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Federal Civil Procedure > Discovery > Flashcards

Discovery Flashcards

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Civil Procedure 1L flashcards
1
Q

What are Required disclosures?

A

This material must be produced even though no one asks for it.

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2
Q

What are the three required disclosures?

A

PIE

  1. Pretrial disclosures.
  2. Initial disclosures
  3. Experts disclosures.
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3
Q

What needs to be included in initial disclosures? (required disclosure)

A

must identify persons and give copies (or description) of documents or electronically stored info likely to have discoverable information that the disclosing party may use to support its claims or defenses, computation of damages and insurance for any judgment.

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4
Q

What time period do parties have to make initial disclosures?

A

Unless court order or stipulation of parties differs, in most cases, within 14 days of the Rule 26(f) conference

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5
Q

What must be disclosed in a expert disclosure?

A

As directed by court, must identify experts who may be used at trial, written report containing opinions, data used, qualifications, compensation, etc.

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6
Q

What must be disclosed in pretrial disclosures?

A

must give detailed information about trial

evidence, including documents and identity of witnesses to testify live or by deposition.

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7
Q

Under what time period must pretrial disclosures be given?

A

No later than 30 days before trial

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8
Q

At what point may discovery tools be used?

A

These may not be used until after Rule 26(f) conference unless court order or stipulation allows

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9
Q

What is the key issue with discovery tools?

A

You can use them to get information form non-parties.

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10
Q

Who can you you depose?

A

Non-parties or parties.

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11
Q

What do you have to do to get a non-party to attend a deposition?

A

Nonparty should be subpoenaed, or

she is not compelled to attend

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12
Q

What if you want a party or non-party to bring something?

A

You should use a subpoena duces tecum which requires the deponent to bring material (e.g., documents) with her.

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13
Q

Do you need to subpoena a party to attend a deposition?

A

Party need not be subpoenaed; notice of the deposition, properly served, is sufficient to compel attendance.

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14
Q

How many depositions can you take?

A

Cannot take more than 10 depositions court approval or stipulation.

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15
Q

How many times can you depose the same person?

A

Once, cannot depose the same person twice without court approval or stipulation

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16
Q

How long can the deposition be?

A

Deposition cannot exceed one day of seven hours unless court orders or parties stipulate.

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17
Q

What three purposes can the deposition be used for?

A

Use at trial (all subject to rules of evidence): (1) impeach the deponent; (2) any purpose if the deponent is an adverse party; (3) any purpose if the deponent (regardless of whether a party) is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence.

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18
Q

What is the maximum amount of miles that a non-party can be required to travel fr a deposition?

A

Unless she agrees, nonparty cannot be required to travel more than 100 miles from her residence or place where she regularly transacts business for the depo.

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19
Q

What may be required if you are serving a business with a subpoena?

A

Notice of subpoena to a business may require it to designate the right person for deposition (e.g., to depose the person who designed a particular product).

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20
Q

What are Interrogatories.?

A

Questions propounded in writing to another party, to be answered in writing under oath.

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21
Q

How long does a party have to respond to Interrogatories? What two ways can the party respond?

A

Must respond with answers or objections within 30 days

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22
Q

What if you don’t know the answer to an interrogatory?

A

Can say you don’t know the answer, but only after reasonable investigation.

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23
Q

What if the answer to an interrogatory could be found in business records and it would be burdensome to find it?

A

can allow requesting party access to those records.

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24
Q

How many interrogatories can a party serve?

A

Cannot serve more than 25 (including subparts) without court order or stipulation.

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25
Q

Who’s answers to interrogatories may you use at trial?

A

At trial, you cannot use your own answers to interrogatories; other party’s may be used per rules of evidence

26
Q

What are requests to produce?

A

Requests to another party (or to non-party if accompanied by subpoena) requesting that she make available for review and copying various documents or things, including electronically stored info (ESI), or permit entry upon designated property for inspection, measuring, etc.

27
Q

How long does a party have to respond to requests to produce? What two ways can the party respond?

A

Must respond within 30 days of service, stating that the material will be produced or stating objection.

28
Q

When is a physical or mental examination available?

A

Only available through court order

29
Q

What does a party need to show to get an opposing party to submit to a physical or mental examination?

A

on showing that party’s (or person in party’s control, e.g., parent in control of child) health is in actual controversy and good cause (i.e., you need it and can’t get it elsewhere).

30
Q

What is a request for an admission?

A

A request by one party to another party to admit the truth of any discoverable matters.

31
Q

What is a request for an admission often used for?

A

Often used to authenticate documents

32
Q

How long does the requested party have to respond to a request for admission?

A

Must respond within 30 days of service.

33
Q

What responses are available for a request for admission?

A

The response is to admit or deny; can indicate lack of information only if indicate you’ve made a reasonable inquiry.

34
Q

In a request for an admission what is the effect of a failure to deny?

A

Failure to deny tantamount to admission; can amend if failure not in bad faith.

35
Q

What if you fail to deny in a response for a request for an admission, can you amend?

A

can amend if failure not in bad faith.

36
Q

What must parties and counsel do for answers and requests for discovery?

A

Sign them under oath.

37
Q

By signing answers and requests for discovery what are counsel certifying?

A

(1) it is warranted, (2) not interposed for

improper purpose, and (3) not unduly burdensome.

38
Q

After your response, things change, so now you know your response to required disclosure, interrogatory, request for production, or request for admission is incomplete or incorrect. What must you do?

A

You must supplement your response

39
Q

What can you discover?

A

anything reasonably calculated to lead to the discovery of admissible evidence

40
Q

In discovery, one party asks about hearsay that would not be admissible at trial. The
other party objects because the info would not be admissible. Is this a good objection?

A

No

41
Q

In discovery, one party asks about hearsay that would not be admissible at trial. The other party objects because the info would not be admissible.This is not a good objection. Why?

A

Admissibility is not the test. Relevancy is broader than admissibility.

42
Q

What kind of communications can you not discover?

A

you cannot discover communications protected by privilege

43
Q

What is a huge category that is generally protected form discovery?

A

Work product or “trial preparation materials” (this is material prepared in anticipation of litigation).

44
Q

Howell sues Skipper for losses sustained when a vessel sank. Skipper, fearing the suit, had hired Shore, an attorney, who interviewed Gilligan, a witness to the sinking. Shore (a) had Gilligan write a statement regarding the incident; (b) made a note that based on what Gilligan says, there appears to be no defense; and (c) made a note that Gilligan is stupid and would make a lousy witness at trial. Which of these are work product?

A

All three items are work product, because each was generated in anticipation of
litigation.

45
Q

When is work product discoverable?

A

They are discoverable if the opposing party shows 1) substantial need 2) it is not otherwise available.

46
Q

What work product is absolutely protected?

A

(1) mental impressions, (2) opinions, (3) conclusions, and (4) legal theories.

47
Q

Howell sues Skipper for losses sustained when a vessel sank. Skipper, fearing the suit, had hired Shore, an attorney, who interviewed Gilligan, a witness to the sinking. Shore (a) had Gilligan write a statement regarding the incident; (b) made a note that based on what Gilligan says, there appears to be no defense; and (c) made a note that Gilligan is stupid and would make a lousy witness at trial.

What work product evidence could potentially be discoverable? Why?

What work product evidence is absolutely protected? Why?

A

Item (a) (the witness statement by Gilligan) is discoverable if Howell shows 1) substantial need 2) it is not otherwise available.

BUT items (b) and (c) are absolutely protected because they are (1) mental
impressions, (2) opinions, (3) conclusions, and (4) legal theories.
48
Q

Does work product have to be generated by a lawyer?

A

No. it can be by a party or any representative of a party. it does not need to be by an attorney.

49
Q

What must you do to claim privilege under work product?

A

If you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection expressly and particularly describe the materials in a privilege log.

50
Q

If you inadvertently produced protected material what do you do?

A

notify the other party as soon as possible.

51
Q

If you inadvertently produced protected material and notify the other party what does the other party have to do?

A

The other party then has to return, sequester, or destroy it pending decision by the court about whether there has been a waiver.

52
Q

Which expert may a party depose?

A

any expert “whose opinions may be presented at trial.”

53
Q

What is the purpose of a protective order? Who seeks it?

A

Responding party seeks protective order (e.g., request is overburdensome, or involves trade secrets and we want an order limiting disclosure to the litigation or ESI is not reasonably accessible (e.g., deleted files).

54
Q

Receiving party answers some and objects to others. If the objections are not upheld, this is a ____________?

A

Partial violation

55
Q

Receiving party fails completely to attend deposition, respond to interrogatories or to respond to requests for production. This is a ___________?

A

Total violation

56
Q

If a party fails to produce ESI because it was lost in the good faith, routine operation of an electronic info system, are there sanctions?

A

Only in extraordinary cases

57
Q

What are the 2 steps to get sanctions for a partial violation?

A

(1) Can get an order compelling the party to answer the unanswered questions, plus costs (including attorney’s fees) of bringing motion.
(2) IF the party violates the order compelling him to answer, RAMBO sanctions plus costs (and attorney’s fees for the motion) and could be held in contempt for violating a court order (except no contempt for refusal to submit to
medical exam).

58
Q

What do you do if there is a total violation?

A

Go straight to RAMBO sanctions,plus costs (and attorney=s fees for bringing the motion). No need to get an order compelling answers first

59
Q

What sentence do you always include in your answer when trying to get sanctions against the other party?

A

“The party seeking sanctions must certify to the court that she tried in good faith to get the info without court involvement.”

60
Q

What RAMBO sanctions choices are available to the judge?

A

Egg Sandwiches Damn Crazy Delicious

    • Establishment order (establishes facts as true)
    • Strike pleadings of the disobedient party (as to issues re the discovery)
    • Disallow evidence from the disobedient party (as to issues re the discovery)
    • dismiss plaintiff’s Case (if bad faith shown)
    • enter Default judgment against defendant (if bad faith shown)

Federal Civil Procedure (14 decks)

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