Discovery

Question 1

What is the deadline for initial disclosures?

Answer 1

within 14 days of the Rule 26(f) conference.

Question 2

What must each party disclose under the initial disclosures rule?

Answer 2

1. Identities of persons who have discoverable info that you (the disclosing party) may use to support your claims or defenses
2. Documents and things you may use to support your own claims or defenses. You may produce copies or a description of these things.
   
   • Must include photographs, ESI, and tangible things (e.g. remnants of a busted tire).
3. Computation of relief and documents/ESI supporting it.
4. Insurance coverage. D must disclose any insurance that might cover all or part of the judgment in the case.

Do not need to disclose documents that don’t help you but help the other party.

Question 3

Initial disclosure info you need to give about people who may support your claims or defenses

Answer 3

Name, telephone number, address, and topics on which they have evidence.

Question 4

Under initial disclosures, if you are aware of documents, ESI, or things that support your case, but they are not in your custody or control, must you disclose them?

Answer 4

No.

Question 5

Disclosure of insurance during initial disclosures

Answer 5

Even though insurance is likely not admissible at trial, D must disclose it during initial disclosures

Question 6

Effect of faulure to disclose something you were required to disclose

Answer 6

You cannot use that material in the case unless the failure to disclose was substantially justified or harmless

Question 7

Suppose a party hired an expert to help it prepare the case, but does not intend to call that expert to testify at trial. Is this an expert witness?

Answer 7

No, that is a consulting expert.

Facts known and opinions held by consulting experts are generally not discoverable—only in “exceptional circumstances.”

Question 8

As to an EW “who may be used at trial,” what must each party generally disclose to the other parties?

Answer 8

Identity of the EW and a written report by the EW. The report must include:

1. opinions EW will express,
2. bases for the opinions,
3. facts used to form the opinions,
4. EW’s qualifications, and
5. how much EW is being paid.

Question 9

May a party take a deposition of an EW?

Answer 9

Yes.

That party should subpoena EW to compel her attendance.

That party must pay the EW a reasonable fee per hour (set by the court).

Question 10

Expert Witness and Work Product

Answer 10

Earlier drafts of the EW report and communications between the lawyer and the EW are work product.

Question 11

Failure to disclose Expert Witness

Answer 11

If you fail to disclose EW you were required to disclose, you cannot use the EW in the case unless your failure was justified or harmless.

Question 12

Pretrial Discloure requirements

Answer 12

For a required pretrial disclosure, you must give:

• detailed information about trial evidence,
  
  • including identity of witnesses to testify live or by deposition and documents/ESI/things to be introduced at trial
• no later than 30 days before trial.

Question 13

Assuming no court order or stipulation provides other- wise, a party cannot send discovery requests to another party until…

Answer 13

After the Rule 26(f) conference.

Minor exception: you can serve requests to produce earlier—more than 21 days after service of process. They are treated as though served at the Rule 26(f) conference.

Question 14

Procedure for presenting written deposition

Answer 14

If a deposition is written, it is read by the court reporter.

Question 15

Deponent Preperation Requirements

Answer 15

A deponent is not required to review all her relevant files and notes before being deposed.

Question 16

Unless a nonparty agrees, what is the farthest she can be required to travel to have her deposition taken?

Answer 16

100 miles from where she resides or is employed.

Question 17

Subpoena Duces Tecum

Answer 17

A subpoena duces tecum requires the deponent to bring requested materials with her.

Question 18

How to depose someone in a particular company role whose name you do not know

Answer 18

If you don’t know the name of a particular person from a company you want to depose, you can notice the company.

They then must designate the proper person to be deposed.

Question 19

What are the limits on depositions?

Answer 19

You cannot take more than 10 depositions or depose the same person twice without court approval or stipulation.

Deposition cannot exceed one day of seven hours unless court orders or parties stipulate.

Question 20

How are depositions used at trial?

Answer 20

• Impeach the deponent;
• any purpose if the deponent is an adverse party;
• any purpose if the deponent (regardless of whether a party) is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence.