Discovery Flashcards
Depositions
- Can be oral/written (if written - read by court reporter)
- Can depose nonparties or parties - Must subpoena nonparties because they’re not compelled to attend!
- Can’t take more than 10 or depose same person twice without court approval (can’t be more than 7 hours)
- Unless agreed to, can’t compel party to travel more than 100 miles
Interrogatories
COMES BEFORE DEPOSITION!!!
- Questions produced in writing to ANOTHER PARTY to be answered in writing under oath!
- Must respond within 30 days of receipt by objection OR answer
- Can’t serve more than 25 without court approval
Requests to Produce
Requests to another party (or non-party by subpoenas) to make available for review and copying various documents or things, including ESI
- Must respond within 30 days of service
Physcial/Mental Examination
Only available through court order on showing that party’s health is in actual controversy and “good cause.”
Duty to Supplement
If a party learns that its response to required disclosure, interrogatory, request for production, or request for admission is incomplete or incorrect, you have to supplement.
Scope of Discovery
SCOPE: Anything relevant ("reasonably calculated to lead to the discovery of admissible evidence") to a claim or defense.
The key to discovery tools is - which can be used to get information from a nonparty!
Depositions
Interrogatories
Requests to Produce
Physical/Mental Examination
Request for admissions
Duty to SupplementWork Product
*Can be generated by any party
- Work product or trial preparation (material prepared in anticipation of litigation) is generally protected from discovery.
EXCEPTION:
1. Substantial need AND
2. Not otherwise available
Rambo Sanctions
Sanctions available to judge:
- Establishment order (establishes facts as true)
- Strike pleadings of the disobedient party (as to issues regarding discovery)
- Disallow evidence from the disobedient party (as to issues regarding discovery)
- Dismiss PL’s case (if bad faith shown)
- Enter default judgment against defendant (if bad faith shown)
Joining Parties
HINT: Joinder rules that start with “C” (Counterclaim, Crossclaim) are claims between parties. Claims that start with “I” involve joining someone new to the case.
Proper parties (must have SMJ unless through SJ):
- arise from same T/O;
- Raise at least one common question.
Necessary and Indispensable Parties: Same absentees (non-parties) must be forced to join.
- Who’s necessary? Can’t complete case without A; A’s interest may be harmed, or A claims interest which subjects party to multiple obligations
- Can they be joined? PJ, joining won’t destroy diversity
- If they can’t be joined, courts MUST: proceed without party OR dismiss
Impleader
MOST IMPORTANT!
*Joining someone new. Bringing them in for INDEMNITY OR CONTRIBUTION
A third-party claim under Rule 14 is the joinder (by the defendant) of another party not originally a party to the action.
- Must bring in within 14 days.
- Must have PJ to serve on impleading party
- PL can assert claim against third-party defendant (TPD) if in T/O and vice versa!
- Note: EVERY CLAIM ASSERTED IN FEDERAL COURT MUST HAVE A BASIS IN SMJ (IF NO SMJ, THEN SUPPLEMENTAL)
Interpleader
One holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency. TWO TYPES:
- Rule 22 - Stakeholder must be diverse from every claimant.
- Statutory - One claimant must be diverse from one other claimant.
Voluntary Dismissal
May be allowed on court order (and PL may have to pay Def’s costs). But sometimes, PL has a right to do so simply by filing a written notice of dismissal.
First time - without prejudice
Second time - If PL dismisses the second case by written notice, it is WITH prejudice
12(b)6
FAILURE TO STATE A CLAIM
The court ignores legal conclusions and looks at allegations of fact from face of complaint. Court asks: “If every fact were true, would plaintiff win judgment?”
*Court doesn’t look at evidence
Summary Judgment
Rule 56
*Look to the evidence
Moving party must show:
1. There’s no genuine dispute as to material fact AND
2. That she’s entitled to judgment as a matter of law
**Court can look to evidence - usually in light most favorable to nonmoving party
Note: Pleadings aren’t evidence, but if the Defendant fails to deny something, it could be used as a fact.
Rule 26(f) Conference
At least 21 days before scheduling conference (or scheduling order is due), parties discuss claims, defenses, and settlement.
- Must form discovery plan, including issues about how electronically stored information (ESI) will be produced, and present it to court in writing within 14 days.
