Discovery I

Question 1

What is the scope of discovery?

Answer 1

The court has broad discretion in overseeing discovery. The standards governing discovery are liberal, and discovery is proper on: any non-privileged relevant matter.

Matters sought to be discovered need not be admissible so long as they are calculated to lead to admissible evidence

Question 2

Rule 16(b) Conference and Order: Initial Disclosures

Answer 2

Documents or Objects: Each party must provide to all other parties copies of (or descriptions of) documents, electronically stored information (ESI), and tangible objects that a party may use to support a claim or defense.

PLEASE NOTE: This is an updated rule on ESI.

Question 3

Work Product

Answer 3

Work product consists of documents or other tangible things prepared in anticipation of litigation by an attorney or at the attorney’s direction.

Work product can be divided into two categories: factual and opinion work product

Question 4

Factual work product

Answer 4

Facts pertaining to the case

Even where factual work product is discoverable, mental impressions will generally still be protected.

Factual work product may only be discovered upon a showing of: (1) substantial need, and (2) cannot obtain it otherwise except through undue hardship

Question 5

Opinion work product

Answer 5

the attorney’s mental impressions of the case

not discoverable

Question 6

Notice of deposition for parties

Answer 6

only reasonable notice is required

Question 7

Notice of deposition for non-parties

Answer 7

To depose a non-party, use a subpoena.

Question 8

Subpoena duces tecum

Answer 8

This compels the deponent to bring to the deposition specific papers. The deponent is allowed 30 days to assemble the documents

Question 9

How are depositions initiated?

Answer 9

any party may depose any person by giving notice to all other parties

If the deposition is to be videotaped the notice must inform the person of that

Reasonable notice of a deposition must be given to all parties.

Question 10

Procedure During and After Oral Deposition

Answer 10

Depositions are recorded in writing by a stenographer (transcript). While a transcript will not be provided to the parties automatically, any party may order a transcript at his own expense.

A witness may review the transcript and modify both the form and substance of their testimony

Question 11

Objections at a deposition

Answer 11

Evidence at a deposition is taken subject to objections, but the objections are not generally waived if they are not raised during deposition.