DISCOVERY Flashcards
INITIAL DISCLOSURES
within 14 days of the Rule 26(f) conference each party must disclose:41. identities of persons who have discoverable info that the disclosing party may use to SUPPORT claims or defenses
- documents and things you may use to SUPPORT claims or defenses
- computations of damages claimed by the disclosing party and copies of materials which the computation is based
- copies of insurance agreements under which an insurer might be liable for the all or part of the judgment that might be entered
DISCLOSURE OF EXPERT WITNESSES
identities of expert witnesses must be disclosed if the expert is expected to be used at trial
a report must accompany the disclosure if the expert will be used at trial
PRETRIAL DISCLOSURES
NO MORE THAN 60 days before the trial a party must disclose to another party:
- the witness expected to be used at trial
- will call witnesses if the need for them arises
- witnesses whose testimony will be presented by means of a depo and a transcript of the pertinent portions of the depo and
- documents or exhibits expected to offer or might offer if needed
* * objections to pretrial disclosures served 14 days after initial pretrial disclosure
DISCOVERY TIMELINE
a party cannot send a request to another party for information prior to the Rule 26(f) conference
- can serve RFP more than 21 days after service of process
DEPOSITIONS
- a party can take no more than 10 depositions
- subpoena not needed for parties to the case
- depos can be used at trial to impeach the deponent, for any purpose if the deponent is an adverse party, and any purpose if the deponent is unavailable for trial
INTERROGATORIES
- No more than 25 including subparts without court order or stipulation, leave may be granted to serve additonal ones
- Party has 30 days to respond (+3 days if mailed)
- if answers to interrogatories can be found in business records and the burden finding them would be the same on either party, the responding party can allow the requesting party to have access to the records
REQUESTS FOR PRODUCTION
- must respond within 30 days stating that the materials will be produced or asserting objections
- subpoena to a nonparty for production is limited to 100 miles of the residence of the nonparty or the place of work of the nonparty
PHYSICAL OR MENTAL MEDICAL EXAMINATION
must get a court order
order for a party or someone in the party’s legal custody
- if examined party requests a copy of the report, he must produce (on request) all other medical records related to the medical issue examined and waives any doctor privilege related to that issue
REQUESTS FOR ADMISSIONS
- Sent only to parties, never to non-parties
must respond within 30 days of service either admitting, denying specially, or objecting - anything not deemed to be denied will be admitted (not things that are objected to)
DUTY TO SUPPLEMENT
If something changed and in light of the changes the original response is no longer complete or correct- there is a duty to supplement so the answer is correct
SCOPE OF DISCOVERY
Anything relevant to a claim or defense and proportional to the needs of the case is discoverable
- discoverable is more broad than admissible
WORK PRODUCT
Something that is prepared in anticipation of litigation
- does not have to be generated by the lawyer
1. qualified work product: may be discoverable if it is shown that there is a substantial need AND it is not otherwise available
2. absolute work product: cannot be discovered because they contain mental impressions, opinions, and legal theories - identity of people with discoverable information is discoverable
ASSERTING PRIVILEGE OR WORK PRODUCT
must be done expressly and describe the materials in details
- this is done so in a privilege log
- inadvertently produce privilege material, must notify recipient promptly and recipient must return, sequester or destroy and the court decides whether there has been waiver
ENFORCEMENT OF DISCOVERY RULES: 1. PROTECTIVE ORDER
party can move for protective order if requests subject party to annoyance, embarrassment, undue burden or expense or the request is cumulative and not reasonably proportional to the case. Court can deny, limit or permit protective order on some items
ENFORCEMENT OF DISCOVERY RULES: 2. MOTION TO COMPEL
Notice and motion- may seek an order compelling the party to respond if the response was incomplete or there was no response at all
- must certify in good faith that the movant has conferred or attempted to confer with the other party in an effort to avoid court intervention
