Discovery

Question 1

What must be automatically disclosed?

Answer 1

26(a)(1)(A)

i. Information about witnesses the disclosing party will likely use to support claims or defenses
ii. Copy or description of disclosing party’s star documents;
iii. Computation of damages;
iv. Insurance agreements

Question 2

What penalties for failure to make initial disclosures?

Answer 2

Disclose it or lose it (37(c)(1)) Unless failure was substantially justified or harmless. In addition or instead, court may order:

i. Payment of reasonable expenses
ii. Inform jury of party’s failure; and
iii. May impose sanctions under 37(b)(2)(A)

Question 3

When are initial disclosures made?

Answer 3

26(a)(1)(C): At or within 14 days after the parties’ rule 26(f) conference

Question 4

What are the four gatekeepers?

Answer 4

26(b)(1): 
a. Privilege
b. Relevance
c. Proportionality
26(b)(3): 
d. Work product

Question 5

What is privileged?

Answer 5

1. Confidential communication between client and counsel
2. for the purposes of obtaining legal advice
   Privilege is absolute unless waived or a common law exception applies.
   26(b)(5): privilege log rule.

Question 6

What is relevant?

Answer 6

i. Any non-privileged material relevant to a party’s claim or defense
ii. For good cause, court may order discovery of any matter relevant to action
iii. Information sought does not need to be admissible.

Question 7

What is proportional?

Answer 7

i. Gilead Sciences v. Merck: if burden to produce > benefit, discovery may be denied or limited
ii. Deny discovery if unreasonably cumulative, duplicative, can be obtained elsewhere with less burden, or party already has opportunity to get it (26(b)(2)(C))
iii. Wood v. Capital
iv. Proportional to needs of case considering: importance of issues at stake, amount in controversy, parties’ relative access, parties’ resources, and importance of discovery in case resolution.

Question 8

What is work product?

Answer 8

Document or tangible thing otherwise discoverable prepared in anticipation of litigation, by or for a party or one of its representatives.

Question 9

When is work product discoverable?

Answer 9

Opponent can show:
1. It is otherwise discoverable under 26(b)(1);
2. Party has substantial need for materials and can’t obtain equivalent otherwise
But: mental impressions, conclusions, opinions, or legal theories never discoverable.

Question 10

How many interrogatories can be served?

Answer 10

33(a)(1): 25, unless leave for more is granted

Question 11

To whom can interrogatories be served?

Answer 11

33(a)(1): only other parties

Question 12

How long does a party have to respond to interrogatories?

Answer 12

33(b)(2): 30 days

Question 13

To whom can requests for production be served?

Answer 13

34(a): Another party or a non-party if subpoenaed under Rule 45

Question 14

How long does a party have to respond to a request for production?

Answer 14

34(b)(2)(A): 30 days to respond or to state objections (b)(2)(B)

Question 15

What is the effect of an objection to a request for production?

Answer 15

34(b)

i. Must specify the part objected to and permit the rest;
ii. Must state whether any responsive materials are being withheld on basis of objection
iii. No expressed provision for waiver if party fails to object, but courts may find one anyway.

Question 16

In what manner are documents to be produced?

Answer 16

34(b)(2)(E):

i. As kept in usual course of business;
ii. In a form or forms in which it is ordinarily maintained; and
iii. A party need not produce the same ESI in multiple forms.

Question 17

What is an oral deposition?

Answer 17

Sworn testimony under oath

Question 18

Who can be deposed?

Answer 18

Any person including a party per 30(a)(1). Non-parties may be subpoenaed under Rule 45.

Question 19

How many depositions are allowed?

Answer 19

30(a)(2)(A)(i): 10

Question 20

What are the notice requirements for oral depositions?

Answer 20

1. Reasonable written notice; deponent’s name and address.
2. Time and place of deposition;
3. Any documents requested.
4. Method of recording

Question 21

Who is present at the deposition?

Answer 21

1. Parties and attornies
2. Deponent
3. A court officer appointed or designated under Rule 28.

Question 22

What can attorney ask at deposition?

Answer 22

i. Any question
ii. Party can object to question, but deponent still has to answer
iii. Atty can instruct deponent not to answer only to preserve privilege or enforce court-ordered limitation
iv. Party may motion to limit or terminate deposition if done in bad faith. or in manner that unreasonably embarrasses, annoys, or oppresses deponent.

Question 23

How to depose a corporation?

Answer 23

30(b)(6):

i. Describe with particularity the matter for deposition;
ii. Occurs when deposing firm.
iii. Named firm must designate officer to depose
iv. Person designated must testify about info known or reasonably available.

Question 24

Sanction for not attending

Answer 24

30(g): Fees recoverable if one shows up to other party’s deposition and the witness doesn’t appear or the noticing party doesn’t appear.

Question 25

When can discovery start?

Answer 25

26(d)(1): Not before the parties have had their 26(f) conference, except by stipulation or court order.

Question 26

When does a discovery conference have to happen?

Answer 26

26(f)(1): At least 21 days before a scheduling conference is to be held or a scheduling order is due

Question 27

What do parties have to do at the discovery conference?

Answer 27

26(f)(2): Develop a joint discovery plan and submit it to the court.

Question 28

Ongoing discovery duty

Answer 28

26(e)(1): To supplement and/or correct discovery
(A): in a timely manner
(B): as ordered by the court
Failure to supplement leads to major sanctions

Question 29

Rule 37 Six Steps

Answer 29

1. Serve Discovery
2. Confer in good faith
3. File motion to compel
4. Opposition to motion to compel
5. Court rules
6. Order violated?

Question 30

37a Motion to compel steps

Answer 30

I. include certification of good faith conference
II. Include why party should get discovery
III. Disclosure violations go to major league sanctions
IV. Discovery response
a. Fails to answer deposition
b. Firm fails to make a designation
c. Failure to answer interrogatory
d. Failure to product document or permit inspection

Question 31

Minor League Sanctions

Answer 31

a. Granted after motion to compel is granted. Imposed for for failure to disclose
b. Presumptive fee-shifting 37(a)(5)(A) unless
i. movant failed to confer in good faith;
ii. Obstinance justified
iii. Other circumstances make fee shifting unjust
c. Incomplete or evasive disclosure treated like failure to disclose.

Question 32

Major League Sanctions

Answer 32

a. Violation of court order or

b. Fee-shifting 37(b)(2)(C) plus merits sanctions under 37(b)(2)(A)(i)-(vi)

Question 33

Factors for determining whether dismissal of action is warranted:

Answer 33

Failure to comply due to:

1. Willfulness,
2. bad faith, or
3. fault of disobedient party.

Question 34

What are the gatekeepers “plus?”

Answer 34

Gatekeepers plus:

1. Annoyance
2. Embarrassment,
3. Oppression, or
4. Undue burden or expense

Question 35

Steps for motioning for a protective order

Answer 35

1. Serve discovery
2. Confer in good faith
3. File motion for a protective order 26(c)(1)
4. Opposing Party has opportunity to respond using gatekeeper arguments
5. Judge rules based on “good cause” standard = “gatekeepers plus.”
6. Minor league sanctions apply - fee shifting
7. No major league sanctions

Question 36

Alternate route for origin of protective order

Answer 36

37(a)(5)(B): The court may issue a protective order after receiving a motion to compel
a. Court orders reasonable expenses paid to non-moving party
(C): Motion to compel granted in part and denied in part; court may order protective order and apportion expenses.