Discovery Flashcards
Rule 26
(5 elements)
(a) Required Disclosures. Initial Disclosures required without court order. Evidence supporting the party’s claims.
- Info of everyone who is likely to have info relative to the case. Only witnesses that help your case.
- Docs in support.
- Damage calculation.
- Insurance agreement.
(b) (3) Work product not discoverable
(d) Duty to supplement - continuing if new things emerge
(g) Signatures - When you sign a discovery paper, you are certifying the accuracy > subject to sanctions via Rule 37.
(b) (1) Proportionality
- considering the importance of the issues at stake in the action,
- the amount in controversy,
- the parties’ relative access to relevant information,
- the parties’ resources,
- the importance of the discovery in resolving the issues,
- whether the burden or expense of the proposed discovery outweighs its likely benefit
TESTS for discovery
relevance and proportionality; information doesn’t have to be admissible to be discoverable
Discovery Devices
(7 elements)
- Mandatory Disclosures (Rule 26(a)(1))
- Depositions (Rule 30(c-d))
- Interrogatories to parties (Rule 33)
- Documents, tangible things (Rule 34)
- Physical and mental exams (Rule 35)
- Requests for admission (Rule 36)
- Electronic Discovery (Amended Rules 3, 16, 26, 33, 34, 45)
Sanctions
(3 elements)
Rule 37
- Motion to compel if failure to respond to discovery or incomplete
- Sanctions for failure to comply with court order, including prohibiting testimony, striking pleadings, dismissing the action
- Sanctions for failure to admit or failure to disclose (initial disclosures) or supplement, including attorneys’ fees, other sanctions
Privileges
(10 elements, 2 required, pick 3 more)
- Privileges can be waived (directly or through the act of disclosure)
- Some exceptions for public policy (e.g., attorney can report if client told her that he is getting ready to murder someone)
- Against self incrimination (5th Amendment)
- Attorney-client
- Doctor patient
- Priest-penitent
- Psychotherapist
- Husband wife
- Some places: conversations at Alcoholics Anonymous meetings
- Purpose is to assure free flow of information without deterrence; for instance, a lawyer needs to know the true facts to figure out what to do (or in case of 5th Amendment to protect a constitutional right to remain silent)
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Phases of Discovery
(3 elements + subs)
Disclosure
- 90-120 Days.
- Concludes with discovery conference (Rule 16) and discovery order.
- No other discovery takes place during this time.
Formal discovery process.
- May last months to years.
- Use of all discovery devices.
Pretrial
- Disclosure of expert information describes in Rule 26(a)(2).
- Expert deposition may take place.
- Disclosure of trial witnesses and docs described in Rule 26(a)(3).
- Parties may seek admissions on key issues in Rule 36.
Why might a court become involved in the discovery process?
(3 elements)
- compel
- sanctions
- protective order
- A party may seek to compel answers or responses to devices. Rule 37(a).
- A party may seek sanctions for allegedly improper responses or conduct. Rule 26(g), 30(d)(2), 37(b).
- A party who wants to preclude, limit, change, or otherwise impose restrictions on discovery may see a protective order. Rule 26(c).
Rule 30(a)
(1 element)
Rule 30(c)
(3 elements)
Rule 30(d)
(3 elements)
(a) no more than 10 depositions
(c) Exam/Cross, Record, Objections, Written Questions
(1) Examination and Cross-Examination - officer, oath, recorded
(2) Objections - noted, but continues. Only instruct not to answer for privilege, order, or motion.
(3) Written Questions
(d) Duration; Sanction; Motion to Terminate or Limit
(1) 1 day of 7 hours
(2) Sanction for fees and expenses for delay
(3) Motion to terminate or limit on bad faith examination + expenses
Interrogatories are….
WORTHLESS.
Rule 33
Depositions
(4 elements)
- 7 hour limit, witness gets to review transcript, no more than 10 depositions (a). Rule 30.
- Perpectual Testimony e.g. terminal illness video. Rule 27
- Before whom taken, authority to administer, oaths, etc. Rule 28
- Stipulates disclosure process. Rule 29.
Rule 36
Admit or deny
Rule 34
Document requests
Rule 37
Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
(c) Catch a lie = get fees paid
Rule 35
Physical and Mental Examinations
Must be directly relevant to the case.
Required Disclosures
(4 elements)
Rule 26(a)
Without awaiting request, provide:
- names, addresses, and phones.
- Docs
- Computation of damages
- Insurance agreements
Rule 26(b)(1) TEST
(4 elements)
Scope of discovery:
- Not privileged,
- relevant to the SM involved,
- relates to the claim or defense of any party,
- need not be admissible at trial if appears that it could lead to admissible discovery.
Santelli v. Electro-Motive
A party cannot inject his or her psychological treatment, conditions, or symptoms into a case and expect to be able to prevent discovery of information relevant to those issues.
Hickman v. Taylor
Opposing counsel must demonstrate necessity, justification, or undue prejudice for access to counsel’s written statements, private memoranda, and personal recollections.
Mullinex Chart
Assault: A v B
Step 1: What do you have to produce with motion for ΣJ?
- A moves: Evidence (π rarely wins ΣJ)
- B moves: Evidence - point to insufficiency of evidence in the record
Step 2: What do you produce in response?
- B opposes: Evidence - genuine issue of material fact. Rule 56(a)(2)
- A opposes: Evidence - Rule 56(d)(2)
Step 3: Is there an issue of material fact for trial?
