Discovery Flashcards
What discovery has to be filed with the court?
Neither requests for production nor what is produced has to be filed with the court.
Exception: Pretrial disclosures are served on the parties and filed with the court under FRCP 26(a)(3)
What are required disclosures? (3) FRCP 26(a)
(1) Initial Disclosures
(2) Disclosure of Expert Testimony
(3) Pre-Trial Disclosures
What if you have to supplement or correct disclosures? FRCP 26(a)(1)(A)
Have to do so in a timely manner or if ordered to do so by the court
Timing for initial disclosures? FRCP 26(a)(1)
- Must be served within 14 days of Pre-Trial conference under Rule 26(f)
- For parties joined later, have 30 days after they are served
What is required in initial disclosures? FRCP 26(a)(1)
(1) Supporting witnesses
(2) Supporting documents
(3) Damages Info
(4) Insurance Info
Can excuses be made for pre-trial disclosures?
NO, excuses are not allowed FRCP 26(a)(1)(E)
What rule governs the disclosure of expert testimony?
FRCP 26(a)(2)
What must expert testimony include?
FRCP 26(b)
- All testifying experts
- Written reports that contain the following:
(1) All opinions experts will provide and basis for them
(2) Facts / data used to form opinions
(3) Exhibits that will be used
(4) Qualifications, including list of publications
(5) Cases in which expert has testified at trial or deposition
(6) Compensation to be paid for study and testimony
When must expert disclosures be served?
90 days before trial
OR
Within 30 days after opposing party’s expert disclosure
FRCP 26(d)
How long does a party have to file objections against expert disclosure?
14 days FRCP 26(a)(3)(B)
What FRCP governs depositions?
FRCP 30
Who can depositions be served upon?
Parties and non-parties
Note: Non-parties can’t be forced to attend a deposition more than 100 miles from their residence / employment / regular transaction of business AND must be served within that district or within 100 miles of the deposition site.
What are the notice requirements for a deposition and who is entitled to be there?
In addition to the court reporter, all parties and their attorneys are entitled to notice and can attend all depositions and ask questions
FRCP 30(b)(1)
Is there a limit on the number of depositions?
- 10 depositions
- 1 per person
- 7 hours each
If more needed, parties can stipulate or seek a court order
Can depositions be recorded?
Yes, by audio, video, or stenography or can seek leave to do so otherwise (e.g. Zoom)
FRCP 30(b)(3-4)
Who is responsible for the costs of a deposition?
The party taking the deposition
FRCP 30(b)(3)(B)
What information is sought in a deposition?
Sworn testimony from a specific individual or corporation. Can also seek documents.
What is a deposition?
Testimony under oath
Can objections be made in a deposition?
Objections can and should be made. Only cannot seek privileged info or be asked questions beyond the limits imposed by the court
FRCP 26(c)
What can a deposition be used for?
- To impeach a trial witness
OR - Transcript admitted as evidence for trial
What rule governs depositions by written questions?
FRCP 31
What is a deposition by written questions?
A party can submit written questions to another party / non-party (requiring a subpoena) and require them to answer.
A court reporter is present.
Other parties can ask questions too.
What are the pros and cons of deposition by written questions?
Benefits:
- less expensive
Drawbacks:
- no opportunity for follow-up questions
What FRCP governs Interrogatories?
FRCP 33
When must an interrogatory be responded to?
Must be served within 30 days
FRCP 33(b)(2)
Who can an interrogatory be served upon?
Can only be served on participants in the litigation
FRCP 33(a)(1)
Are there any limits on interrogatories?
Limited to 25 questions unless permitted more by a court
FRCP 33(a)
What types of questions can be asked in an interrogatory?
Can probe legal theory / factual support including contention interrogatories
Are interrogatories signed once completed?
Must be completed and signed by parties under oath and have the same effect as admissions
FRCP 33(b)
Why use interrogatories?
Good tool for identifying issues that are / aren’t in dispute and to assist with formulating stipulations
What FRCP governs requests for the production of documents? (2)
FRCP 34 and 35
What types of materials can be requested?
Documents, ESI, or tangible things
FRCP 34(a)(1)
Can you request access for inspection?
Yes
FRCP 34(a)(2)
What is needed in a request for inspection?
- Description of item or category of items
- Specify a reasonable time, place, and manner for inspection
- Specify the form in which you want the ESI produced
FRCP 34(b)(1)
Who can a request for production be served upon?
Parties and non-parties (subpoena needed)
FRCP 45
What is the timing for service and responses for requests for production of documents?
Earliest is 21 days after S&C served but not considered until meet and confer Rule 26(f) conference
FRCP 26(d)(2)
Responses must be served within 30 days.
FRCP 34(b)(2)(A)
How should documents be produced?
Must be produced in the order in which they are normally stored
FRCP 34(b)(2)(E)
How do you respond to a request for documents?
- Agree to permit inspection or produce
- Produce copies of documents or ESI instead of permitting inspection
- Object with specificity and state whether any responsive materials are being withheld on the basis of said objection
- Object to form of ESI request / offer alternative form
FRCP 34(b)
What FRCP governs a request for a physical or mental examination?
FRCP 35
When can a physical or mental examination be requested?
Need court order when party’s mental or physical condition is in controversy and for a good cause
FRCP 35(a)
What FRCP governs requests for admission?
FRCP 36
Who can a request for admission be served on and what effect does it have?
Only parties and has the effect of admission in a responsive pleading (but only for that matter)
Is there a limit on requests for admission?
NO
How long does a party have to respond to a request for admission?
30 days to respond, otherwise admitted
What does a response to a request for admission need to include?
Admit or deny or object
What is protected by attorney / client priviledge?
- Communications (not underlying facts)
- Made by client
- To counsel
- For purpose of securing legal advice
Can privilege be waived?
YES
- By inclusion of a 3P to the communication
- By disclosure of the communication to a 3P
- By outing the communication in issue in litigation
What if you inadvertently disclose discovery?
Rule 26(b)(5)
How do you object to requests for privileged info?
Object the request stating that it calls for privileged information or work product. Also need to describe the nature of the documents, communications, or other tangible things to enable other parties to assess the claim.
FRCP 26(b)(5)(A)
Can a court place limits on frequency and extent of discoverable info?
YES
- If requests are unreasonably cumulative or duplicative
- Can be obtained from some other source that is more convenient, less burdensome, or less expensive
- Party seeking discovery had ample opportunity to obtain the info by discovery in the action
- Requests that aren’t proportional to the case
FRCP 26(b)(2)(C)
When can a protective order be filed?
- Annoyance
- Embarrassment
- Oppression
- Undue burden or expense
FRCP 26(c)
How does a court assess proportionality?
- Importance of issues at stake
- Amount in controversy
- Parties’ relative access to relevant info
- Parties’ resources
- Importance of discovery in resolving issues
- Does burden / expense outweigh likely benefit
FRCP 26(b)(1)
What is work product?
FRCP 26(b)(3)
- Anything prepared in anticipation of litigation or for trial
- By or for another party or its representative
What are exceptions and exclusions to Work Product?
- A showing of a substantial need to prepare case and cannot, without undue hardship, obtain a substantial equivalent by another means
- Any party / person can obtain their own written statements
- Absolute immunity for mental impressions, conclusions, opinions, legal theories all protected from disclosure
FRCP 26(b)
What about work product regarding experts?
FRCP 26(b)(4)
- Expert’s draft reports / disclosures
- Communications bw attorney and testifying expert
- Facts known / opinions held by non-testifying experts
What is a discovery meet & confer?
FRCP 26(f)
Before a court issues a scheduling order or calls for a scheduling conference, parties must “meet & confer” at least 21 days prior to attempt to seek agreement on a number of issues
What must be discussed at a meet & confer?
- Nature and basis of claims and defenses and possibilities for prompt settlement or resolution of some / all of the case
- Arrangements for initial disclosures
- Discuss any issues about preserving discoverable information
- Develop proposed discovery plan
What is a discovery plan and what is the timing of one?
14 days after “meet and confer,” parties must submit a written plan of discovery to the court
FRCP 26(f)(2)
What is in a discovery plan?
- Changes made in timing, form, or requirement for disclosures
- Subjects on which discovery may be needed, when it should be completed, whether it should be conducted in phases or limited on particular issues
- Any issues about disclosure or discovery of ESI
- Changes in limitations on discovery imposed under the rules
- Any other orders the court should issue
What FRCP governs scheduling orders?
FRCP 16
What is the timing of a scheduling order?
Issued “as soon as practicable” after the discovery plan is received
Generally issued within 90 days of ∆ being served or 60 days after an appearance
What FRCP governs Pre-Trial Conferences?
FRCP 16
What is the purpose of Pre-Trial Conferences?
To make stipulations / admissions, and the parties need to be ready to consider settlement.
Pre-Trial Conferences are designed to streamline and govern litigation proceedings.
FRCP 16(c)(1-2)
What happens after the final Pre-Trial conference?
Order will reflect both parties’ trial plans and can only be modified to prevent “manifest injustice”
What are sanctionable acts and what sanctions are available under FRCP 16(f)?
Sanctionable acts:
- Failure to appear
- Failure to come prepared
- Failure to participate in good faith
- Failure to abide by pre-trial order
Sanctions include:
- Payment of attorney fees / costs incurred because of noncompliance
(unless noncompliance was justified)
What FRCP governs Lawyers’ responsibilities in discovery?
FRCP 26(g)
What responsibilities do lawyers have under FRCP 26(g)?
Must certify that all discovery requests, responses, objections, and motions are, to the best of the person’s knowledge, information, and belief, formed after reasonable inquiry
What consequences are there for noncompliance with FRCP 26(g)?
- Documents stricken if no certifying signature (unless there is substantial justification)
- Payment of reasonable expenses and attorney’s fees caused by failure to develop a discovery plan
What FRCP governs motions to compel and protective orders?
FRCP 37(a)
When is a motion to compel warranted?
- If a party provides incomplete or evasive disclosures, or fails to respond to discovery requests
- An evasive or incomplete disclosure, answer, or response is treated as complete failure to disclose
- A court may order disclosure plus payment of expenses incurred in making the motion
What FRCP governs sanctions for failing to comply with a court order?
FRCP 37(b)
What sanctions can a court order for failure to comply with a court order?
See FRCP 37(b)(2)(A)(i-vii)
What FRCP governs failure to disclose, supplement, or admit?
FRCP 37(c)
What FRCP governs failure to attend deposition, serve answers, or respond
FRCP 37(d)
What FRCP governs failure to preserve ESI?
FRCP 37(e)
In general sanctions won’t be imposed if the party can establish that:
- Request was objectionable
- Failure to produce was substantially justified
- Other circumstances exist that would make it unjust
