Discovery Flashcards
Rules that deal wit discovery
Rules 26- 37
Does discover able information have to be admissible at trial?
NO
- relevant information does not have to be admissible at trial
- material is discoverable so long as it appears “reasonably calculated to lead to the discovery of admissible evidence.”
- need not be admissible at trial if the discovery appears reasonably calculated to lead to discovery of admissible evidence
What is discoverable?
Parties may obtain discovery regarding any NON-PRIVILEGED matter that is relevant to any party’s claim or defense..
What may the Court do with discovery?
(Expand) For good cause, the court MAY order discovery of any matter relevant to the subject matter involved in the action.
(Limit) Court may limit discovery if unreasonably cumulative or duplicate, obtainable from another source more convenient, less burdensome, or less expensive, or the burden or expense of discovery outweighs the benefit.
When can the court limit discovery?
Court can limit discovery if
1) unreasonably cumulative or duplicative,
2) obtainable from another source more convenient, less burdensome, or less expensive, or
3) the burden or expense of discovery outweighs benefit
FRCP 26(a) Duty to Disclose; General Provisions Governing Discovery
(a) Required Disclosures
1) Initial Disclosure
requires parties to exchange categories of info that the disclosing party MAY use to support its CLAIMS or DEFENSES
-Parties have to exchange four initial mandatory disclosures within 2 weeks of scheduling conference without being requested by opponent:
4 initial required disclosures
- names and locations of witnesses used to support claim/defense
* if lawyer doesn’t disclose witness and failure was not substantially justified and was harmful, then by FRCP37(c)(1) court should order payment of expense, inform jury of failure, impose appropriate sanctions
* not experts because ex. DR must examine patient, DR has no discoverable info at the beginning of the case - description and locations of documents may use to support claim/defense
* exception, if sole use of evidence is for impeachment purely/solely impeachment – cant go to defenses too – judges don’t like that - computation of damages
- copies of insurance “if liability to satisfy a potential judgment”
- Rule provides exception if sole use of evidence is for impeachment – but could be completely prohibited form using the photo if they don’t
6 different devices parties may use to obtain information during discovery
1) Required (Initial) Disclosures
2) Depositions
3) Interrogatories
4) Requests for Production: Documents, Things, Land and ESI
5) Physical and Mental Examinations
6) Requests for Admissions
Depositions
can be oral or written, involve taking the testimony of a witness prior to trial to obtain discoverable information through testimony
Interrogatories FRCP 33
questions posed by one party to another in order to elicit informative responses
Role of interrogatories: identify persons and documents in possession of other side
Drawbacks:
-parties MUST seek permission before exceeding 25 questions
- and they MAY ONLY BE SENT TO A PARTY, not a nonparty
- questioner cannot follow up evasive answers, so rarely go beyond routine info.
33(d) if burden is substantially the same or less, the party asking for interrogatory must do it.
1) specify the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could and
2) giving the interrogating part a REASONABLY opportunity to examine and audit the records and to make copies
Requests for Production: Documents, Things, Land and ESI
can be served on parties (or non parties) in order to compel the production of certain documents that pertain to topical areas of interest
Physical and Mental Examination
when a party’s physical or mental health is at issue in dispute, parties can use physical and mental examinations to obtain relevant information about a party and their claims.
FRCP 36 requests for admissions
are statements served on another party with the request that the statements be specifically admitted or denied;
any admissions in this process will be conclusive evidence at trial with regard to those matters admitted.
- best used to eliminate essentially undisputed issues
shares 4 characteristics with interrogatories
1) usable only against parties
2) in writing
3) cheap
4) and limited usefulness in most litigation
- if party does not respond, you can get the court to compel answers under FRCP 26(b)(2)
Difference between depositions an interrogatories
depositions are live
-can depose anyone, not just parties
But supena them under FRCP 45
interrogatories are written not in person
-cannot be to people not a party in litigation
Requests for Production: Documents, Things, Land and ESI
FRCP 34
enables discovery of documents and any tangible item, land, and ESI, does not limit number of documents a party may make
Procedure for requesting Documents, Things, Land and ESI for a PARTY
For a Party- send a FRCP 34 request, specifying documents sought
Procedure for requesting Documents, Things, Land and ESI for a NON-Party
FRCP 34 requests served with SUBPOENA under FRCP 45 (command to produce docs)
Contents of a request for Production of Documents, Land, Things, and ESI
1) must describe with REASONABLE particularity each item or category of items to be inspected,
2) must specify REASONABLE time, place, and manner for the inspection and for performing the related acts; and
3) may specify the form or forms in which electronically stored information is to be produced.
