Discovery Flashcards
What does the Rule 26(g) Certification requirement do?
Certifies that all discovery requests, responses, objects and motions are, to the best of the person’s knowledge, info and belief, formed after reasonable inquiry and
- For required disclosures - that they are complete and correct at the time made
- For Requests, responses and objections - that it is consistent with rules, warranted by existing law or by non-frivolous argument for extending
Required Initial Disclosures - Rule 26(a)(1)
- Supporting Witnesses - name/contact info of individuals likely to have discoverable info (and subject of info) that party may use to support claims/defenses
- Supporting Documents - copies of all documents, electronic info, and tangible things that party has in its possession and that it may use to support claims/defenses
- Damages Info - computation of each category of damages
D must also disclose any insurance they have
When must a party provide their required initial disclosures?
within 14 days after the 26(f) conference
for parties served or joined later - within 30 days of being served or joined
Required Disclosures
- Required Initial Disclosures
- Expert Testimony
- Pre-Trial Required Disclosures
Expert Testimony - Rule 26(a)(2)
- Includes all testifying experts
Must provide written reports that contain the following:
- All opinions expert will provide and basis for them
- facts/data used to form opinions
- Exhibits that will be used
- Qualifications, including list of publications
- Cases in which expert has testified at trial or depo
- Compensation to be paid for study and testimony
Pre-Trial Required Disclosures - Rule 26(a)(3)
At least 30 days prior to trial (unless otherwise ordered), parties must provide to the parties and file with the court the following info re: all evidence that the party may present at trial (other than for impeachment) that the party expects to offer, as well as what it may offer if the need arises:
- Name and contact info for all witnesses the party may present at trial (other than for impeachment)
- Witnesses whose testimony the party expects to present by deposition and a transcript of the deposition; and exhibits
- Each party has 14 days to file objections
Depositions:
Who can be diposed?
Any party or non-party
- should subpoena a nonparty- or else they are not required to show up
- don’t have to subpoena a party
Depositions:
How are deposition questions answered?
Always orally - deponent testifies orally under oath
Rule 30 - live oral questions
Rule 31 - written questions read by court reporter 0 answers are always live.oral
Interrogatories:
Purpose?
usually to get background info or identity of people whom you will later depose
Interrogatories:
Who can be they be sent to?
Only parties
Interrogatories:
how long does a party have to answer?
30 days
Request to Produce:
What is this?
written request for access to documents of ESI or tangible things
Request to Produce:
Who can this be sent to?
Parties and Non-Parties
34(c) - can be used to get info from non-parties but they should be subpoenaed
- don’t have to subpoena parties
What is the only discovery tool that you need to obtain a court order for?
What do you need to show to obtain a court order?
Medical Examinations - Rule 35
Must show that the medical condition is in controversy and must show good cause - 35(a)
Who can be subject to a medical examination?
Party or someone in the party’s custody or legal control
- very narrow - does not include employer/employee - usually happens with parent/child
Request for Admission:
Who is this available to?
Only parties
Request for Admission:
what does this do?
Asks party to admit or deny any discoverable matter
Request for Admission:
How long does a party have to respond?
30 days
If party does not deny within 30 days, then it counts as an admission
Scope of Discovery Standard - Rule 26(b)(1)
What is discoverable?
we can discover any material that is relevant to a claim or defense and proportional to the needs of the case
When is discoverable material not proportional to the needs of the case?
if the burden of producing it outweighs the likely benefit
What is info is not discoverable?
Privileged Matters - confidential communications between a lawyer and client
Work Product -
work prepared in anticipation of litigation
What does a party have to show to overcome work product?
- Substantial need
2. The info is not otherwise easily available
What kinds of Work Product are absolutely protected?
Rule 26(b)(3)
- Mental Impressions
- Conclusions
- Opinions
- Legal Theories
Who can generate work product?
the party themself or any representative of the party - does not have to be a lawyer
What are the 3 ways a court can get involved in a discovery dispute?
- Responding party asks for Protective Order
- Responding party responds incompletely
- Responding party fails to attend depos, respond to interrogatories, or respond to requests for productions
What can a party do if a discovery request subjects them to undue burden, expense, etc.?
26(c)(1) - Ask court for a protective order
Court has very wide discretion here - can enter order denying discovery altogether or limit discovery on certain terms
What can a party do if a party responds incompletely to discovery requests?
Make a motion to compel
- if granted it would make the party answer that questions
What happens if a party violates a motion to compel
they can get hit with very serious sanctions under Rule 37(b)(2)
What happens if a party fails Completely to attend depos, respond to interrogatories, or respond to requests for production?
Party does not have to make a motion to compel -
Party will go directly to a motion for sanctions
Rule 16(b) Scheduling Order
Roadmap for how litigation will proceed
Rule 26(f) Conference
Parties are required to meet and talk about the case, possibility of settlement, potential problems with discovery, etc.
Pre-Trial Conferences
court can order conferences from time to time, demand parties to be there, that the lawyers be there as the case progresses
- court does this to monitor the case
Final Pre-Trial Conference
occurs after discovery is completed - very close to trial
- purpose is to discuss what issues will be tried
- results in final pretrial conference order
Final Pre-Trial Conference Order
Presents roadmap of what will happen at trial
- every witness you call will be listed
- every contention you will rely on will be listed
- all the evidence you rely on will be listed
If something is not listed, it can not be put on at trial unless you get lucky enough for judge to amend at trial
