Discovery - Chapter 8 Flashcards
Discovery is effectively the
exchange of information
Rule 27-35 provides several tools the parties ______ use to obtain information through discovery.
MAY
Rule 34
Document Inspection
Rule 33
Interrogatories
Rule 30-31
Depositions by Oral Exam or Written Question
Rule 35
Physical or Mental Examination
Rule 36
Requests for Admission
Rule ____ MANDATES certain disclosures, Rule _____ states the scope, and Rule __________ further outline discovery procedure.
26(a)
26(b)
26(c)-(g)
Rule 26(a) _____________ certain disclosures.
MANDATES
Rule 26(b) states the
scope
Rule 26(c)-(g) further outline
discovery procedure
Rule 37
sets forth the procedures to compel discovery and consequences for failure to cooperate.
Rule 45
outlines discovery from nonparties
Parties - Initial Disclosure
Non- parties -
disclosure not required
Parties-Oral Depositions
Non-parties -
oral depositions
Parties- Interrogatories
Non-parties -
No interrogatories
Parties- Depositions on Written Questions
Non-parties -
Deposition on Written Questions
Parties- Request for Production
Non-parties -
No Requests for Production
Parties- Subpoenas
Non-parties -
Subpoenas
Parties-Physical and Mental Exams
Non-parties -
No physical or mental exams UNLESS subject to party’s legal custody or control
Parties- Request for Admission
Non-parties -
No requests for admission
Initial disclosures is the ___________ piece that only applies to parties.
mandatory
_____________ is another name for questions - you cannot give interrogatories to non-parties.
Interrogatories
Request something or documents is
request for production
The Scope of Discovery means
What can I get?
Rule 26(b)(1)
The Scope of Discovery
__________ example: Attorney-client. Something relevant to the case but is protected by privilege, you don’t get discovery on that. The rule says non-privileged. You do not get ____________ matter, you only get non-privileged matters. That is a _____________ on ________.
Privileged
privileged
restriction on scope
Parties may obtain discovery for any ________________ matter. Rule 26(b)(1).
non-privileged
You do not need to do 100,000 worth of discovery on a 10,000 case. This refers to what?
Relevant to any parties claim or defense and proportional to the needs of the case
Parties may obtain discovery regarding any:
1.
2.
3.
- non privileged matter
- that is relevant to any party’s claim or defense; and
- proportional to the needs of the case
Parties may obtain ____________ regarding any:
1. non privileged matter
2. that is relevant to any party’s claim or defense; and
3. proportional to the needs of the case
Discovery
Rule 26(b)(1) limits discovery to that which is “proportional to the needs of the case” and provides five illustrative factors for courts to consider.
1.
2.
3.
4.
5.
- Amount in Controversy
- The importance of the issue at stake in the action
- The parties resources
- The importance of the discovery in resolving the issues
- Whether the burden or expense of the proposed discovery outweighs its likely benefit.
Rule 26(b)(1) limits discovery to that which is “proportional to the needs of the case” and provides five illustrative factors for courts to consider.
1.
- Amount in Controversy
Rule 26(b)(1) limits discovery to that which is “proportional to the needs of the case” and provides five illustrative factors for courts to consider.
2.
- The importance of the issue at stake in the action
Rule 26(b)(1) limits discovery to that which is “proportional to the needs of the case” and provides five illustrative factors for courts to consider.
3.
- The parties resources
Rule 26(b)(1) limits discovery to that which is “proportional to the needs of the case” and provides five illustrative factors for courts to consider.
4.
- The importance of the discovery in resolving the issues.
Rule 26(b)(1) limits discovery to that which is “proportional to the needs of the case” and provides five illustrative factors for courts to consider.
5.
- Whether the burden or expense of the proposed discovery outweighs its likely benefit.
What information is Discoverable?
The basic scope of discovery is all information relevant to a _______ or ________ of any party.
Relevant material that is ________ is not discoverable.
Relevant material does not have to be _________ at trial.
claim or defense.
privileged.
Admissible.
Rule 26(b)(2) _______ the general scope of discovery set forth in Rule 26(b)(1)
limits
Remember that evidence need not meet the standard for admissibility at trial in order to be discoverable.
Last sentence of Rule ________: Information within this scope of discovery need not be admissible in evidence to be discoverable.
26(b)(1)
A _______________ ____________ is a shield, a legal document that shields you in some way or ways from responding to the discovery.
protective order
The sword is a motion to compel - you are not doing it and we want to force you to do it. The protective order says ______.
stop
A ___________ _____________ is a shield, a ________ ____ __________ is a sword.
Protective order
Motion to compel
_____ and _______ can be accomplished in more than one way. Recommended: Call people
Meet and Confer
Protective Orders:
A party must first “_____ and ________” with the opposing party and make a _____ _______ effort to resolve their dispute without first seeking the court’s intervention.
Meet and confer
Good faith
If the ______ and _______ is unsuccessful, then the party files a motion seeking a ___________ _________ under 26(c).
Meet and confer
Protective order
If the meet and confer is unsuccessful, then the party files a motion seeking a protective order under what rule?
26(c)
The court must find ________ _______ for the protective order.
Good cause
A protective order is a _________. Motion to compel is a ________.
Shield
Sword
What is Rule 45?
Discovery from Non-Parties
