Discovery Flashcards
Two Biggest Distinctions from Federal Rules
(1) No mandatory disclosures
2) No numerical limits on forms of discovery (i.e., interrogatories
General Scope of Discovery
Parties may obtain discovery of any matter that is:
(1) Not privileged; and
(2) Relevant to subject matter of the litigation
Limits on Discovery
(1) Unreasonably cumulative
(2) Party seeking discovery had ample opportunity to obtain the information
(3) Burden/expense outweighs likely benefit
Work Product Doctrine
Protects documents prepared in anticipation of litigation by or for a party or the party’s representative
Exception to Work Product Doctrine
(1) Party has SUBSTANTIAL NEED; and
(2) Party unable to obtain substantial equivalent without UNDUE HARDSHIP
Court must protect against disclosure of mental impressions, conclusion, opinions, or legal theories of attorney
Discovery Tools
(1) Interrogatories
(2) Oral Depositions
(3) Written Depositions
(4) Requests for Production and Inspection
(5) Physical/Mental Exams
(6) Requests for Admission
Discovery Tools: Interrogatories
Written questions submitted to another party, to be answered by that party in writing
Must be given AT LEAST 30 DAYS to respond
Discovery Tools: Oral Depositions
Examination of a party or non-party witness, under oath, before someone who is legally capable to administer the oath
Reasonable notice required
Permission of court needed if sooner than 20 days after service
Discovery Tools: Written Depositions
Not used much
Discovery Tools: Requests for Production and Inspection
Party may request of another party production of documents and electronically stored information in their possession
Party may request entry onto land or other property in the possession or control of the receiving party for the purpose of inspecting, measuring, surveying, etc.
Procedure for Requests for Production
Request for production of documents should identify the documents or categories of documents being sought with REASONABLE PARTICULARITY
Responding party must respond to each request either by providing copies of the requested documents or electronically stored information, or by objecting
Discovery Tools: Physical and Mental Examinations
Court may order a person to submit to physical or mental exam if physical or mental condition is in controversy
Discovery Tools: Requests for Admission
Party may serve on any other party a request that the responding party admit the truth of matters relevant to the litigation
At least 30 days to respond
An admission conclusively establishes the admitted fact for the purposes of the pending litigation (CANNOT BE USED IN OTHER CASES)
Protective Order
A party resisting discovery on the ground that it is outside the scope permitted by the Rules may seek a protective order from the court
Required Steps BEFORE Moving for a Protective Order
(1) Party must make a REASONABLE EFFORT to resolve the dispute without the court’s intervention; and
(2) motion must DOCUMENT THE EFFORTS that the party made to resolve the dispute without the court’s intervention.
