Discovery Flashcards
Four initial disclosures?
Identities of persons who have discoverable info that you may use to support your claims or defenses.
Documents and things you may use to support your claims or defenses (copies or descriptions)
Computation of monetary relief and documents/ESI supporting it
Insurance coverage that might cover all or part of the judgmeny
Each party is required, at a time directed by the court, to identify which expert witnesses?
Those who may be used at trial
Does a party need to disclose the identity of consulting experts?
no
When and only when will facts known and opinions held by consulting experts be discoverable?
When circumstances are exceptional.
What two things must a party disclose with respect to expert witnesses who will be used at trial?
ID
Written report prepared by them
The expert’s written report must include what 5 things?
Opinions he will express
Bases for the opinions
Facts to be used to form the opinions
His qualifications
How much he is being paid
Can a party take the dep of an EW to be used at trial?
Yes
If a party plans to depose an EW, he must do what two things?
Subpoena
Pay
Earlier drafts of the EW report are/aren’t work product.
Are
Communications between the lawyer and the EW are/aren’t privileged.
Are
An EW qualifies as such if . . .
Because of his skill or training, may give opinion testimony AND is hired to render an opinion in this case.
What effect if a party fails to identify an EW and provide the required info? Exceptions (2)?
Can’t use UNLESS failure to do so if:
Justified; or
Harmless
No later than ___ days before trial, a party must give detailed info about trial evidence.
30 days
When can a party FIRST request discovery?
After the Rule 26(f) conference
Is a deponent required to review all relevant files and notes before the dep?
No.
A deponent must testify from . . .
Present recollection
Can you take the dep of a non party?
Yes, but subpoena.
To take the dep of a party, just serve this. . .
Notice of dep.
If you want a deponent to bring requested materials, file what?
Subpoena duces tecum
Unless a nonparty agrees, what is the farthest she can be required to travel?
100 miles from residence or employment.
If you want to take a dep of some employee, but your not sure who, what two courses of action?
Request ID of person in rogs and then depose them; or
Notice the dep and describe the matters for examination—employer must produce the right person.
Numerical limit on deps?
10
When can you depose the same person twice?
Court approval
Depositions cannot exceed one day of ___ hours unless the court orders or parties stipulate.
7
3 uses of dep at trial?
Impeach the deponent
Any purpose if the deponent is an adverse party
Any purpose if the deponent (regardless of whether a party) is unavailable for trial, unless the absence was procured by the party seeking to introduce.
What purpose can a dep be used for an adverse party?
Any
What purpose can a dep be used for a unavailable non-party?
Any
Can rogs be served on nonparties?
No.
How long does a person to respond with answers or objections to rogs?
30 days from service.
A person answering a Rog must answer how?
From info reasonably available to them.
Max number of Rogs to a party without court order or stipulation?
25
Does the 25 rog limit include subparts?
Yes
What if the answer to rogs can be found in business records and would be burdensome to find?
Give the records to the requesting party
At trial, you can/cannot use your own answers to rogs.
Cannot
At trial, you can/cannot use the other party’s answers to rogs.
Can
How long to respoind to a request to produce?
within 30 days of service.
Can you use RPDs on non parties?
Yes
If using an RPD on a non-party, what should you do?
Subpoena.
In what form is ESI to be produced in response to a RPD?
Form requested
In order to get a medical exam, what must you do?
Get court order.
To get a court order for a medical exam, you must show which 2 things?
Health is in actual controversy AND
Good cause
Who can be ordered to undergo a med exam? (2)
Party, or
Someone in the party’s control or legal custody
Who selects the doctor for a med exam?
Party seeking the exam
Is the examined party entitled to a copy of the med exam report?
Yes
Can requests for admission be served on nonparties?
No
If party fails to deny specifically or object to a request for admission within 30 days, what happens?
Deemed admitted.
When and only when can a responding party say that she does not know an answer to a question asked in a request for admission?
When she has made a reasonable inquiry and could not find enough info to admit or deny.
Every discovery request is signed by counsel certifying 3 things
It is warranted
It is not interposed for improper purpose
It is not unduly burdensom.
Is there a duty to supplement responses to discovery if something changes?
Yes
What is the scope of discovery?
Anything relevant to a claim or defense
Relevant discovery includes things that are . . .
Reasonably calculated to lead to the discovery of admissible evidence
T or F? If something is harmful to you, it needs to be disclosed in required disclosures regardless.
False
T or F? If something is harmful to you, it needs to be disclosed in ordinary discovery regardless.
True (usually)
P sues D for compensatory damages. P sends D discovery asking about D’s net worth. D objects and refuses to answer, arguing that the info is not relevant. P brings a motion to compel. Is the evidence of D’s net worth relevant here? Explain
No. Irrelevant to compensating P. P just needs to be made whole.
When and only when is a party’s net worth relevant?
Punitive damages
Explain the discovery doctrine of proportionality.
Even if something is relevant, the court has the authority to limit the discovery if the request is CUMULATIVE or if the BURDEN OUTWEIGHS the importance of the issue.
If the court finds that information requested is not reasonably accessible, but the other side shows good cause, what may the court do?
Order production and allocate the expense to the requesting party.
Work product is . . .
Material prepared in anticipation of litigation
Does WP need to be generated by a lawyer?
No.
WP can be generated by a lawyer, but a ____ or a ____ ____
Party
Party rep.
Qualified WP can be discoverable IF what two things are true?
Substantial need; and
Not otherwise available.
Four categories of ABSOLUTE WP?
Mental impressions
Opinions
Conclusions
Legal Theories
If D has P write out and sign a statement in anticipation of litigation, is that statement protected as WP is P tries to discover? Expain
No. Party has a right to ask for its own statements.
If you withhold discovery based on privilege or WP, you must do what 2 things?
Claims the priv EXPRESSLY
Describe the materials in detail.
What is a privilege log?
A document that lists the materials protected by date, author, recipient, and privilege or protection claimed. It must be in enough detail to allow the judge to determine whether the material is protected.
If you inadvertently produce privilege material, you should do what?
What must the other party do?
Notify the other party right away.
Other party must return, sequester, or destroy pending decision by the court whether there has been a waiver.
If a person tings that a discovery request is improper, what can she do?
Move for a protective order
To get a protective order, what must the party certify?
That she tried in good faith to get the info without court involvement – that she asked the other side to meet and confer.
If the court issues a protective order, it can do one of three things
Deny discovery
Limit discovery
Permit discovery on certain terms.
If a party has only partially responded to a discovery request, a party can only get sanctions if they do these two steps:
Move for an order compelling discovery PLUS costs of bringing the motion
If party violates that order, then RAMBO sanctions plus costs (an atty fees re the motion) AND possible contempt for violating the court order.
RAMBO sanctions are available only when the other party . . .
Has violated a discovery order.
If a party has failed entirely to respond to a discovery request, then you can file for what?
RAMBO sanctions
If a party has failed entirely to respond to a discovery request and you seek RAMBO sanctions, do you need an order compelling answers?
No.
What five choices of RAMBO sanctions for a judge?
Establishment order (establishes facts as true)
Strike pleadings of the disobedient party (as to issues of discovery)
Disallow evidence from the disobedient party (as to issues of discovery)
Dismiss the plaintiff’s case (if bad faith shown)
Enter default judgment against D (if bad faith shown)
If a party fails to produce ESI because it was lost in the good faith, routine operation of an electronic info system, then sanctions only when?
Exceptional case
2 types of discovery for parties only?
Rogs
Requests for Admission
