Discovery and Trial Procedures

Question 1

what is required for Rule 26(b)(3) - Pretrial Disclosure?

Answer 1

information “then reasonably available”

	1. Initial disclosures (w/in 14 of 26(f) conference): Names and contact info of individuals likely to have discoverable information, evidence for claims or defenses, computation of damages, insurance agreements
	2. Expert testimony (90 before trial): Identity of (testifying) experts expected at trial, qualifications, opinions + their basis
	3. Pretrial disclosures (30 before trial): Info about evidence to be used (docs, trial and deposition witnesses)
	○ [CA] No automatic disclosure requirements

Question 2

Disclosure of Experts

Answer 2

only experts expected to testify must be identified (mandatory initial disclosure, 90 days before trial)

consulting experts need not be identified even if requests through interrogatory

Question 3

What materials by attorney are subject to absolute privilege? qualified privilege?

Answer 3

subjective thoughts - legal theories, conclusion, and mental impressions prepared in anticipation of litigation are ABSOLUTELY PRIVILEGED

Work product is generally privilege but may be compelled by court order if opposing pt shows substantial need + not available through other means

Question 4

Can representative of a class action make a jury demand? why?

Answer 4

Yes - 7th gives right to jury trial to suits at CL. whether or not CL turns on whether the claim for relief was available at law or in equity in 1791. Does not matter whether or not brought through class action.

Question 5

what is the scope of disvery? what are the factors the court may consider in assessing scope of discovery?

Answer 5

any non-privileged relevant evidence or facts that may lead to the relevant informaiton to a claim or defense and proportional to the needs of the case/balanced against the privacy interest considering

§ importance of issues,
§ AIC,
§ parties’ access to relevant information,
§ parties’ resources,
§ importance of discovery in resolving issues,
burden/expense vs. likely benefit).

Question 6

is privileged information discoverable?

Answer 6

no

Question 7

what must be disclosed withtout request? when?

how about in cali?

Answer 7

1. Initial disclosures (w/in 14 of 26(f) conference): Names and contact info of individuals likely to have discoverable information, evidence for claims or defenses, computation of damages, insurance agreements
   2. Expert testimony (90 before trial): Identity of (testifying) experts expected at trial, qualifications, opinions + their basis
   3. Pretrial disclosures (30 before trial): Info about evidence to be used (docs, trial and deposition witnesses)
   [CA] No automatic disclosure requirements

Question 8

what are the methods of service? in CA?

Answer 8

• Methods (A WASP)
○ Agent
○ Personal: summons & complaint by personal service on Δ or authorized agent,
○ Abode: At Δ’s usual place of abode with person of suitable age and discretion, or to Δ’s agent
§ [CA] requires follow-up mailing
○ State Methods: state law’s method (both forum state and state where service is made)
§ [CA] service by publication
§ [CA] allows service by first class mail/return receipt for out-of-state but in-US D if PJ exists
in foreign countries, as forum ct prescribes, as foreign law allows and that would give notice, or as directed by foreign auth ), OR

Question 9

when can a pt depose?

Answer 9

after initial manfatory disclosures

Question 10

assuming a state has a statute for physician patient privilege, when would that privilege be waived (and thus discoverable)

Answer 10

when the physical condition is put at issue

Question 11

when must the pretrial conference take place?

Answer 11

parties must “meet and confer” asap and at least 21 days before scheduling a conference to plan discovery and initial disclosures

Question 12

when can discovery generally begin?

Answer 12

after the meet and confer pretrial conference

Question 13

can a party serve an interrogatory before the pretrial conference? how many interrogatories can a party serv? and on who

Answer 13

only with leave of court
25
only on parties

Question 14

how must objections to interrogatories be made?

Answer 14

with specificity

Question 15

if a party fails to respond to a request for admission, is that an admission? can they be used against the party in future litigation?

Answer 15

yes if no response within 30d

no

Question 16

when must a party respond to a request for production?

Answer 16

30 d

Question 17

what is a subpoena duces tecum?

Answer 17

documents from parties and non parties

Question 18

what are the limits on depositions

Answer 18

of anyone, up to 10 per side 7hrs per person once

after pretrial conference unless with leave of court

Question 19

can a consulting expert be deposed?

Answer 19

no unless showing of exceptional circumstances under which it would be impracticalbe for the other party to obtain facts by other means

Question 20

when can a physical or mental exam be ordered? what are the requirements

Answer 20

only when the pt condition is in controversy and this waives privilege

good cause
person to be exam and all parties must be given prior notice with time, place. conditions, scope and ident of dr

Question 21

when is evidence barred?

Answer 21

when party fails to disclose

Question 22

what is motion to compel? in cali?

Answer 22

party can move to compel disclosure or discovery against a party failing to make auto disclosures or respond to discovery requests; must be served on all parites with cert of gf conferral or attempt

____

party must make reasonable and good faith effort to informally resovle issues before filing motion to compel

Question 23

when can ct impose sanction? what is the std of review for sanction imposed?

Answer 23

when pt fails to obey court order regarding discovery under abuse of discretion standard

Question 24

what is an offer of judgment and when must it be made?

Answer 24

14 before trial, Δ may offer a judgment against it on specified terms (settle). If Π rejects offer and gets less favorable judgment, Π must pay costs (incl. any atty fees under statute) incurred after offer was made

Question 25

what are the forms of adjudication without trial?

Answer 25

summary judgment
default judgment
dismissal
declaratory judgment

Question 26

what is summary jdugment and when must it be made? what is the timeframe in cali?

Answer 26

shall be granted if, from the pleadings, affidavits, and discovery materials on file (not merely allegations or denials) viewed in light most favorable to nonmoving party (NMP), the moving party shows that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law
CAN be made any time until 30 days after close of discovery
–
CA 60 days after general appearance of NMP or before that based on good cause at least 75d before hearing

Question 27

what is default judgment and when can the judgment be entered

Answer 27

Π may seek if Δ fails to defend (no response to complaint). If Δ took some action, no default.
○ if sum certain or computable + defaulting party failed to appear, court clerk can enter upon π request

Question 28

when i a case dismissed?

Answer 28

○ Involuntary dismissal: Against Π, by Δ or ct motion, for failing to pursue or comply w/ FRCP or ct order; generally with prejudice unless jurisdiction, venue, or failure to join a necessary party
§ [CA] “diligent prosecution” statutes, dismissal after five years have elapsed since filing of the complaint or three years if complaint has not been served, and may dismiss if two years have elapsed since filing of complaint

	○ Voluntary dismissal: Π may give up the case by filing a notice before Δ’s answer or motion for summary judgment, or by leave of ct; without prejudice
		§ if 2X vol dismissal becomes with prejudice
		§ [CA] after commencement of trial, P can only dismiss with prejudice (absent agreement or good cause)

Question 29

what is a declaratory judgment?

Answer 29

court tells the parties their rights and responsibilities without awarding damages or ordering parties to do (or refrain from doing) anything

Question 30

when must jury demand be made?

Answer 30

within 14 days of last pleading

CA: within 5 d of case notice

Question 31

can the jury be composed of fewer than 6 jurors?

Answer 31

only if all parties agree

Question 32

what are forbidden reasons to remove potential juror in cali?

Answer 32

race, color, religion, sex, national origin, ethnic group identification, sexual orientation, age, genetic information, or disability

Question 33

what are the possible post trial motion?

Answer 33

judgment as matter of law
renewed motion for JMOL
motion for new trial
remittitur
motion to alter or amend a final judgment
motion for relief from judgment

Question 34

what is a JMOL? when?

Answer 34

BEFORE it goes to jury

may be granted to moving party if nonmoving party (NMP) has been fully heard on an issue, and a reasonable jury would not find for NMP on that issue, evidence viewed in light most favorable to NMP

Question 35

when is a JNOV/renewed motion for JMOL? what can be raised? when?

Answer 35

28 days of judgment (15 in ca)

after jury renders verdict 2nd chance at JMOL (to overturn jury decision) raising only those issues raised in original JMOL; judge evaluate the legal sufficiency of the evidence

Question 36

on what grounds can a motion for new trial be made? when must it be made?

Answer 36

28 days of judgment (15 in ca)

○ Reasons include:
§ Prejudicial error during trial;
§ jury misconduct;
§ newly discovered evidence unable to be discovered earlier by reasonable diligence;
§ unfair (prejudicial, not harmless error) accident or surprise during trial;
§ insufficient evidence to justify verdict (against clear weight of evidence)
§ verdict against law;
§ error in law;
excessive/inadequate damages

Question 37

can a judge on his own order a new trial?

Answer 37

yes

Question 38

what post trial motion is unique to cali?

Answer 38

additur

Question 39

what is a motion to alter or amend a final judgment?

Answer 39

based on new evidence, change in law, clear error of law or fact, or to prevent injustice must be brought w/in 28 of order. Otherwise, seek relief from judgment or appeal…

Question 40

what is relief from judgment? when?

Answer 40

up to 1 year
1. mistake,
2. fraud,
3. void judgment
4. judgment satisfied, released, discharged
5. misconduct
6. new evidence that could not have been discovered in time to move for new trial
○ if some evidence could have been found with reasonable diligence, unlikely to succeed