Discovery

Question 1

Rule 26

(5 elements)

Answer 1

(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

Question 2

TESTS for discovery

Answer 2

relevance and proportionality; information doesn’t have to be admissible to be discoverable

Question 3

Discovery Devices

(7 elements)

Answer 3

1. Mandatory Disclosures (Rule 26(a)(1))
2. Depositions (Rule 30(c-d))
3. Interrogatories to parties (Rule 33)
4. Documents, tangible things (Rule 34)
5. Physical and mental exams (Rule 35)
6. Requests for admission (Rule 36)
7. Electronic Discovery (Amended Rules 3, 16, 26, 33, 34, 45)

Question 4

Sanctions

(3 elements)

Answer 4

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

Question 5

Privileges

(10 elements, 2 required, pick 3 more)

Answer 5

• 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)
  *

Question 6

Phases of Discovery

(3 elements + subs)

Answer 6

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.

Question 7

Why might a court become involved in the discovery process?

(3 elements)

Answer 7

• 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).

Question 8

Rule 30(a)

(1 element)

Rule 30(c)

(3 elements)

Rule 30(d)

(3 elements)

Answer 8

(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

Question 9

Interrogatories are….

Answer 9

WORTHLESS.

Rule 33

Question 10

Depositions

(4 elements)

Answer 10

• 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.

Question 11

Rule 36

Answer 11

Admit or deny

Question 12

Rule 34

Answer 12

Document requests

Question 13

Rule 37

Answer 13

Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

(c) Catch a lie = get fees paid

Question 14

Rule 35

Answer 14

Physical and Mental Examinations

Must be directly relevant to the case.

Question 15

Required Disclosures

(4 elements)

Answer 15

Rule 26(a)

Without awaiting request, provide:

• names, addresses, and phones.
• Docs
• Computation of damages
• Insurance agreements

Question 16

Rule 26(b)(1) TEST

(4 elements)

Answer 16

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.

Question 17

Santelli v. Electro-Motive

Answer 17

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.

Question 18

Hickman v. Taylor

Answer 18

Opposing counsel must demonstrate necessity, justification, or undue prejudice for access to counsel’s written statements, private memoranda, and personal recollections.

Question 19

Mullinex Chart

Answer 19

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?