Discovery Flashcards
Discovery:
Three categories of required disclosures
1) Initial disclosures
2) Expert witnesses
3) Pretrial disclosures
Discovery: Required Disclosures (Initial)
14 Days after Rule 26(f) conference, you must disclose:
(1) identities of persons with discoverable info you may use to support your case (name, #, subject)
(2) docs and things you may use to support your claims or defenses (copies or description)—only if they’re in your custody or control.
(3) computation of monetary relief, supported by docs/ESI supporting it.
(4) Insurance coverage
Discovery: Required Disclosures (Expert Witnesses)
Must identify expert witnesses “who may be used at trial”:
(1) identity
(2) written report by the expert witness, including (a) opinions EW will express, (b) bases for the opinions, (c) facts used to form the opinions, (d) EW’s qualifications, (e) how much EW is being paid.
Discovery:
Pretrial disclosures
1) Detailed info about trial evidence (witnesses, docs/ESI/things to be introduced at trial)
2) Provide no later than 30 days before trial
Discovery:
When can a party first requires discovery from other parties?
After Rule 26(f) conference
Enforcing Discovery Rules:
Electronically Stored Information is lost
If ESI is lost and the other party is prejudiced by this, the court can make orders curing the harm to the other party but it can only be to the extent to cure the harm.
No sanctions if reasonable steps were taken to secure ESI. If it was intentional, court may: Presume the info was unfavorable to the party, instruct the jury to presume that it was unfavorable, or dismiss the action and enter default judgment.
Enforcing Discovery Rules:
Form of Electronically Stored Information
If specific form is demanded, opposing party can give it in that form, or deny it because it is too costly or burdensome (and demanding party can get an order to receive it if they pay costs)
Discovery:
Scope
Can discover anything that is
1) relevant to the claim or defense; AND
2) proportional to the needs of the case
Relevance =/ admissible: must be “reasonably calculate to lead to admissible evidence”
Discovery:
Five discovery tools
1) Depositions (testify under oath from present recollection)
2) Interrogatories
3) Requests to produce
4) Medical exam (requires a court order)
5) Request for admission
Discovery:
Depositions
- testify under oath, from present recollection
- can “notice” a depo, but should subpoena nonparty
- can’t be required to travel >100 miles from residence or place of employment
- no more than 10 depos & can’t depose same person twice (unless court order or stipulation)
- Use at trial: impeachment, any purpose if adverse party, any purpose if deponent unavailable
Discovery Privileges
- Attorney-Client
2. Work Product (“trial preparation materials”
Discovery Privileges:
Work Product
Material prepared in anticipation of litigation by the party or any representative of the party.
Qualified work product: Requesting party might be able to get if he shows:
1) substantial need; AND
2) information is not otherwise available
Absolute privilege (opinion work product) Mental impressions, opinions, conclusions, and legal theories.
The ID of people with discoverable info is not work product.
Asserting privilege
Must claim the protection expressly and describe the materials in detail in a privilege log (need date, author, recipient, and privilege or protection claim)
Inadvertent production: Must notify other party promptly. That party must then return, request,er or destroy it pending decision by ct about whether there was waiver.
Enforcing Discovery Rules:
Protective Order
(1) Protective order
Can get if request subjects party to annoyance, em barrassment, undue burden, nor expense or that request is cumulative and nonproporotional.
Must certify: tried in good faith
Discovery:
Interrogatories
- Only for parties
- Time for response is 30 days
- Must respond from info reasonably available to you
- Maximum # = 25
Discovery:
Medical exam
- mental or physical
- must get a court order (must show that person’s health is in actual controversy and good cause)
- a party or someone under the party’s custody or legal control
- party seeking order gets to choose examiner
- person getting examined can request copy (but will waive any privilege he might have RE: that issue)
Discovery:
Requests for Admission
- Party only
- 30 days to respond
- Failure to specifically deny = deemed admission
- Can say you don’t know only if you state that you made reasonable inquiry and could not find enough information to admit or deny
Discovery:
Certification
Rule 11 doesn’t apply to discovery
But another rule requires every discovery request and response to be signed by counsel certifying:
- it is warranted
- it is not for improper purpose
- it is not unduly burdensome
Also have a duty to supplement
Enforcing Discovery Rules:
Motion to Compel / Sanctions
If partial response:
- move to compel
- If doesn’t comply, entitled to merits sanctions _ costs/fees RE motion
If no response:
1. Move directly to merits sanctions
Enforcing Discovery Rules:
Merits sanctions types
- Establishment order (establishes facts are true)
- Strike pleadings (RE: discovery issue)
- Disallow evidence (RE: discovery issue)
- Dismiss P’s case (if bad faith shown)
- Enter default judgment against D (if bad faith shown)
Discovery: Supplementation
Party must supplement required disclosures and prior responses to interrogatories, requests for production, or requests for admissions if she learns answer was not complete bc of new info.
