Discovery Flashcards
Duty of Disclosure
Rule 26 requires parties to disclose, without being asked, information to other parties about their case.
Rule 26 what’s required
Must disclose all information then reasonably available that is not privileged or protected as work product.
Party not relieved from obligation just because she has failed to complete her investigation.
Initial Disclosure
Without waiting for a discovery request party must provide
- Contact information of individuals likely to have discoverable info disclosing party may use to support its claims or defenses
- Documents, esi, tangible things in disclosing party’s possession or control that disclosing party may use to support its claims or defenses (unless only to be used for impeachment)
- Computation of damages and copies of materials claims based on
- Insurance agreements
Disclosure of expert testimony
Party must disclose
- Identities of experts expected to be used at trial
- If experts specifically retained to provide expert testimony, or if experts duties as the party’s employee regularly involve giving expert testimony, disclosure must be accompanied by a report prepared and signed by each expert
- Stating expert qualifications, the opinions to be expressed, and the basis for those opinions, along with list of cases where expert testified, her compensation.
OTHERWISE
- Identity
- Subject matter on which expert expected to present evidence
- Summary of facts and opinions
Pre-trial Disclosure
At least 30 days before trial party must disclose
- Witnesses expects to call
- Witnesses she will call if need arises
- Witnesses whose testimony will be presented by means of deposition and transcripts of pertinent deposition
- List of documents or exhibits
Impeachment evidence need not be disclosed
ESI
Parties must discuss discovery and preservation of ESI.
ESI need not be produced if responding party identifies it as from a source not reasonably accessible because of undue burden or cost.
Opposing party may motion to compel
Destruction of ESI
If disclosing party acted with intent to deprive discovering party of information court may
- Presume lost information was unfavorable to the party
- Instruct the jury that it may or must presume the information was unfavorable
- Dismiss action or enter default judgment
Scope of Discovery
Discovery may be had of any non-privileged matter that is relevant to any party’s claim or defense and is proportional to the needs of the case.
Considerations:
Importance of issues at stake
Amount in controversy
Parties relative access to information
Parties resources
Whether Burden and expense outweigh benefits
Work Product
Work product made in anticipation of litigation, discoverable only upon showing of substantial need and to avoid undue hardship.
Duty to supplement
Party must supplement required disclosures and prior responses to interrogatories, requests for production, or requests for admissions if she learns that the information disclosed was materially incomplete or incorrect and new info has not been made known to the other party.
Motion for order compelling disclosure
Party may seek an order compelling disclosure.
Movant must certify that he conferred or attempted to confer with party failing to make discovery.
Court must require nondisclosing party to pay opponents costs, attorneys fees UNLESS
Nondisclosure substantially justified or circumstances exist that make aware of expenses unjust.
Discovery sanctions
Court may
- Take designated facts as true
- Prohibit nondisclosing party from supporting claims or defenses.
- Strike pleadings
- Stay the proceedings until order is obeyed
- Dismiss in whole or part
- Render default judgment against nondisclosing party
- Order nondisclosing party pay expenses and attorney fees
Use of deposition at trial or hearing
May be used to
- Impeach testimony of deponent as witness
- For any purpose if deponent dead or more than 100 miles from court or unable to testify due to age, sickness, incarceration
- For any purpose if judge permits due to exceptional circumstances
- For any purpose if deponent is adverse party
26(f) Discovery Conference
Parties must confer to consider their claims and defenses, possibility of settlement, initial disclosures, and discovery plan.
Parties must submit discovery plan to court addressing timing, required disclosures, limitations and relevant orders that may be required.
16(b) scheduling conference
Court must hold scheduling conference and enter scheduling order limiting time for Joinder, motions and discovery. Order may include dates for PTCs, trial date.
Schedule cannot be modified except my leave of court upon showing of good cause.
