Discovery Flashcards
Learn about the discovery process including: - Pretrial conferences - Discovery - E-Discovery - Disclosures - Sanctions
What is discovery and what are the two main categories?
Process for parties to obtain information from each other and third parties. Categories:
- Mandatory disclosures; and
- Requests for information
What are the 3 mandatory disclosures and the deadline for each?
Unless otherwise ordered by the court:
-
Initial disclosures: 14 days after discovery conference. FRCP 26(a)(1)(C)
* If party was served or joined after Rule 26(f) conference, deadline is 30 days after being served or joined. FRCP 26(a)(1)(D) -
Expert testimony: 90 days before trial. FRCP 26(a)(2)(D)(i)
* If evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), then the deadline is within 30 days after the other party’s disclosure. FRCP 26(a)(2)(D)(ii) - Pretrial disclosures: 30 days before trial. FRCP 26(a)(3)(B)
What are the 6 methods of discovery?
- Mandatory disclosures;
- Interrogatories;
- Request for Admissions;
- Request for Documents and Tangible Items;
- Requests for Mental or Physical Examinations; and
- Depositions
What type of information is discoverable?
Unless otherwise limited by court order, any information that is:
- Relevant;
- Proportional to the needs of the case; and
- Not privileged
What type of information is not discoverable?
Information that is:
- Irrelevant;
- Privileged; or
- Work product (unless there is a showing of substantial need or undue hardship)
When is information considered relevant for discovery purposes?
If it is likely to make any fact in the dispute more or less likely to be true, regardless of whether it is admissible.
What is the sequence of discovery?
- Rule 26(f) discovery conference
- Initial disclosures
- Party-initiated discovery
- Pretrial disclosures
What is a Rule 26(f) conference?
Initiates the discovery process. Requires that parties meet “as soon as practicable” to:
- Discuss claims & defenses; and
- The possibility for settlement
* If no settlement is reached, the parties must develop a discovery plan to submit to the court within 14 days
What is the deadline to hold a Rule 26(f) conference?
At least 21 days before scheduling conference is held. Rule 16(b)
Within 14 days of the Rule 26(f) conference, what initial disclosures do parties need to make?
- Contact info for individuals likely to have discoverable information;
- Documents that support a party’s claims or defenses;
- Damages calculation & material upon which the calculation is based; and
- Insurance agreements that could satisfy all or part of a possible judgment
What is a Rule 16(b) conference?
By when must the Rule 16(b) conference occur?
Conference where the judge issues a scheduling order detailing deadlines for disclosures, filings, and other discovery issues. FRCP 16(a)
Deadline: As soon as is practicable, but within 90 days of D being served, or within 60 days of when D appears, whichever is earlier. FRCP 16(b)(2)
Do insurance agreements need be disclosed regardless of whether the other party asks for them?
Yes, insurance agreements are initial disclosures required by Rule 26(a)(1).
What are the different types of privilege?
- Attorney/client
- Doctor/patient
- Spousal
- Priest/penitent
- Work product
- Journalist/source
- 5th Amendment protection against self-incrimination
Is privilege an absolute bar to disclosure?
Yes, absolute bar.
Doctor-patient privilege protects what type of information?
Any information disclosed by a patient to a doctor for the purpose of diagnosis or treatment (unless the patient consents to disclosure).
⚠️ Note: In some states, this privilege extends to hospitals and other medical practitioners.
What types of communications are protected by attorney-client privilege?
Communications that:
- Are between the attorney and client;
- Were intended to be, and were, in fact, kept confidential; and
- Were made for the purpose of obtaining or providing legal advice
What are the two types of spousal privilege?
- Testimonial
- Marital communication
What is protected by spousal privilege?
Protects a spouse from testifying as a witness against their spouse. May be waived by the spouse witness (not the spouse defendant). Not allowed when the spouses are opposing parties (e.g. divorce proceedings).
What is protected by the marital communication privilege?
All information communicated by one spouse to another during the marriage that was intended to be confidential (i.e. not repeated to a third party)
How must a party assert a privilege?
- Expressly make the claim; and
- Describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim
What is considered work product?
Any documents or tangible things prepared in anticipation of litigation or trial by or for another party or its representative.
Are documents prepared in the ordinary course of business considered work product?
No.
When is work product discoverable?
If materials are:
- Otherwise discoverable under Rule 26(b)(1); and
- The party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
What type of work product is almost never discoverable?
Mental impressions, conclusions, opinions, and theories regarding the case.
What pretrial disclosures are required for expert and lay witnesses?
- Expert: List of all expert witnesses and any info used to form the basis of their opinions.FRCP 26(a)(2) (Deadline: 90 days before trial, unless ordered otherwise)
- Lay: List of all witnesses and documents that will used as exhibits at trial. FRCP 26(a)(3) (Deadline: 30 days before trial, unless ordered otherwise )
If the expert was specially retained to provide expert testimony, what must their discovery disclosures contain?
- Name and contact information of the expert;
- Expert’s final report;
- Expert’s opinion and credentials;
- List of all other cases in which the expert has testified in (past 4 years only);
- Data relied on by the expert; and
- Amount of compensation to be paid for the study
Are materials developed by non-testifying experts in anticipation of litigation discoverable?
No, unless exceptional circumstances make it impracticable for the parties to obtain the info by other means.
If the expert does not provide a written report and/or is non-testifying, what must their disclosures contain?
- The subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
- Summary of the facts and opinions to which the witness is expected to testify
Define
depositions
Proceedings held during the course of discovery (before a trial) where a witness is questioned orally by an attorney under oath
When is court permission required for depositions?
- The deponent is in prison; or
- If the parties have not stipulated to the deposition and:
- The deposition would result in more than 10 depositions being taken under this rule or Rule 31 by P’s, or by D’s or by the third-party D’s;
- The deponent has already been deposed in the case; or
- The party seeks to take the deposition before the time specified in Rule 26(d), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time
What is the effect of giving notice of a deposition on parties? Nonparties?
- Parties: Reasonable notice compels attendance
- Nonparties: Notice doesn’t force a party to appear, a subpoena may need to be issued
What are the geographical/travel limitations when deposing a nonparty?
Deposition cannot be more than 100 miles from where the person lives & works.
What are the rules on deposing a corporation?
Parties can subpoena corporations, and then the corporation/entity must then designate one or more officers, directors, or managing agents, or other persons to testify on its behalf about information known or reasonably available to the organization.
What is the scope of a deposition?
Are objections to questions allowed?
Scope: Anything that is discoverable, even if the evidence itself would not be admissible. ⚠️ Remember that privileged information is almost never discoverable.
Objections are allowed if nonargumentative. Although objections will be noted in the transcript, the deponent must answer anyways (unless privileged).
How many depositions are allowed per party?
What is the maximum length of time a deposition can last?
10 per party unless good cause is shown.
Each deposition is limited to one day for a maximum of 7 hours, unless otherwise dictated by the court.
What happens if the location or timing of a deposition is too burdensome?
The court can issue a protective order under Rule 26(c).
Define
subpoena duces tecum
Compells a person to produce documents or tangible materials at the deposition
Define
interrogatories
Written questions used for disclosure of routine information.
FRCP 33.
A party can serve a maximum of ____ interrogatories on another party
25 (including all discrete subparts), unless court approves or other party agrees.
Can interrogatories be served on nonparties?
No, only on parties.
A party served with interrogatories has ____ days to respond
30 days. FRCP 33(b)(2)
What must responses to interrogatories contain?
- Be in writing under oath; and
- Include objections with specificity
- Signed by the person answering (or the attorney making the objections)
What are requests for production?
What is the deadline for response?
Requests for documents, tangible evidence and electronic evidence.
Deadline: must respond within 30 days after the request served.
Can nonparties be served with requests for production?
Yes, may be compelled by subpoena under FRCP 45.
When can a party request a mental or physical exam?
Only when a person’s mental or physical state is in controversy. Requesting party must show good cause and specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.
What are requests for admissions and how can a party respond?
Requests for parties to admit the truth of certain evidence.
Response options:
- Admit information is true;
- Deny information is true;
- Explain why party cannot admit or deny; or
- Object to request
What is the deadline to respond after a request for admission?
30 days after receipt of request. FRCP 36(a)(3)
What is the effect if a party does not object or deny a request for admission?
Deemed admitted for trial. FRCP 36(a)(3).
Is there a duty to preserve electronic evidence?
Yes. If evidence that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it (and it cannot be restored or replaced), the court can sanction the other party,
What happens if a party fails to take reasonable steps to preserve electronic evidence in anticipation of litigation?
The court may, upon finding prejudice to another party:
- Order measures no greater than necessary to cure the prejudice; or
- Upon finding that the party acted with malicious intent:
- Presume that the lost information was unfavorable to the party;
- Instruct the jury that to presume that the information was unfavorable to the party; or
- Dismiss the action or enter a default judgment
What is a Rule 37(a) order to compel?
Orders a noncompliant party to comply with a discovery request.
What can a party compel another party to do under Rule 37(a)?
- Answer questions in a deposition
- If a corporate defendant → designate an individual for purposes of deposition
- Answer an interrogatory
- Produce documents or permit inspection of documents
What is the prerequisite to filing a motion to compel?
Certification that movant made a good faith attempt to confer with the person resisting discovery to see if judicial intervention can be avoided.
If a motion to compel succeeds, what is the result?
- Other party will be ordered to comply
- Court may impose sanctions
- Moving party may be entitled to attorney’s fees
What sanctions can be imposed if a party fails to comply with a discovery order?
The court may:
- Direct that the information at issue must be viewed in the way that the prevailing party asserts (ie. if X requests emails that are meant to show evidence of fraud, and Y does not comply with a court order ordering production, the court will assume that the emails actually showed evidence of fraud).
- Prohibit the disobedient party from supporting or opposing claims that the evidence related to
- Strike pleadings, stay proceedings until the order is obeyed, dismiss the action, or render a default judgment against the disobedient party
- Hold the disobedient party in contempt
If a motion to compel is denied, what is the effect?
- The court may issue a protective order barring discovery of the relevant information.
- In addition, the moving party may be required to pay attorney’s fees to the other side unless motion was substantially justified.
When is a Rule 26(c) protective order issued?
To prevent “annoyance, embarrassment, oppression, or undue burden or expense”
What is the prerequisite to filing a Rule 26(c) protective order?
Moving party must show that she conferred or attempted to confer with the other party to resolve the dispute.
What does a Rule 26(c) protective order limit?
Either:
- Timing of discovery;
- Scope of discovery; or
- Forbids discovery altogether
What is the effect of an attorney signing discovery disclosures pursuant to Rule 26(g)?
Certifies that the disclosures are:
- Complete and correct (mandatory disclosures only);
- Consistent with the rules;
- Warranted by existing law;
- Not made for an improper purpose; and
- Not unreasonably burdensome
(Discovery counterpoint to Rule 11)
Both Rule 11 and Rule 26(g) permit a party to file for sanctions against an opposing party. How do they differ?
There is no safe harbor for Rule 26(g), so a party served does not have 21 days to correct their error.
