Discovery Flashcards
What must be automatically disclosed?
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
What penalties for failure to make initial disclosures?
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)
When are initial disclosures made?
26(a)(1)(C): At or within 14 days after the parties’ rule 26(f) conference
What are the four gatekeepers?
26(b)(1): a. Privilege b. Relevance c. Proportionality 26(b)(3): d. Work product
What is privileged?
- Confidential communication between client and counsel
- for the purposes of obtaining legal advice
Privilege is absolute unless waived or a common law exception applies.
26(b)(5): privilege log rule.
What is relevant?
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.
What is proportional?
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.
What is work product?
Document or tangible thing otherwise discoverable prepared in anticipation of litigation, by or for a party or one of its representatives.
When is work product discoverable?
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.
How many interrogatories can be served?
33(a)(1): 25, unless leave for more is granted
To whom can interrogatories be served?
33(a)(1): only other parties
How long does a party have to respond to interrogatories?
33(b)(2): 30 days
To whom can requests for production be served?
34(a): Another party or a non-party if subpoenaed under Rule 45
How long does a party have to respond to a request for production?
34(b)(2)(A): 30 days to respond or to state objections (b)(2)(B)
What is the effect of an objection to a request for production?
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.
In what manner are documents to be produced?
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.
What is an oral deposition?
Sworn testimony under oath
Who can be deposed?
Any person including a party per 30(a)(1). Non-parties may be subpoenaed under Rule 45.
How many depositions are allowed?
30(a)(2)(A)(i): 10
What are the notice requirements for oral depositions?
- Reasonable written notice; deponent’s name and address.
- Time and place of deposition;
- Any documents requested.
- Method of recording
Who is present at the deposition?
- Parties and attornies
- Deponent
- A court officer appointed or designated under Rule 28.
What can attorney ask at deposition?
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.
How to depose a corporation?
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.
Sanction for not attending
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.
When can discovery start?
26(d)(1): Not before the parties have had their 26(f) conference, except by stipulation or court order.
When does a discovery conference have to happen?
26(f)(1): At least 21 days before a scheduling conference is to be held or a scheduling order is due
What do parties have to do at the discovery conference?
26(f)(2): Develop a joint discovery plan and submit it to the court.
Ongoing discovery duty
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
Rule 37 Six Steps
- Serve Discovery
- Confer in good faith
- File motion to compel
- Opposition to motion to compel
- Court rules
- Order violated?
37a Motion to compel steps
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
Minor League Sanctions
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.
Major League Sanctions
a. Violation of court order or
b. Fee-shifting 37(b)(2)(C) plus merits sanctions under 37(b)(2)(A)(i)-(vi)
Factors for determining whether dismissal of action is warranted:
Failure to comply due to:
- Willfulness,
- bad faith, or
- fault of disobedient party.
What are the gatekeepers “plus?”
Gatekeepers plus:
- Annoyance
- Embarrassment,
- Oppression, or
- Undue burden or expense
Steps for motioning for a protective order
- Serve discovery
- Confer in good faith
- File motion for a protective order 26(c)(1)
- Opposing Party has opportunity to respond using gatekeeper arguments
- Judge rules based on “good cause” standard = “gatekeepers plus.”
- Minor league sanctions apply - fee shifting
- No major league sanctions
Alternate route for origin of protective order
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.
