Discovery Flashcards
Scope of Discovery - Standard
Anything relevant to claim or defense in the pleading & must be proportional to needs of the case
- Privileged Material not dicoverable
Discovery - Relevance
Party can discover inadmissible evidence if relevant and proportional to needs of case
Relevant - it is likely to make any fact in dispute more or less likely to be true, regardless of whither it is admissible
Scope of Dicovery - Proportional
Proportional to needs of Case
- Party can’t refuse discovery by making boilerplate objection that its not proportional
Scope of DIcovery - Work Product
Material prepared in anticipation of litigation
- Absolute protection from discovery by opposing counsel (Work Product Doctrine)
- Mental Impressions
- Opinions
- Conclusions
- Legal Theories
- Witness Statements May be Discovered if there is substantial need & info isn’t otherwise avail.
Scope of DIscovery - Objections
Objections must be Stated with Specificity
- the grounds for objection & whether any responsive materials are being withheld
Required Discovery
Must be produced even if opposing P doesn’t explicitly request the info
Required Discovery - Initial Disclosure
Initial Disclosures - Within 14 days of rule 26(f) conference
- List of relevant witnesses - name and address (if known) and #
- Documents supporting claims or defenses - copies or electronically stored information
- Computation of Damages
- Relevant Insurance Policy
- any insurance agreement where insurance business may be liable to:
- satisfy all or part of possible judgment in the action or
- to indemnification or reimbursement for payments made to satisfy the judgment
- any insurance agreement where insurance business may be liable to:
Required Discovery - Pretrial
Must give detailed info about trial evidence no later than 30 days b/f trial including:
- documents and
- ID of witnesses to testify
When are discovery tools available?
Only after Rule 26(f) Conference
Depositions
Witnesses out of court testimony that is reduced to writing for later use in court or for discovery purposes.
- Deponent gives sworn oral answers to questions by counsel
How many depositions is each party entitled to ?
10 but the court may grant more
Deposition - Non party
Not required to attend without subpoena
Depositions - Party
No subpoena required
- Notice of deposition properly served on a Party is sufficient to compel his appearance at the deposition
Deposition - Limitations
- Time Limit
- Can’t exceed 1 day of 7 hours
- BUT ct. must allow additional time if needed to fairly examine deponent, another person, or any other circ.
- No duplicate depositions - can’t depose same pers. twice
- Max 100 Miles from residence or place of business for nonparty
Depositions - Experts
Trial expert - may be deposed (expert whose opinion may be presented at trial)
Consulting expert - can NOT be deposed (expert retained in anticipation of lit. but wont testify at trial (Unless exceptional need)
How can a deposition be used at trial ?
- Impeach deponent (Inconsistent testimony)
- Any Purpose if deponent is an adverse party or deponent is unavailable at trial
Interrogatories
Questions written by 1 P and sent to another (Can never use against non P)
Interrogatories - Requirements
- Must respond or object within 30 days - answers must be in writing, under oath
- Limit of 25 - can’t serve more then 25 questions without ct. approval or stipulation by parties
- Duty to reasonably investigate and find out the answers to the questions
- If answer is in business records and would be burdensome to find, the answering party can hand over records instead of going through the records herself
Request to Produce Physical Material or Permit Entry onto Property for Inspection
- Nonparty - Subpoena required
- Must be described with reasonable particularity
A party served with a request for production has how many days to respond?
Must respond within 30 days of service
- either that material will be produced or stating objection to request
Request to Produce - Early Request to Produce
Early request to produce
- b/f 26(f) conference, may serve only after 21 days of service of summons and complaint
- Responding party has 30 days after 26(f) Conf. to respond instead of 30 days after service of request
How is a request for a mental or physical examination made?
Court order required, will be issued on show of:
- Health in actual controversy, AND
- Good cause Exists
Request for Admission
Request by one party to admit truth of any discoverable matter.
- Commonly used to authorize documents
- Can’t be used against non party
- Must respond within 30 days
- Admit
- Deny - Fail to deny is an admission BUT party can amend if failure isn’t done in bad faith
- Party may claim lack of information - only if made a reasonable inquiry
When must Expert discovery disclosures occur?
Absent stipulation/order, must be made at least 90 days b/f date of trial
Duty to Supplement
Party has affirmative duty to correct material mistake or admissions in required disclosures, interrogatories, Request to produce, and request for information
Discovery - Procedure
Procedure (aka separate Certification) - Rule 11 does not apply to discovery
- Every request must be signed by attorney - Signature certifies:
- warranted
- No improper purpose, And
- Not unduly burdensome
- Substantive answers signed under oath
Discovery - Enforcement
- Protective Order
- Sanctions
Protective Order
P that gets request for discovery objects on basis that its overburdensome or involves trade secrets
Discovery Enforcement - Sanctions
P seeking sanctions must prove to court that she made GF effort to get info w/out court involvement
Enforcement - Sanction
Partial Violation
(Minimal Sanctions) P receiving discovery request answers some but objects to others and objections aren’t upheld by court
- Motion to Compel - If P fails to comply with order compelling discovery there is a total viol, AND
- Sanctions for total violation and recovery costs available
Enforcement - Sanction
Total Violation
(Severe Sanctions) P receiving request completely fails to respond
- Recovery of costs, AND
- other sanctions available when total violation
- Contempt of court (except order to submit to phys./mental exam)
- Establishment order - matters or designation of facts take as established for purpose of the action
- Strike Pleadings in whole or in part
- Disallow Evidence - prohibit disobeying P from supporting or opposing designated claims or defenses or from introduction of designated matters into evidence
- Dismiss Plaintiffs case in whole or in part - BF required
- Enter default judgment against disobedient party - BF required
Enforcement - Failure to Preserve Electronically Stored Information
Failure to Preserve Electronically Stored Info in the anticipation or conduct of litigation
- lost b/c failed to take reasonable steps to preserve & can’t be restored or replaced through add. disc.
- Prejudice to another P - May order measures no greater than nec. to cure prejudice
- Party acted with intent to deprive another party of info’s use in litigation ct. may:
- presume lost info was unfavorable to P,
- Instruct jury that it mat or must presume unfavorable to P, OR
- Dismiss action or enter default judgment
What must expert discovery disclosures contain?
- Identity - Must ID expert who must be used at trial
- Unless, Limited purpose expert only 30 days b/f date set for trial
- Written Opinions - Must include data by experts and their qualifications
- list of publications authored in previous 10 years
- List of other cases
- Compensation- Statement of comp. to be paid for the study & testimony in the case
When must pretrial discovery disclosures be made?
30 days b/f trial
What must pretrial discovery disclosures contain?
- List of the witnesses she expects to call at trial
- The witness she may call if the need arises
- A list of witnesses whose testimony will be presented through a deposition or deposition transcript
- A list of documents or phys. evidence she expects to present
What can not be asked for in discovery?
Info. that is:
- Irrelevant
- violates priv.
- is considered work product or causes an undue burden
When is info. pertaining to experts undiscoverable?
When the expert is a non-testifying expert unless there is an extraordinary need to get the info.
What information is discoverable for a testifying expert?
- Info related to the final report
- Co. relating to compensation for testimony
- Co. relating to the data provided by the attorney to the expert
- co. relating to any assumption the attorney asked the expert to make in developing the expert opinion
