Discovery Flashcards
Certifying Discovery
Rule 26g
Certification requirement, when you sign discovery documents you are certifying they are complete and not for improper use.
Required Disclosures
26a 1, 2, 3
Under this rule parties must produce certain information without request from the other party.
26(a)(1)
- must identify people with discoverable information that you may use to support your case
- must give copies or descriptions of things you may use to support your case
- P must give calculation of damages and def must disclose insurance
26(a)(2)
Expert testimony
-Must give over even if other side does not ask for it
Discovery Tools
- depositions
- interrogatories
- request to produce
- the medical exam
- Request for admission
Depositions
Rule 30
- deponent testifies orally under oath answering questions by lawyers of various parties
- there can be depositions of both parties and non-parties (should subpoena non-party)
Interrogatories
Rule 33
- written questions answered in writing under oath
- 30 days to answer
- usually used for background information
- can only be sent to parties **
Request to Produce
Rule 34
- written request for access to things
- 34c allows use of this tool to get info from non-parties, but you should subpoena
The medical exam
Rule 35
- must get a court order
- only can get this for party or someone in party’s custody or legal control
Request for Admission
Rule 36
- asks to admit or deny any discoverable matter
- if you do not deny, you have admitted
- only available to parties
Standard for what is discoverable
Rule 26(b)(1)
- we can discover material that is relevant to a claim or defense and proportional to the needs of the case (not proportional if burden of producing outweighs likely benefit)
- some things can be relevant but inadmissible at trial (think hearsay) as long as its calculable to lead to discoverable info
Privileged Matter
NEVER discoverable, even if it’s relevant.
- attorney client privilege
- parties can object and say information is privileged
Work Product
26(b)(3)
- work product if prepared in anticipation for litigation
- protected from discovery, no matter how relevant or useful
- mental impressions, conclusions, opinions, and legal theories are always protected
- can be generated by the party herself or any representatives of the party (doesn’t have to be lawyer)
Work product can be overridden if two things are shown:
- substantial need
2. information is not otherwise easily available (think witness dead or out of country)
How Courts become involved in discovery proceedings
- responding party asks for protective order (26(c))
- When responding, party responds incompletely
- When responding party fails completely
If responding party asks for protective order
(26(c))
Court has great discretion here, can enter an order denying discovery or limiting it on certain terms
If a party responds incompletely
Party seeking discovery can make motion to compel which forces parties to answer unanswered questions
If responding party fails completely
Party seeking discovery does not have to make motion to compel, make motion for sanctions under 37(d)(1)(a)
Scheduling order
16b court must enter scheduling order - roadmap for litigation proceedings
- this occurs early in the case - scheduling in 16b2
Parties Meet
26f
- Parties required to meet and discuss case, potential settlement, problems w discovery
- detailed discovery plan and submit it to the court
- must produce their own required disclosures under 26(a)(1) (NO more than 14 days before 26f meeting)
Pretrial Conferences
- Can occur at any point the court orders throughout the litigation
- discuss what issues will be tried
- results in pretrial conference order - roadmap of what will happen at trial
