Discovery Flashcards
190 Discovery Limitations
A P must alledge tin the first numbered paragraph of the original petition whether discovery is intended to be conducted under level 1 2 or 3
b. 190.5 modification: The court may modify a discovery plan at any time and must do so when the interest of justic requires. The court must allow discovery:
–related to new, amended, supplemental pleadings, response, or new info
if made after deadline or so close that there is not adequate opp to conduct
–unfair prej. without
regarding matters that have chaged materially after the discovery cutoff is set or postopened
Level 1
- suits involving 50k or less(excluding costs, pre jmt interest and attfs)
- Divorce w/o children
- Does not applly if:
- parties agree level 2 should apply
- court orders a level 3 or
- a pleading, amended pleading or supplemental pleading that rendes this subdivision no longer applicable may not be filed without leave of cout less than 45 days before the date set for trial
- leave may be granted only if good cause for filing the pleading outweighs any prejudice to an opposing party
4LIMIATATIONS:
1) Discovery Period: begins when the suit is filed and continues until 30 days before the date set for trial - discovery must be complete w/in that time
2) total time for oral depos: Each party may have no more than 6 hours total to examine and cross examin all wits in oral depso
(may expand up to 10, but only w/ CO)
(May modify hours so no unfair advantage)
3) interrogatories: no more than 25 written inter., excluding ones asking a party only to identify or authenticate specific documents. Each discrete subpart is considered one.
- Reopening Discovery: When the filing of a pleading or an amended or supplemental pleading renders this subdivision no longer applicable, the discovery period reopens and discovery must be completed within the limitations provided in level 2 or 3.
Level 2 (By rule)
Discovery period: Begins when suit is filed and continues until: 30 days before the the date set for trial or the earleir of 30 days before date set or 9months after 1st oral depo or due date of 1st written discovery response
- time for oral depos; No side may have more than 50 hours.
- Interrogatories: 25 (same as level 1)
level 3: by order
The court must, on a party’s motion and may, on it’s own ititiative, order that discovery be conducted in accordance with a discovery control plan tailored to the circumstances of the specific suit
- The parties may submit an agreed order to the court for its consideration
- the court should act on a party’s motion as promptly as reasonably possible
- limitations: May address any issue concerning discovery set forth in those rulse, discovery limitations of level one, if applicable, or otherwise level 2 apply unless specifically changed in the discovery control plan ordred by court. The plan must include:
- date for trial or for a conference to set trial
- discovery period
- appropriate limits
- deadlines
191.1 Modification of procedures
Except where specifically prohibited, the discovery procedures and limitations can be modified by party agreement or by court order for good cause. An agreement of the parties is enforceable if it complies with rule 11 or, as it affects an oral depo, if it is made part of the record of the depo
Discovery Agreements
- Rule 11: No agreements btwn parties on any aspect at any time is enforceable unless; It is made in writing and filed with the clerk or made in open court. Will be upheld unless the rules specifically say you can’t do it
- A trial court may modify discovery procedures and limitations for good cause.
a. whereever possible a trial court should give effect to agreements between parties.
b. discovery agreements serve an important role in efficient trial management, permitting the parties to settle their disputes without resort to judicial supervision.
c. the rcp encourage parties to reach discovery agreements
d. when the parties conclude an agreement, teh court should not lightly ignore their bargain.
e. a court should be particularly reluctant to set aside an agreement after one parrty has acted in reliance on the agree procedure and performed its obligations
191.2 Conference
Parties and their attorneys are expected to cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the case. All discovery motions or requests for hearings relating to discovery must contain a certificate by the party filing that a reasonable effort has been made to ersolve the dispute without the necessity of court intervention and the effort failed
191.3 Signing of disclosures, discovery requests, notices, responses and objections
a. signature required: everything must be signed by atty and party
b. effect of signature on disclosure: constitutes a certification that to the best of the signers knowledge, info and belief, formed after a reasonable inquiry, the disclosure is complete and correct
c. effect of failure to sign: Must be stricken unless signed promptly
d. Sanctions
Filing of discovery materials (191.4)
Materials not to be filed:
- discovery requests, depo notices, subs, req to be served only on parties
- responses and objections to requests
- documents and tangible things.
- rule 193.3 smts
Materials not to be filed:
- ”” served on non parties
- motions and responses to motions pertaining to discovery matters
- discovery agreements
Exceptions
- court can order more materials filed
- a person may file discovery materials in support or opp. to motion
- necessary for app court
Keep things for after 6 months of jmt
191.5 Service of Discovery Materials
Everything that is to be served on one party must be served on all
192.1 Forms of discovery
Requests for Disclosure
Requests for production and inspection of documents and tangible things
Requests for motions for entry upon and examination of real prop.
Interrogatories
Requests for admission
Oral or Written Depo
Motions for mental or physical exams
192,2 sequence of discovery
May be combined in the same document and may be taken in any order or sequence
192.3 Scope of Discovery
In general, a party may obtain discovery regarding any matter that is not priviledged and is relevant to the subject matter of the pending action. Doesn’t have to be admissible as long as it is reasonably calculated (Specific) to lead to the discovery of the admissible evidence
Documents and tangible things: Can obtain discovery of the existence, description, nature, custody, condition, location, and contents of documents and tangible thingd that contain matters relevant to the subject matter of the action. A person is required to produce docuemnt or tangible thing that is within the person’s possession, custody or control
Persons with Knowledge of relevant facts: Can obtain NA&T # of persons having knowledge of relevant facts and a brief statement of each person’s connection with the case.
-An expert is a “person with knowledge of relevant facts” only if that knowledge was obtained first hand or if it was not obstained in preparation for trail or in anticipation of litigation.
Scope of Testifying and consulting Experts: Can discover about testifying or reviewed consulting experts
- name address phone number
- subject matter on which they will testify
- facts known by the expert that relate to or form the basis of the expert’s mental impressions and opinions formed or made in connection with the case in which discovery is sought regardless of when and how the facts were acquired.
- experts menatl impressions and opinions formed or made in connection with the case in which discovery is sought and any methods used to derive them.
- any bias of w.
- all documents
