Discovery Flashcards
What information MUST each party disclose to one another without being asked? And what’s the timeframe for doing so?
The following information must be discloses within 14 Days of the Rule 26f Conference:
— Identities of people who have discoverable information you may use to support your claim or defence
— Documents and things you may use to SUPPORT your claim or defence
— Computation (if seeking monetary relief)
— Insurance Coverage
What happens if you fail to disclose material that must be provided to the other side within 14 Days of the Rule 26 Conference?
You cannot use it during trial.
The court will require parties to disclose certain information about the expert witnesses they intend to rely on in trial. What info about the experts must be disclosed to the other side?
(1) Identity of expert
(2) Written report prepared by expert, which must include:
— Opinions expert plans to express — Basis for opinions — Facts used to form opinions — Their Qualifications — Their Fees
Can the other side depose your expert?
Yes, by serving them with a subpoena
If you fail to disclose the necessary info about your expert, what are the consequences?
You cannot use them during trial.
What further information must the parties share with one another before the trial? And state the timeframe for doing so.
No later than 30 days before trial, parties must share detailed information about their trial evidence, including:
— Identity of witnesses that are testifying live it by deposition
— Documents/electronic evidence to be introduced
When can request for discovery be sent?
After the Rule 26f Conference
Who can be deposed and how?
Either a party or a non-party, but need to subpoena the non-party
How can deposition be used at trial?
To impeach
For any purpose if the deposed person is an adverse party
For any purpose if the deposed person is not unavailable (irrespective of whether they were a party)
Are depositions conducted under oath?
Yes
Against whom can you issue interrogatories?
Only parties to the case
What are interrogatories?
Written questions made under oath by another party to the case.
How long do you have from service of interrogatories to respond?
30 days from service to answer or object.
Can you respond to an interrogatory by saying you don’t know the answer?
You must respond with answers reasonably available to you.
What is a request to produce and if you serve it on the other side, how long do they have to answer?
This is where you ask someone to make available for review or copy documents, electronic materials etc.
The person must respond in writing within 30 days of service, stating they will produce or stating their objections.
Who can be served with a request to produce?
A party. But you can get the same information from a non-party by serving them with a subpoena.
How can you arrange that a party have a medical exam?
You need to obtain a court order by showing that (1) the person’s health is in ACTUAL CONTROVERSY; and (2) good cause.
Can a person claim that a medical examination is unnecessary because they’ve previously been examined by a licensed professional?
No, the party cannot avoid examination this way.
Can the person examined obtain access to the medical report produced?
Yes, but you then run the risk of:
— Having to produce your own prior medical reports about the condition
— And in doing so, you waive any doctor-patient privilege with regard to the condition
What is a Request for Admission?
Served on a party (only) and it’s a written request for the other side to admit to something.
How long does the other side have to respond to a Request for Admission?
Must respond in writing within 30 days of service, either denying or objecting (otherwise you’re deemed to have admitted)
Is substantive information provided by a party as part of the discovery process made under oath?
Yes, where signed.
What happens if the circumstances change, rendering your earlier discovery incomplete or incorrect?
You must supplement your response (even if the other side doesn’t ask).
What information can be discovered?
Anything relevant to a claim or defence
And proportionate to the needs of the case
That is not protected by privilege
Do you have to produce, as part of discovery, inadmissible evidence?
Yes, discovery is broader than admissibility
Information covered by the Work Product Doctrine is not discoverable. What is the scope of Work Product?
Information made by a party or a representative of the party is not discoverable if it’s made in ANTICIPATION of LITIGATION
Unless the party request in discovery can show SUBSTANTIAL NEED and UNDUE HARDSHIP.
What is Qualified Work Product?
Information with the opposing party can show a substantial need for it; and
It is not otherwise available
When can a party move for a protective order to object to discovery?
If that party thinks that the discovery was subject to:
– annoyance
– embarrassment
– undue burden
– under expense
But must show that they tried in good faith to work it out with the other side before applying to court.
A court can grant a protective order the effect of which is what?
The order can:
– deny discovery
– limit discovery
– permit discovery on specified terms
If the responding party does not fully answer the questions in discovery what can the other side do?
The requesting party may make a motion to compel answers and the court then decides whether the responding party’s objections are legitimate
What is the pre-requisite to getting costs attorneys fees and/or sanctions imposed against the counterparty for failing to comply with discovery?
You must certify that you tried in good faith to get the information without court involvement (the “Meet and Confer” Rule).
If a party ignore an order compelling them to fully answer discovery question, what award might the non-breaching party obtain?
Costs, attorney’s fees and “merit” sanctions.
If a party completely fails to respond to discovery, what steps can the court take?
— issue an Establishment Order
— Strike Pleadings
— Disallow evidence
Or, if bad faith is show:
— Enter default judgment
— Dismiss that party’s case
If you fail to put in place a litigation hold and lose documents relevant to the case, the court can do what?
Order measures to cure the harm caused by your failure.
But the court cannot make adverse findings unless the party sought to intentionally deprive you of the material.
