Discovery Flashcards
Discovery
Overview
Involves a court-mandated process of acquiring and producing information from parties and non-party witnesses
- One purpose is to avoid trial by ambush — parties should be aware of info before going to trial
- Court helps process move forward, but does not actively participate in exchange of info
- See Enforcement
- *Process of Discovery**
(1) Initiating Discovery — parties must: - (a) Meet & Confer
- discuss claims and develop proposed discovery plan
- (b) Initial Disclosures
- disclose discoverable information, insurance, and damages information
- (c) Scheduling
- court and parties will develop scheduling order with deadlines for completing discovery
(2) Conducting Discovery
- Depositions, requests for production, interrogatories, requests for admission, etc.
- Followed by expert testimony and pretrial disclosures
“Discoverable”
Material is discoverable if it is:
- (1) Non-Privileged
- (2) Relevant — to a Claim or Defense, and
- (3) Proportional to the needs of the case — factors:
- (a) Amount in Controversy
- (b) Importance of Issues at stake in the action
- (c) Importance of Discovery in Resolving Issues at stake
- (d) Resources of Parties involved
- (e) Whether Burden / Expense of proposed discovery Outweighs its likely Benefit
Applied
- Discoverable is broader than admissible evidence
- e.g., insurance coverage, hearsay
-
Proportional
- Disproportionate — In a small case involving a claim for 25k, party asks the other to produce millions of e-mails and pages of material
-
Info that is Harmful to party can be discoverable
- Something harmful to a party need not be disclosed in required disclosures, but may well be discoverable using the regular discovery tools.
- Ex — Witness, using his cellphone, records D hitting P. Witness sells the recording to D. P sues D and sends a request for all items showing or describing the accident. D must provide the recording to P even though it is harmful to his case.
Hypo — Undue Burden / Cost — Recovery of ESI — allocation of costs
- P seeks discovery from D of relevant emails. The emails have been deleted from D’s server. They can be recovered only at enormous cost (to restore the emails).
- D asserts that the material is “not reasonably accessible because of undue burden or cost.”
- D can move for a protective order, or
- D can object to discovery and P will move to compel discovery
- Court finds ESI is not reasonably accessible because of undue burden or cost — What should P try to do?
- Answer — show good cause for the discovery
- If P meets this showing — the court can order production, and allocate the expense between the parties
- Note — ordinarily the responding party must bear the costs of producing the materials
- Answer — show good cause for the discovery
Privileged Material
(Undiscoverable)
Otherwise discoverable information need not be disclosed if a privilege applies (determined under FRE)
PROCEDURE
Asserting Privilege
- Objection
- If you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection expressly and describe the materials in detail (in Privilege Log)
Privilege Log
- Document that lists the materials protected by date, author, recipient, and privilege or protection claimed
- It must be in enough detail to allow the judge to determine whether the material is protected
Inadvertent Disclosure & Waiver of Privilege
- If you inadvertently produce privileged or protected material, you should notify the other party promptly.
- The other party then must return, sequester, or destroy it pending decision by the court about whether there has been a waiver
Types of Privileges Recognized:
- Attorney-Client
- Work Product — (aka “Trial Prep Materials”)
- Physician-Patient
- Clergy-Penitent
- Marital
- Journalist-Source
- 5th Amend. Privilege against Self-Incrimination
– – – – – – – – – – – – – – – – – – – – – – – – – – –
Work Product Privilege — (“Trial Preparation Materials”)
Protects material:
- (1) prepared in anticipation of litigation
- If the material would have been prepared irrespective of whether there would be litigation, it won’t be work product
- (2) prepared by
- (a) an attorney, or
- (b) a representative
But — Work product may be discoverable upon showing of substantial need for material that is not otherwise available
- See analysis infra
- If the court orders the disclosure of work product, it must take steps to avoid the disclosure of Absolute Work Product (infra)
Experts
- Draft reports and draft disclosures of “trial” experts are work product.
- Confidential communications between such experts and counsel for the party are generally protected as trial preparation materials, except for communications relating to the expert’s compensation or to facts or data the attorney provided to the expert.
Qualified vs Absolute
Work Product can be (A) Qualified, or (B) Absolute
(A) Qualified Privilege
- Evidentiary (factual) material prepared for litigation purposes
- Examples
- testifying party or witness — who is unavailable but their attorney has a witness statement
- Identification of persons who have discoverable info — is discoverable
- a copy of a statement or recording previously made by the party about the case — which is in the possession or control of the opposing party
- Burden — Protected unless opposing party shows:
- (1) Substantial need for material, and
- (2) Material is not available through other means
(B) Absolute Privilege
- Documents containing subjective thoughts of an attorney or party representative concerning the litigation
- Includes — documents / recordings containing
- Mental Impressions
- Opinions
- Conclusions
- Legal Theories
- Burden — Privilege cannot be overcome by need for information — cannot be discovered
Privileges Recognized
- Attorney-Client
- Work Product — (aka “Trial Prep Materials”)
- Physician-Patient
- Clergy-Penitent
- Marital
- Journalist-Source
- 5th Amend. Privilege against Self-Incrimination
– – – – – – – – – – – – – – – – – – – – – – – – – – –
Work Product Privilege — (“Trial Preparation Materials”)
Protects material:
- (1) prepared in anticipation of litigation
- If the material would have been prepared irrespective of whether there would be litigation, it won’t be work product
- (2) prepared by
- (a) an attorney, or
- (b) a representative
But — Work product may be discoverable upon showing of substantial need for material that is not otherwise available
- See analysis infra
- If the court orders the disclosure of work product, it must take steps to avoid the disclosure of Absolute Work Product (infra)
Experts
- Draft reports and draft disclosures of “trial” experts are work product.
- Confidential communications between such experts and counsel for the party are generally protected as trial preparation materials, except for communications relating to the expert’s compensation or to facts or data the attorney provided to the expert.
Qualified vs Absolute
Work Product can be (A) Qualified, or (B) Absolute
(A) Qualified Privilege
- Evidentiary (factual) material prepared for litigation purposes
- Examples
- testifying party or witness — who is unavailable but their attorney has a witness statement
- Identification of persons who have discoverable info — is discoverable
- a copy of a statement or recording previously made by the party about the case — which is in the possession or control of the opposing party
- Burden — Protected unless opposing party shows:
- (1) Substantial need for material, and
- (2) Material is not available through other means
(B) Absolute Privilege
- Documents containing subjective thoughts of an attorney or party representative concerning the litigation
- Includes — documents / recordings containing
- Mental Impressions
- Opinions
- Conclusions
- Legal Theories
- Burden — Privilege cannot be overcome by need for information — cannot be discovered
Work Product Privilege
Work Product Privilege — (“Trial Preparation Materials”)
Protects material:
- (1) prepared in anticipation of litigation
- If the material would have been prepared irrespective of whether there would be litigation, it won’t be work product
- (2) prepared by
- (a) an attorney, or
- (b) a representative
But — Work product may be discoverable upon showing of substantial need for material that is not otherwise available
- See analysis infra
- If the court orders the disclosure of work product, it must take steps to avoid the disclosure of Absolute Work Product (infra)
Experts
- Draft reports and draft disclosures of “trial” experts are work product.
- Confidential communications between such experts and counsel for the party are generally protected as trial preparation materials, except for communications relating to the expert’s compensation or to facts or data the attorney provided to the expert.
Qualified vs Absolute
Work Product can be (A) Qualified, or (B) Absolute
(A) Qualified Privilege
- Evidentiary (factual) material prepared for litigation purposes
- Examples
- testifying party or witness — who is unavailable but their attorney has a witness statement
- Identification of persons who have discoverable info — is discoverable
- a copy of a statement or recording previously made by the party about the case — which is in the possession or control of the opposing party
- Burden — Protected unless opposing party shows:
- (1) Substantial need for material, and
- (2) Material is not available through other means
(B) Absolute Privilege
- Documents containing subjective thoughts of an attorney or party representative concerning the litigation
- Includes — documents / recordings containing
- Mental Impressions
- Opinions
- Conclusions
- Legal Theories
- Burden — Privilege cannot be overcome by need for information — cannot be discovered
Duty to Supplement
Disclosures & Discovery Responses
Often happens when circumstances change, or info becomes known to party
Duty to Supplement — if
- (a) After responding to discovery
- Required Disclosure
- Responses to
- Interrogatory
- RFP — request for production
- RFA — request for admission
- Expert Witness
- EW Report
- Info from Deposition of EW
- (b) the Party — learns that info originally disclosed was
- (i) materially incomplete, or
- (ii) incorrect, and
- (c) the new info has not been made known to other party in discovery or in writing
Certification of
Discovery Requests & Responses
Rule 11 Does Not Apply
Discovery has its own rule — by which
Every discovery request & response is — signed by counsel certifying it is:
- (1) warranted,
- (2) not interposed for an improper purpose, and
- (3) not unduly burdensome
Mandatory Disclosures
Involves info that parties must affirmatively disclose, irrespective of requests from the opposing party
Failure to Disclose
- parties won’t be able to use in case
- — unless failure to disclose was substantially justified or harmless
_______________________________________
I – Initial Disclosures
Parties must disclose:
(1) Sources of Discoverable Information
- (a) (i) all people, documents, electronically stored info (ESI), other things — (ii) that are in paty’s custody or control
- People — must give name, telephone number, address, and topics on which they have evidence
- Documents, etc. — disclosing party may produce copies or a description of these things
- Other Info — Very Broad — videos, photos, recordings, etc.
- Includes Tangible Objects
- P sues D, alleging that D manufactured a defective tire that blew out, causing injury to P. P has the remnants of the tire. P must disclose this fact and provide to D a description of the tire remnants
- In Disclosing Party’s Custody or Control
- If party is aware of documents, ESI, or things that support its case, but it isn’t in their custody or control, they don’t need to disclose their existence.
- (b) likely to have discoverable info
- `i.e., people and documents the disclosing party may use to support its claims or defenses
(2) Computation of Damages Claimed & Documents or ESI supporting it.
(3) Insurance
- Any insurance agreement that may be used to satisfy all or part of a judgment
- Must disclose even if it will be inadmissable at trial
Timing
- Must disclose within 14 days of parties’ Rule 26(f) meet and confer
- Parties served or joined later must make initial disclosures within 30 days of being served or joined
_______________________________________
II – Expert Witnesses (EW) Disclosures
Timing — at least 90 days before trial
Disclosure
Parties must give
- (a) Identity of EWs who “may be used at trial”
- May Be Used at Trial — must be expectation will be used at trial
- C.f. Consulting Expert
- Party hired as expert to help it prepare the case, but does not intend to call that expert to testify at trial. This is not an EW, and thus, party does not need to disclose identity etc.
- Facts known and opinions held by consulting experts are generally not discoverable—except in “exceptional circumstances.”
- (b) written report prepared by the EW — containing
- (i) opinions EW will express
- (ii) bases for the opinions
- (iii) facts used to form the opinions
- (iv) EW’s qualifications
- (v) amount EW is being paid
- (vi) other cases EW has testified in
Notes on EW
- Depose
- After disclosure, other party may depose EW
- Can subpoena to compel attendance
- Must pay EW reasonable fee per hour (set by the court)
- Work Product Privilege
- Earlier drafts of the EW report and communications between the lawyer and the EW are work product.
- If you fail to disclose something you were required to disclose about EW, you cannot use the EW in the case unless your failure was justified or harmless
_______________________________________
III – Pretrial Disclosures
- Timing — at least 30 days before trial
- This is much later than the initial disclosures
- Parties must give detailed info about evidence to be used at trial — including
- Identity of Witnesses to testify — live or by deposition
- Documents, ESI, things to be introduced at trial
Initial Disclosures
Timing
- Must disclose within 14 days of parties’ Rule 26(f) Meet & Confer
- unless a different time is set by court order or stipulation
- Parties served or joined later must make initial disclosures within 30 days of being served or joined
Unless a different time is set by court order or stipulation, within 14 days after the meeting the parties must provide the names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses (unless needed solely for impeachment).
Other disclosures that must be made at this time include: (1) copies or descriptions of documents, electronically stored information, and tangible things that are in the disclosing party’s possession or control and that the disclosing party may use to support its claims or defenses, unless solely for impeachment, (2) computation of damages claimed by the disclosing party and copies of materials upon which the computation is based; and (3) copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.
(1) Sources of Discoverable Information
- (a) (i) all people, documents, ESI, other things (ii) that are in paty’s custody or control
- (b) likely to have discoverable info
(a)(i) All People, Docs, ESI, Other Things
- People — must give name, telephone number, address, and topics on which they have evidence
- Documents, etc. — disclosing party may produce copies or a description of these things
- Other Info — Very Broad — videos, photos, recordings, etc.
- Includes Tangible Objects
- P sues D, alleging that D manufactured a defective tire that blew out, causing injury to P. P has the remnants of the tire. P must disclose this fact and provide to D a description of the tire remnants
(a) (ii) In Disclosing Party’s Custody or Control
* If party is aware of documents, ESI, or things that support its case, but it isn’t in their custody or control, they don’t need to disclose their existence.
(b) Likely to Have Discoverable Info
* `i.e., people and docs the disclosing party may use to support its claims or defenses
(2) Computation of Damages
Computation of Damages Claimed & Dos or ESI supporting it
(3) Insurance
- Any insurance agreement that may be used to satisfy all or part of a judgment
- Must disclose even if it will be inadmissable at trial
Hypo (Document) — element (1)(b)
- P sues Company, alleging that Company wrongfully fired P on the basis of age. Company has an internal memo suggesting that age was the basis for the fring.
- Must Company disclose the existence of this memo in its required disclosures?
- No — because the document does not support the D Company’s case (will not be used to support its claims or defenses)
- Same facts, but P has in her possession a copy of the internal memo suggesting that she was fired on the basis of age.
- P must disclose because it does support her case (claim)
Initial Disclosures
Parties must disclose:
(1) Sources of Discoverable Information
- (a) (i) all people, documents, ESI, other things (ii) that are in paty’s custody or control
- (b) likely to have discoverable info
(a)(i) All People, Docs, ESI, Other Things
- People — must give name, telephone number, address, and topics on which they have evidence
- Documents, etc. — disclosing party may produce copies or a description of these things
- Other Info — Very Broad — videos, photos, recordings, etc.
- Includes Tangible Objects
- P sues D, alleging that D manufactured a defective tire that blew out, causing injury to P. P has the remnants of the tire. P must disclose this fact and provide to D a description of the tire remnants
(a) (ii) In Disclosing Party’s Custody or Control
* If party is aware of documents, ESI, or things that support its case, but it isn’t in their custody or control, they don’t need to disclose their existence.
(b) Likely to Have Discoverable Info
* `i.e., people and docs the disclosing party may use to support its claims or defenses
(2) Computation of Damages
Computation of Damages Claimed & Dos or ESI supporting it
(3) Insurance
- Any insurance agreement that may be used to satisfy all or part of a judgment
- Must disclose even if it will be inadmissable at trial
Timing
- Must disclose within 14 days of parties’ Rule 26(f) meet and confer
- Parties served or joined later must make initial disclosures within 30 days of being served or joined
Hypo (Document) — element (1)(b)
- P sues Company, alleging that Company wrongfully fired P on the basis of age. Company has an internal memo suggesting that age was the basis for the fring.
- Must Company disclose the existence of this memo in its required disclosures?
- No — because the document does not support the D Company’s case (will not be used to support its claims or defenses)
- Same facts, but P has in her possession a copy of the internal memo suggesting that she was fired on the basis of age.
- P must disclose because it does support her case (claim)
Mandatory Disclosures
Expert Witnesses (EW) Disclosures
Timing
at least 90 days before trial
Disclosure
Parties must give:
(a) Identity of EWs who “may be used at trial”
- May Be Used at Trial — must be expectation will be used at trial
- C.f. Consulting Expert
- Party hired as expert to help it prepare the case, but does not intend to call that expert to testify at trial. This is not an EW, and thus, party does not need to disclose identity etc.
- Facts known and opinions held by consulting experts are generally not discoverable—except in “exceptional circumstances.”
(b) W__ritten Report prepared by the EW — containing
- (i) opinions EW will express
- (ii) bases for the opinions
- (iii) facts used to form the opinions
- (iv) EW’s qualifications
- (v) amount EW is being paid
- (vi) other cases EW has testified in
Notes on EW
- Depose
- After disclosure, other party may depose EW
- Can subpoena to compel attendance
- Must pay EW reasonable fee per hour (set by the court)
- Work Product Privilege
- Earlier drafts of the EW report and communications between the lawyer and the EW are work product.
- If you fail to disclose something you were required to disclose about EW, you cannot use the EW in the case unless your failure was justified or harmless
Pretrial Disclosures
(Mandatory Disclosures)
Timing
- At least 30 days before trial
- This is much later than the initial disclosures
Parties must give detailed info about evidence to be used at trial — including
- Identity of Witnesses to testify — live or by deposition
- Docs, ESI, things to be introduced at trial
P files suit and has process served on D, along with interrogatories. OK?
NO
- There is no discovery until after Rule 26(f) Conference.
- Exception doesn’t apply here — it deals with RFPs — P here served interrogatories
Timing
- Assuming no court order or stipulation provides otherwise, a party cannot send discovery requests to another party until after the Rule 26(f) Conference. (depositions, requests for production, interrogatories, requests for admission, etc.)
- Exception — RFP (Requests for Production)
- Can serve RFPs earlier — more than 21 days after service of process.
- These requests are treated as though served at the Rule 26(f) Conference.
- Can serve RFPs earlier — more than 21 days after service of process.
Discovery Tools
One party requests info from other people
- Depositions
- Interrogatories
- RFPs
- RFAs
- Examinations
Discovery Tools
Summary & Timing
One party requests info from other people
- Depositions
- Interrogatories
- RFPs
- RFAs
- Examinations
Timing
- Assuming no court order or stipulation provides otherwise, a party cannot send discovery requests to another party until after the Rule 26(f) Conference. (depositions, requests for production, interrogatories, requests for admission, etc.)
- Exception — RFP (Requests for Production)
- Can serve RFPs earlier — more than 21 days after service of process.
- These requests are treated as though served at the Rule 26(f) Conference.
- Can serve RFPs earlier — more than 21 days after service of process.
Hypo
- P files suit and has process served on D, along with interrogatories. OK? — NO
- There is no discovery until after Rule 26(f) Conference.
- Exception doesn’t apply here — it deals with RFPs — P here served interrogatories
Depositions
Person (deponent) gives live testimony in response to Qs by counsel or pro se parties
Under Oath
- Testimony is sworn and under oath.
- Subject to penalties for perjury
Usually Oral
- Qs are usually oral
- but can be written
- if written, they are read by the court reporter
- but can be written
- Answers are always oral
Recorded / Transcribed
- Recorded by sound / video, or stenographically and a transcript can be made
“To Notice”
- To Call Someone to be Deposed
Compulsory Appearance of Witnesses at Deposition
- Parties
- Serving Notice of depo will compel attendance
- Subpoena not needed
- 30-day notice required for production of Docs
- Serving Notice of depo will compel attendance
- Non-Parties
- May be Deposed
- Must be Subpoenaed
Deponent Testifies from Present Recollection
- Deponent required to review all her relevant files / notes before being deposed
Can Require Deponent to Bring Docs / Materials
- Subpoena “Duces Tecum” — requires the deponent to bring requested documents, materials. ESI to deposition
Distance to Travel
- Unless a non-party agrees, the farthest he can be required to travel to have depo taken is 100 miles from where he resides or is employed
_____________________________________
Limits on Depositions
Scope
- May cover any issue within the scope of discovery
- Objections
- Deponent’s counsel may object to questions, but deponent still required to answer
- Exception
- If objection based on privilege (i.e., answering would reveal privileged information), counsel can instruct deponent not to answer
Length
- Deposition cannot exceed one day of 7 hours
- unless court orders, or parties stipulate.
Number of Depositions
- Must seek court approval to
- (1) take more than 10 depositions, or
- (2) depose the same person twice
_____________________________________
Use of Depositions at Trial
Subject to rules of evidence
Can be used to
- (1) impeach the deponent;
- (2) any purpose if the deponent is
- (a) an adverse party
- (b) unavailable for trial — regardless of whether a party
- unless that absence was procured by the party seeking to introduce the evidence
Use of Depositions
at Trial
Subject to rules of evidence
Can be used to:
(1) Impeach the Deponent
(2) Any Purpose if the Deponent is
- (a) an Adverse Party, or
- (b) Unavailable for Trial — regardless of whether a party
- unless that absence was procured by the party seeking to introduce the evidence
