Discovery Flashcards
What is the scope of discovery?
Matters, not privileged, which are relevant to the subject matter involved in the pending action.
Discovery can be done in the following methods: oral/written depos, written interrogatories, production of documents, inspection of land or other property, physical or mental exam, and requests for admissions.
Within 60 days after service, the P must provide to other parties a computation of damages claimed, making available for inspection and copying all documents or other material not privileged on which such computation is based.
Oklahoma does not mandate disclosure as much as the Federal Rules. However, a party may use interrogatories to learn the identity of all expert witnesses whose testimony the opposing party plans to use at trial, along with written reports from all experts detailing their opinions.
What rules govern pretrial conferences?
Pretrial conferences are mandatory in all civil actions except:
- where the D is in default;
- where the D has waived his right to appear or plead;
- in an action for recover of money or personal property where the amount in controversy is less than $5,000;
- in actions under the small claims procedure; and
- where a jury has been waived.
The court may schedule a conference and enter a scheduling order which establishes the time:
- to join other parties and to amend pleadings;
- to file and hear motions;
- to complete discovery;
- to have a medical exam of a party;
- for conferences before trial and trial;
- to file proposed findings of fact and conclusions of law; and
- for accomplishing any other matters appropriate in the circumstances of the case.
What rules govern pretrial orders?
Following any pretrial conference, the court will enter an order reciting the action taken, which will control the subsequent course of action unless later modified. An order following the final pretrial conference may be modified only to prevent manifest injustice.
Pretrial orders must include the following information:
- the results of the conference and advice to the court regarding the factual and legal issues;
- all questions of law in the case;
- details of material evidence to be presented in the case;
- all exhibits, which must be marked, listed, and identified;
- a list of witnesses with short synopsis of testimony and not additions without a showing of good cause;
- the grounds for any objection to an exhibit, which must be specifically stated; and
- the estimated trial time and date.
What is a discovery conference?
It is one in which all parties meet prior to trial to discuss claims and defenses, the possibility of settlement, and to develop a proposed plan for discovery.
What rules govern depositions?
Depositions
Parties may depose any person from whom relevant information can be gathered.
Leave of court is required if the deponent is imprisoned or unless the parties have stipulated otherwise in writing, if:
- the deponent has already been deposed in the case; or
- the deposition is scheduled within 30 days of service of the summons and petition upon any D.
A witness may be deposed in the county of his residence, a county adjoining the county of his residence, or the county in which he was located when the subpoena was served on him.
A party may only be deposed in the county of his residence, a county adjoining the county of this residence, the county in which he was located when the subpoena was served on him, the county where the action is pending, or the county where he was located when the notice was served.
Before use at trial, the party against whom it is used must have been present, represented or had reasonable notice of the taking of the deposition.
A deposition may be used to impeach the testimony of deponent, and it may be used for any purpose if the deposed witness was an officer, director, or managing agent of a public or private corporation, partnership or association, or government agency at the time the deposition was taken. A deposition may be used for any purpose if the court finds that the witness:
1. is deceased;
2. does not reside in the county where the action is pending;
3. is absent, and it appears that his absence was procured by the party offering the deposition;
4. is unable to attend or testify because of age, illness, infirmity, or imprisonment;
5. has not been subpoenaed, despite the diligent efforts of the party offering the deposition; or
6. is an expert witness
The deposition may also be used for any purpose if the court finds exceptional circumstances as to make it desirable.
Subpoena powers of the state are valid only within the state.
What rules govern interrogatories?
A party may serve upon another party written interrogatories.
They must be answered or objected to individually within 30 days. However, a D is given 45 days following service of the summons and petition to respond.
A party may not serve more than 30 written interrogatories, unless the court so permits.
What rules govern production of documents?
Any party may request another party to produce documents or other relevant items.
Such requests must specify a reasonable time and place for production or inspection.
A party must answer or object to the request to produce within 30 days of service.
A party many not serve more than 30 requests for production per party, although parties may agree in writing to permit a reasonable number of additional requests.
What rules govern physical and mental examinations?
When a mental or physical condition of a party is in controversy, the adverse party may request that the party submit to a physical or mental examination by suitably licensed or certified examiner. The request must be served on every party.
The other party may object by setting reasons why the mental or physical condition is not in controversy or by applying for a protective order.
The request must specify the time, place, manner, conditions, and scope of the examination and the examiner by whom it is to be made.
What rules govern requests for admission?
Any party may request the admission of any relevant fact or opinion, or the genuineness of any document, at any time after service of the summons and complaint.
A party may not serve more than 30 requests for admission.
All such requests are deemed to be admitted unless answered or objected to within 30 days after the service of the request. A D has 45 days following services fo the summons and petition, or 30 days after service of the request, to respond, whichever is longer.
What sanctions are available?
A party failing to comply with a discovery order may be subject to sanctions by the court. Sanctions may take the following forms:
- establishes as facts those things for which the discovery order was made;
- strikes pleadings;
- stays further proceedings until the disobedient party complies with the discovery order;
- dismisses parts or all of the action;
- renders default judgment against the disobedient party;
- holds a disobedient party in contempt; or
- awards attorneys’ fees and reasonable expenses.
