Discovery Flashcards
Scope of discovery
any non-privileged matter deemed to be relevant to the subject matter of the case
Do matters sought in discovery need to be admissible?
No, as long as they will likely lead to admissible evidence
Work product
documents, and other tangible things, prepared in anticipated of litigation
Factual work product
Documents and other tangible things relating factual information pertaining to the client’s case.
Generally, NOT discoverable, but exceptions apply.
Opinion work product
Attorney’s mental impressions relating to a client’s case.
NEVER discoverable
Factual work product may only be discovered upon a showing of:
- substantial need (like a smoking gun)
- that you can’t get without undue hardship.
Need BOTH
Work product that a party intends to use at trial for impeachment purposes or otherwise:
NOT subject to the work-product protection
Can you depose anyone?
Yeah - any party may depose any PERSON (could be non-party) by giving all parties notice of the time and place and opportunity to attend
Do you have to tell people if the deposition will be videotaped?
Yeah, it has to be in the notice of depo
Notice of deposition
Reasonable notice of a depo MUST be given to all parties
Notice requirement for depo - parties
Only need notice - don’t have to file something with the court
Notice requirement for depo - non-parties
To compel a non-party’s presence at a depo, need to be served with a subpoena
Subpoena duces tecum
A request for documents for inspection or copying.
A non-party is allowed 30 days to assemble the docs
For an oral deposition - A witness may review the transcript and modify the form or substance of their testimony.
True or False?
TRUE.
Like, if the stenographer got it wrong.
Objections that MUST be raised at a depo, or they’re waived
Defects in the notice of the depo
Defects in the qualifications of the court reporter
Any error or irregularity in the manner of taking the depo
Depositions immediately after commencement
The π must obtain leave of court to take a depo within 30 days of service of process of the initial pleading on a party
Depositions prior to commencement
A depo MAY be taken before an action is filed if the court is satisfied that the testimony may prevent a failure or delay of justice
(like the deponent is close to death, and they were the only witness to the incident)
A deponent may only be properly advised NOT to answer a question in these three circumstances:
- to preserve a privilege
- the scope of the deposition (if it’s too broad, not relevant)
- a witness may move to terminate or limit the depo if it’s being conducted in bad faith
Depo transcripts can be used for 3 specific reasons:
- to proffer testimony
- to impeach
- to refresh memory
A depo transcript can be used as substantive evidence in a trial IF:
- the deponent was an adverse party or expert,
OR - the deponent is unavailable bc they are: dead or ill, or old or can’t travel, more than 100 miles from courthouse, they’re outside of FL
If only part of a depo is offered by a party, any adverse party may compel:
the introduction of any other part of the depo that should be considered in fairness
Interrogatories are written questions served by:
ONE PARTY TO ANOTHER. Can be served on non-adverse parties (someone on the same side of the v as you are), but they are JUST FOR PARTIES.
Interrogatories are limited to:
30 questions, including all subparts.
Can get more for good cause
Interrogatories - objections
Have to state objections in response, otherwise will be waived.
