Discovery & Discovery Tools Flashcards
Initial Disclosures
Initial disclosures are information that each party must give to other parties within 14 days of the Rule 26 conference. Each party must disclose certain information such as the identities of persons with discoverable information. copies or descriptions of documents that may be used to support claims or defenses, computation of damages sought, and copies of insurance agreements that may require a party to pay.
Expert Disclosures
At least 90 days before trial, if planning to rely on expert testimony, each party must disclose the name and contact information of the expert and their final report which must include qualifications, opinion, and information relied on by the expert.
Pretrial Disclosures
At least 30 days before trial, a party must provide a list of witnesses that the party expects to call; the witnesses that be called if the need arises; a list of witnesses whose testimony will be given through deposition or transcript; and a list of documents or physical evidence that the party expects to present at trial.
Depositions
A deposition may be used against any party who was present at the deposition or had notice of it: (i) to impeach the testimony of the deponent as a witness; (ii) for any purpose if the court finds that the deponent is dead, at a distance greater than 100 miles from the place of trial (unless the absence was procured by the party offering the deposition), or unable to testify because of age, sickness, etc.; or (iii) for any purpose if t deponent is an adverse party. A party cannot take more than 10 depositions or depose the same person twice without court approval or stipulation.
Deposition of Organizations
A party suing an organization may “notice” a deposition of an organization, describing the facts she wants to discover in the deposition. The organization must then designate a person(s) to testify on that matter.
Interrogatories
Interrogatories are written questions to be answered in writing under oath. Interrogatories can only be sent to parties and the maximum number, absent court stipulation, is 25 including subparts. Interrogatories are to be answered in writing within 30 days after service has been made. A party must answer interrogatories based upon information reasonably available.
Admission Requests
A request for admission is a written request that someone admit certain matters. The responding party has 30 days to respond either denying specifically or objecting. If the party fails to properly deny an admission request, it will be deemed admitted.
Production Requests
A request to produce asks a party to make available for review and copying documents or things, including electronically stored information (ESI), or to permit entry on designated property to measure, inspect, etc. A party has 30 days to respond to production requests or may object as outside of scope of discovery.
Medical Exams (Mental/Physical)
A court order is required to compel a party (or person in the party’s custody or control) to submit a medical examination. The requesting party must show that the person’s health is in actual controversy and good cause. [Requesting party chooses the licensed medical professional]
Requesting a Copy of Medical Report
The person undergoing a medical examination can get a copy of the report. If the person requests and obtains a copy of the report, she must (o request) produce all medical reports by her own doctors about the same medical condition. By requesting the report, the individual waives any doctor-patient privilege with regard to that medical condition.
Work Product
Work product is material prepared in anticipation of litigation. Work product is specifically exempted from discovery unless the discovering party can show substantial need and undue hardship in securing similar material from other sources. However, work product consisting of mental impressions, conclusions, opinions, or legal theories of the disclosing party cannot be discovered even after a showing of substantial need and undue hardship.
Attorney-Client Privilege
Attorney-client privilege covers confidential communication between attorney and client for the purpose of obtaining or rendering legal advice.
Testifying vs. Non-Testifying Experts
A non-testifying expert assess the merits of the case with no intention that the expert testify at trial. The identity of non-testifying experts cannot be discovered.
A testifying expert is one whose opinion is discoverable to an extent. Aside from mandatory reporting, a party can discover information related to compensation for the expert’s study or testimony; data provided by attorney to expert; or any assumption attorney asked expert to make an opinion for.
Subpoenas
A subpoena is required for discovery from non-parties. A subpoena duces cecum requires the deponent to bring requested materials with them to the deposition. A party may object to a subpoena if being required to travel more than 100 miles from where the nonparty resides or is employed.
Motion to Compel
If a party fails to comply with discovery, the requesting party may file a motion to compel. A motion to compel is made after movant has in good faith attempted to confer with resistor. If granted, a motion to compel entitles movant to fees/expenses. If denied, the non-movant may be entitled to fees but only if motion was not substantially justified.
