
Deposing a non party
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
Deposing a party
no need to subpoena. Merely serve a NOTICE OF DEPOSITION
Subpoena Duces Tecum
requires deponent to bring requested materials with her to thd eposition
Limits on Depositions
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
Interrogatories
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)
Burdensome interrogatory
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
Interrogatory use at trial
May not use your own answers to an interrogatory at trial. Otherwise, free game.
Requests to Produce
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
Medical Examinations
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.
Request for Admission
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
Duty to Supplement
Parties have a duty to supplment their response to discovery requests in light of new circumstances
Must police yourself
Scope of discovery
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
Doctrine of Proportionality
Court always has authority to limit discovery if request is cumulative or if its burden outweighs the importance of the issue
Privilege
May object to discovery on the basis of a privilege
Work Product
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)
Absolute work product
Following may never be discovered: an attorney’s mental impressions, opinions, conclusions, and legal theories
Asserting privilege or work product
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
Protective Order
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
Partial response to discovery request
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)
No response to discovery request
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)
