Discovery

Question 1

Process of discovery timeline

Answer 1

1. Initianing discovery
   
   • Meet and confer (Mandatory)
   • Initial disclosures
   • Scheduling
2. Conducting discovery
   
   1. Depositions, request for admission, request for production
   2. Expert testimonies
   3. pretrial disclosures

Question 2

Timing of meet & confer?

Answer 2

Must ocurr at least 21 days before the scheduling conference.

The discovery plan must be delivered to court within 14 days of the meet and confer

Question 3

What happens in a meet & confer?

Answer 3

Parties discuss claims, defenses and settlement and propose a plan for discovery than then they present to the court

Question 4

Scheduling conference

Answer 4

Conference at or after which judge issues scheduling order setting deadlines for filings of pleadings, joinder, amendments and discovery deadlines

Question 5

Pretrial conference

Answer 5

Held as much as needed to move the case forward and encourage settlement. It is made before the court

A Final pretrial conference may be set to finalize issue to be resolved at trial and evidence to be presented

Question 6

What material is discoverable?

Answer 6

The material that is:

1. non-privileged
2. relevant to the claim
3. proportional to the needs of the case

Question 7

Which factors are taken into account to define if a discovery material is proportional?

Answer 7

1. The amount in controversy
2. Importance of issues at stake in the action
3. The resources of the parties involved
4. Importance of discovery in resolving issues at stake
5. Whether the burden or expense of proposed discovery outweighs its likely benefit

Question 8

What is a privileged material not subject to discovery?

Answer 8

Types of privileged material:

1. Attorney-client
2. Work product
3. Physician-patient
4. Clergy-penitent
5. Marital
6. Journalist-source
7. 5th Amendment privilege against self-incrimination

Question 9

When work product can be discovered? (exception to discovery privilege)

Answer 9

When the interested party shows a substantial need for material that is not otherwise available

Question 10

What do you need to object to a discovery request?

Answer 10

The objection to a discovery request based on privilege must be stated with particularity

Question 11

How many days after the meet and confer, does the party has to 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?

Answer 11

within 14 days after the meeting

Question 12

During discovery, electronically stored information need not be produced if the responding party identifies it as:

Answer 12

Not reasonably accessible because of undue burden or cost

Question 13

Federal Rule 33 provides that a party may send written interrogatories to:

1. Potential Witness
2. Other parties
3. Potential expert witnesses
4. Other parties and potential expert witnesses

Answer 13

Other parties

Federal Rule 33 provides that a party may send written interrogatories to other parties. Because interrogatories are sent and answered only among parties, potential witnesses and potential expert witnesses are both incorrect.

Question 14

As part of the discovery process, a party may not take more than ____ depositions without leave of court or stipulation of the parties.

1. 8
2. 10
3. 5
4. 12

Answer 14

10

As part of the discovery process, a party may NOT take more than 10 depositions without leave of court or stipulation of the parties. Therefore, 5, 8, and 12 are incorrect. Note that a party also may not depose the same person more than once without leave of court or stipulation of the parties, and a deposition may not exceed one day of seven hours without a court order or stipulation to the contrary

Question 15

What a party MUST disclose to the other parties and file with the court at least 30 days before trial?

Answer 15

At least 30 days before trial, a party must disclose to the other parties and file with the court, the following:

1. a list of the witnesses she expects to call at trial,
2. the witnesses she will call if the need arises,
3. the witnesses whose testimony will be presented via a deposition and a transcript of pertinent portions of the deposition, and
4. a list of documents or exhibits she expects to offer or might offer if needed.

Evidence or witnesses that would be used solely for impeachment need not be disclosed. Within 14 days after this disclosure, a party may serve objections to use of the depositions at trial and to the admissibility of disclosed documents and exhibits. Such objections are waived if not made at this point, except for objections that the evidence is irrelevant, prejudicial, or confusing under Federal Rules of Evidence 402 and 403.

Question 16

What a party needs to show to request discovery of work product?

Answer 16

Work product of a party or her representative made in anticipation of litigation is discoverable only upon showing “substantial need” and to avoid “undue hardship” in obtaining materials in an alternative way. If the court orders disclosure, it must take steps to avoid the disclosure of mental impressions, opinions, and conclusions. However, a party may obtain, without a showing of need and hardship or a court order, a copy of any statement previously made by that party. Draft reports and disclosures of testifying experts are work product. Confidential communications between such experts and counsel for the party are generally protected under the work-product doctrine, except communications relating to the expert’s compensation or to facts or data the attorney provided to the expert.

Question 17

What needs to be disclosed under Rule 26?

What excuses are not accepted?

Answer 17

Parties must disclose all information “then reasonably available” that is not privileged or protected as work product.

A party is not relieved from her obligation of disclosure merely because she has failed to complete her investigation or because another party has not made his disclosures or has made inadequate disclosures.

Question 18

What are the type of disclosures required under Rule 26?

Answer 18

Three types of disclosure are required:

1. initial disclosures,
2. disclosure of expert testimony, and
3. pretrial disclosures.

Question 19

Generally, as part of the discovery process, a party may depose _______ experts of opposing parties.

1. Testifying but not consulting
2. Consulting and testifying
3. Consulting but not testifying

Question 20

If a party inadvertently discloses privileged information or work product to opposing parties, the party disclosing the information:

1. May still invoke a claim of privilege or work product protection
2. May still invoke a claim of privilege or work product if he can show a substantial need for doing so
3. Waives the right to exclude the use of the disclosed information

Answer 20

If a party inadvertently discloses privileged information to opposing parties, the party disclosing the information may still invoke a claim of privilege or work product protection.

Once opposing parties are notified, they may not use or disclose the trial preparation material or privileged information until the claim of privilege is resolved. Opposing parties must take reasonable steps to retrieve the material if they disclosed it to others before being notified of the privilege. There is no requirement that a party show a substantial need for invoking a claim of privilege or work product. It is also incorrect to say that the disclosing party waives the right to exclude the use of the disclosed information.