Discovery

Question 1

Discovery:

Three categories of required disclosures

Answer 1

1) Initial disclosures
2) Expert witnesses
3) Pretrial disclosures

Question 2

Discovery:
Required Disclosures (Initial)

Answer 2

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

Question 3

Discovery:
Required Disclosures (Expert Witnesses)

Answer 3

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.

Question 4

Discovery:

Pretrial disclosures

Answer 4

1) Detailed info about trial evidence (witnesses, docs/ESI/things to be introduced at trial)
2) Provide no later than 30 days before trial

Question 5

Discovery:

When can a party first requires discovery from other parties?

Answer 5

After Rule 26(f) conference

Question 6

Enforcing Discovery Rules:

Electronically Stored Information is lost

Answer 6

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.

Question 7

Enforcing Discovery Rules:

Form of Electronically Stored Information

Answer 7

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)

Question 8

Discovery:

Scope

Answer 8

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”

Question 9

Discovery:

Five discovery tools

Answer 9

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

Question 10

Discovery:

Depositions

Answer 10

• 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

Question 11

Discovery Privileges

Answer 11

1. Attorney-Client

2. Work Product (“trial preparation materials”

Question 12

Discovery Privileges:

Work Product

Answer 12

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.

Question 13

Asserting privilege

Answer 13

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.

Question 14

Enforcing Discovery Rules:

Protective Order

Answer 14

(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

Question 15

Discovery:

Interrogatories

Answer 15

• Only for parties
• Time for response is 30 days
• Must respond from info reasonably available to you
• Maximum # = 25

Question 16

Discovery:

Medical exam

Answer 16

• 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)

Question 17

Discovery:

Requests for Admission

Answer 17

• 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

Question 18

Discovery:

Certification

Answer 18

Rule 11 doesn’t apply to discovery

But another rule requires every discovery request and response to be signed by counsel certifying:

1. it is warranted
2. it is not for improper purpose
3. it is not unduly burdensome

Also have a duty to supplement

Question 19

Enforcing Discovery Rules:

Motion to Compel / Sanctions

Answer 19

If partial response:

1. move to compel
2. If doesn’t comply, entitled to merits sanctions _ costs/fees RE motion

If no response:
1. Move directly to merits sanctions

Question 20

Enforcing Discovery Rules:

Merits sanctions types

Answer 20

1. Establishment order (establishes facts are true)
2. Strike pleadings (RE: discovery issue)
3. Disallow evidence (RE: discovery issue)
4. Dismiss P’s case (if bad faith shown)
5. Enter default judgment against D (if bad faith shown)

Question 21

Discovery: Supplementation

Answer 21

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.