Discovery Flashcards
Learn about the discovery process including: - Pretrial conferences - Discovery - E-Discovery - Disclosures - Sanctions
1
Q
What is discovery and what are the two main categories?
A
Process for parties to obtain information from each other and third parties. Categories:
- Mandatory disclosures; and
- Requests for information
2
Q
What are the 3 mandatory disclosures and the deadline for each?
A
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)
3
Q
What are the 6 methods of discovery?
A
- Mandatory disclosures;
- Interrogatories;
- Request for Admissions;
- Request for Documents and Tangible Items;
- Requests for Mental or Physical Examinations; and
- Depositions
4
Q
What type of information is discoverable?
A
Unless otherwise limited by court order, any information that is:
- Relevant;
- Proportional to the needs of the case; and
- Not privileged
5
Q
What type of information is not discoverable?
A
Information that is:
- Irrelevant;
- Privileged; or
- Work product (unless there is a showing of substantial need or undue hardship)
6
Q
When is information considered relevant for discovery purposes?
A
If it is likely to make any fact in the dispute more or less likely to be true, regardless of whether it is admissible.
7
Q
What is the sequence of discovery?
A
- Rule 26(f) discovery conference
- Initial disclosures
- Party-initiated discovery
- Pretrial disclosures
8
Q
What is a Rule 26(f) conference?
A
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
9
Q
What is the deadline to hold a Rule 26(f) conference?
A
At least 21 days before scheduling conference is held. Rule 16(b)
10
Q
Within 14 days of the Rule 26(f) conference, what initial disclosures do parties need to make?
A
- 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
11
Q
What is a Rule 16(b) conference?
By when must the Rule 16(b) conference occur?
A
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)
12
Q
Do insurance agreements need be disclosed regardless of whether the other party asks for them?
A
Yes, insurance agreements are initial disclosures required by Rule 26(a)(1).
13
Q
What are the different types of privilege?
A
- Attorney/client
- Doctor/patient
- Spousal
- Priest/penitent
- Work product
- Journalist/source
- 5th Amendment protection against self-incrimination
14
Q
Is privilege an absolute bar to disclosure?
A
Yes, absolute bar.
15
Q
Doctor-patient privilege protects what type of information?
A
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.
16
Q
What types of communications are protected by attorney-client privilege?
A
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
17
Q
What are the two types of spousal privilege?
A
- Testimonial
- Marital communication
18
Q
What is protected by spousal privilege?
A
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).
19
Q
What is protected by the marital communication privilege?
A
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)
20
Q
How must a party assert a privilege?
A
- 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
21
Q
What is considered work product?
A
Any documents or tangible things prepared in anticipation of litigation or trial by or for another party or its representative.
22
Q
Are documents prepared in the ordinary course of business considered work product?
A
No.
23
Q
When is work product discoverable?
A
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.
24
Q
What type of work product is almost never discoverable?
A
Mental impressions, conclusions, opinions, and theories regarding the case.
25
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)](https://www.law.cornell.edu/rules/frcp/rule_26) (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)](https://www.law.cornell.edu/rules/frcp/rule_26) (Deadline: 30 days before trial, unless ordered otherwise )
26
If the expert was specially retained to provide expert testimony, what must their discovery disclosures contain?
1. **Name** and **contact information** of the expert;
2. Expert's **final report**;
3. Expert's **opinion** and **credentials**;
4. List of all **other cases** in which the expert has testified in (past 4 years only);
5. **Data** relied on by the expert; and
6. Amount of c**ompensation** to be paid for the study
[FRCP 26(a)(2)](https://www.law.cornell.edu/rules/frcp/rule_26)
27
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.
28
If the expert **does not** provide a written report and/or is **non-testifying**, what must their disclosures contain?
1. The **subject matter** on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
2. **Summary of the facts and opinions** to which the witness is expected to testify
[FRCP 26(a)(2)(C)](https://www.law.cornell.edu/rules/frcp/rule_26)
29
# Define
depositions
Proceedings held during the course of discovery (before a trial) where a witness is questioned orally by an attorney **under oath**
30
When is **court permission** required for depositions?
1. The deponent is in **prison**; or
2. If the parties have **not stipulated** to the deposition and:
1. 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;
2. The deponent has **already been deposed** in the case; or
3. 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
[FRCP 30(a)(2)](https://www.law.cornell.edu/rules/frcp/rule_30)
31
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
32
What are the **geographical/travel limitations** when deposing a **nonparty**?
Deposition cannot be more than **100 miles** from where the person lives & works.
[FRCP 30, comments](https://www.law.cornell.edu/rules/frcp/rule_30)
33
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.**
[FRCP 30(b)(6)](https://www.law.cornell.edu/rules/frcp/rule_30)
34
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).
[FRCP 30](https://www.law.cornell.edu/rules/frcp/rule_30)
35
**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.
[FRCP 30(a)(2)](https://www.law.cornell.edu/rules/frcp/rule_30)
36
What happens if the location or timing of a deposition is **too burdensome**?
The court can issue a **protective order** under Rule 26(c).
37
# Define
subpoena duces tecum
Compells a person to produce **documents** or **tangible materials** at the deposition
38
# Define
interrogatories
**Written** questions used for disclosure of routine information.
[FRCP 33.](https://www.law.cornell.edu/rules/frcp/rule_33)
39
A party can serve a **maximum** of ____ interrogatories on another party
**25** (including all discrete subparts), unless court approves or other party agrees.
[FRCP 33(a)(1).](https://www.law.cornell.edu/rules/frcp/rule_33)
40
Can interrogatories be served on **nonparties**?
No, only on parties.
41
A party served with interrogatories has ____ days to respond
**30** days. [FRCP 33(b)(2)](https://www.law.cornell.edu/rules/frcp/rule_33)
42
What must **responses** to interrogatories contain?
1. Be **in writing under oath**; and
2. Include **objections** with specificity
3. **Signed** by the person answering (or the attorney making the objections)
[FRCP 33(b)](https://www.law.cornell.edu/rules/frcp/rule_33)
43
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.
[FRCP 34](https://www.law.cornell.edu/rules/frcp/rule_34)
44
Can **nonparties** be served with **requests for production**?
Yes, may be compelled by **subpoena** under [FRCP 45.](https://www.law.cornell.edu/rules/frcp/rule_45)
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.
[FRCP 35(a)](https://www.law.cornell.edu/rules/frcp/rule_35)
46
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
[FRCP 36](https://www.law.cornell.edu/rules/frcp/rule_36)
47
What is the **deadline** to respond after a **request for admission?**
**30 days** after receipt of request. [FRCP 36(a)(3)](https://www.law.cornell.edu/rules/frcp/rule_36)
48
What is the **effect** if a party **does not object or deny** a request for admission?
Deemed **admitted** for trial. [FRCP 36(a)(3)](https://www.law.cornell.edu/rules/frcp/rule_36).
49
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,
[FRCP 37(e)](https://www.law.cornell.edu/rules/frcp/rule_37)
50
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:
1. Order measures no greater than necessary to cure the prejudice; or
2. Upon finding that the party acted with malicious **intent**:
1. **Presume** that the lost information was **unfavorable** to the party;
2. Instruct the **jury** that to **presume** that the information was **unfavorable** to the party; or
3. **Dismiss** the action or enter a **default** judgment
[FRCP 37(e)](https://www.law.cornell.edu/rules/frcp/rule_37)
51
What is a Rule 37(a) **order to compel**?
Orders a noncompliant party to comply with a discovery request.
[FRCP 37(a)](https://www.law.cornell.edu/rules/frcp/rule_37)
52
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
[FRCP 37(a)(3)(B)](https://www.law.cornell.edu/rules/frcp/rule_37)
53
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.
[FRCP 37(a)(1)](https://www.law.cornell.edu/rules/frcp/rule_37)
54
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**
[FRCP 37(a)(5)](https://www.law.cornell.edu/rules/frcp/rule_37)
55
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**
[FRCP 37(b)](https://www.law.cornell.edu/rules/frcp/rule_37)
56
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.**
[FRCP 37(a)(5)(B)](https://www.law.cornell.edu/rules/frcp/rule_37)
57
**When** is a Rule 26(c) **protective order** issued?
To prevent “annoyance, embarrassment, oppression, or undue burden or expense”
58
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 t**o resolve** the dispute.
59
What does a Rule 26(c) protective order **limit**?
Either:
* **Timing** of discovery;
* **Scope** of discovery; or
* **Forbids** discovery altogether
60
What is the effect of an attorney signing discovery disclosures pursuant to **R****ule 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)
61
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.
