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Civil Procedure > Discovery > Flashcards

Discovery Flashcards

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Civil Procedure 1L flashcards
1
Q

Certifying Discovery

A

Rule 26g
Certification requirement, when you sign discovery documents you are certifying they are complete and not for improper use.

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2
Q

Required Disclosures

A

26a 1, 2, 3

Under this rule parties must produce certain information without request from the other party.

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3
Q

26(a)(1)

A
  • 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
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4
Q

26(a)(2)

A

Expert testimony

-Must give over even if other side does not ask for it

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5
Q

Discovery Tools

A
  1. depositions
  2. interrogatories
  3. request to produce
  4. the medical exam
  5. Request for admission
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6
Q

Depositions

A

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)
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7
Q

Interrogatories

A

Rule 33

  • written questions answered in writing under oath
  • 30 days to answer
  • usually used for background information
  • can only be sent to parties **
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8
Q

Request to Produce

A

Rule 34

  • written request for access to things
  • 34c allows use of this tool to get info from non-parties, but you should subpoena
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9
Q

The medical exam

A

Rule 35

  • must get a court order
  • only can get this for party or someone in party’s custody or legal control
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10
Q

Request for Admission

A

Rule 36

  • asks to admit or deny any discoverable matter
  • if you do not deny, you have admitted
  • only available to parties
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11
Q

Standard for what is discoverable

A

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
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12
Q

Privileged Matter

A

NEVER discoverable, even if it’s relevant.

  • attorney client privilege
  • parties can object and say information is privileged
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13
Q

Work Product

A

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)
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14
Q

Work product can be overridden if two things are shown:

A
  1. substantial need

2. information is not otherwise easily available (think witness dead or out of country)

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15
Q

How Courts become involved in discovery proceedings

A
  1. responding party asks for protective order (26(c))
  2. When responding, party responds incompletely
  3. When responding party fails completely
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16
Q

If responding party asks for protective order

A

(26(c))

Court has great discretion here, can enter an order denying discovery or limiting it on certain terms

17
Q

If a party responds incompletely

A

Party seeking discovery can make motion to compel which forces parties to answer unanswered questions

18
Q

If responding party fails completely

A

Party seeking discovery does not have to make motion to compel, make motion for sanctions under 37(d)(1)(a)

19
Q

Scheduling order

A

16b court must enter scheduling order - roadmap for litigation proceedings
- this occurs early in the case - scheduling in 16b2

20
Q

Parties Meet

A

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)
21
Q

Pretrial Conferences

A
  • 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

Civil Procedure (12 decks)

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