Discovery Disputes Flashcards
The classic __________ ________ arises when the requesting, party wants information to be produced and the responding party refuses to produce it based upon grounds such as relevance, privilege, work-product protection, or the undue burden or cost it will impose.
discovery dispute
After the disputing parties meet and confer and are unable to negotiate a resolution on their own, there are two ways they can seek intervention by the court:
1.
2.
1)The requesting party files a motion to compel discovery under Rule 37.
2)The responding party files a motion for a protective order under Rule 26(c)
___________ _________ is a _________.
protective order
shield
______ ____ ________ is a ________.
motion to compel
sword
Prevent information
protective order is a shied.
Force somebody to give you information
motion to compel is a word
It doesn’t matter who files the motion, the burden is on the ______ _________.
party responding
If I file a protective order (shield), I have the burden. If you file a motion to compel (sword), I have the burden if I am responding. true or false.
true
A party must first “_______ ______ ______” with the opposing party and make a good faith effort to resolve their dispute without first seeking the court’s intervention.
meet and confer
Meet and confer can be accomplished in more than one way. Recommend:
call people
If the meet-and-confer is unsuccessful, then the party can file a motion seeking a _______ ___________ under 26(C). The court must find good cause for the __________ _________.
protective order
protective order
___________ ___________ may protect responding parties against abusive discovery requests, such as those seeking a large amount of unnecessary information that it would cost a great expense to produce.
protective orders
Rule 37 sets forth the procedures to ________ _________ and consequences for failure to __________.
compel discovery
cooperate
____________ _______ __________ are particularly appropriate where the requesting party believes the responding party:
o Is not legitimately claiming protection for the withheld material (i.e., asserting privilege when it doesn’t apply), or
o Has delayed in complying with the production request and appears to be stonewalling rather than making a good-faith effort to produce the requested material.
motions to compel
An_____________ is somebody who has specialized knowledge through training, experience, or education.
expert
The person who is going to come and sit on the witness stand and talk about whatever you have questions about.
Testifying Expert
FRCP 26(b)(4)
We get to find out about this expert.
Testifying Expert
FRCP 26(b)(4)
Can take this expert’s deposition!
Testifying Expert
FRCP 26(b)(4)
When you are into things that you do not know anything about.
Consulting Expert
We do not get to find out about.
Consulting Expert
Cannot take this expert’s deposition!
Consulting Expert
If Rule 26(a)(2)(B) requires a report from the expert, the __________ may be conducted only after the report is provided.
deposition
Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
True or False
True
What if you don’t know who your experts are going to be?
For every discovery device you have an ongoing duty to supplement. If you decide to hire someone you have to supplement your disclosure and say I am hiring him as an expert.
If I have a testifying expert and I am communicating with them whether it is oral, whether it is email, whether it is a letter, whatever it is, it is protected but there are exceptions.
The exceptions include:
1.
2.
3.
- Money
- Facts or Data
- Assumptions
Everything else is protected. These are not protected:
Money – the other side gets to know what you are paying your testifying expert, because if they choose to depose, they _____ ____ ____ _____ _______.
they have to pay their fee
Everything else is protected. These are not protected: ___________ they are treating as facts. ________ the property is 10 years old.
assumptions
assume
Motions to compel are particularly appropriate where the requesting party believes the responding party:
- Is not legitimately claiming protection for the withheld material (i.e., _______ ________ when it doesn’t ________.), or
- Has _______ in _______ with the _______ _________ and appears to be stonewalling rather than making a ____ _______ effort to produce the requested material.
asserting privilege
apply
delayed in communicating
production request
good faith
