Discovery Flashcards
Scope of discovery
Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action.
Information within the scope of discovery need not be admissible in evidence to be discoverable.
Sanctions: failure to preserve electronically stored information
A party may be subject to sanctions for failing to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation.
The court may:
(i) upon finding prejudice to another party, order measures no greater than necessary to cure the prejudice, or
(ii) upon finding that the party acted with the intent to deprive another party of the information, may:
(a) presume the lost information was unfavorable to the party;
(b) instruct the jury that it may or must presume the information was unfavorable, or
(c) dismiss the action or enter a default judgment.
Work product doctrine
Documents prepared in anticipation of litigation do not need to be disclosed to an adverse party unless:
(1) that party can demonstrate a “substantial need” for the documents and
(2) an inability to obtain substantially equivalent information without “undue hardship.” Fed. R. Civ. P. 26(b)(3)(A)(ii).
Report of a non-testifying expert
A report prepared by an expert who is not expected to testify is not discoverable in the absence of “exceptional circumstances” making it “impracticable” to obtain the information in another way. Fed. R. Civ. P. 26(b)(4)(D)(ii).
Initial disclosures
The initial disclosure rule applies to documents in the possession, custody, or control of a party that may be used to support the party’s claim or defense.
Initial disclosures under Rule 26(a)(1) must be made at or within 14 days after the parties’ discovery conference, unless a different time is set by stipulation or court order
Sanctions: types
Types of sanctions include:
(1) Stay of further proceedings;
(2) Dismissal of an action:
A severe sanction generally appropriate only when a party’s conduct is serious, repeated, extreme, and otherwise inexcusable;
(3) Entry of default judgment: a similarly severe sanction requiring egregious conduct;
(4) Striking the pleadings.
Limits on discovery
The court is required to limit the frequency or extent of discovery otherwise allowed by the rules if it determines, in its discretion, that the burden or expense of the proposed discovery outweighs its likely benefit, considering:
(1) the needs of the case;
(2) the amount in controversy,
(3) the parties’ resources;
(4) the importance of the issues at stake, and;
(5) the importance of the discovery in resolving the issues.
Scope of discovery
Pursuant to Rule 26(b), the scope of discovery is limited to relevant matters proportional to the needs of the case, considering:
(t) the importance of the issues at stake in the action;
(2) the amount in controversy;
(3) the parties’ relative access to relevant information, the parties’ resources;
(4) the importance of the discovery in resolving the issue, and;
(5) whether the burden or expense of the proposed discovery outweighs its likely benefit.
Motion to compel
Under Rule 37, if a party fails to make the automatic disclosures required by Rule 26(a) or fails to respond to discovery that has been properly served, the party seeking the information may move to compel such disclosure or discovery.
Generally, making a motion to compel is a prerequisite to obtaining any sanctions under Rule 37.
Sanctions: bad faith
A federal court may properly use its inherent power to assess attorney’s fees as a sanction for a defendant’s bad-faith conduct during the litigation.
It can assess attorney’s fees even if sitting in diversity and if the law of the forum state prohibits fee awards, as assessment of fees is considered a procedural issue.
