Discovery/initial disclosures Flashcards
Criticisms of discovery system
-expensive (ex, doc discovery, lawyer time)
-time consuming
-can get hostile, ugly
(Battle of wits, avoidance) (unreas might deny cooperation)
Purpose of discovery in US?
-get info about claims,let people build case
-preserving evidence
-allows to evaluate case, may lead to narrower claim
-equity, access to info to parties who may not have had it (if didn’t have big lawyer)
INFORMED EVALUATON OF THEIR CASE
-quicker & fairer settlements, if settle less expense of trial
Twiqbol
More rigorous the plausibility standard for pleading a claim in federal court. Allows def. To avoidthe expense of discovery
Alternatives
Get judge more involved <-judge hours would be enormous
Percantage of lawyer time in discovery
90%
Buffalo creek
Pittston used as a tool to keep them busy
Medical exams, psych exams, travel time, Pltf had to respond to,
Interrogatories, had # days to respond
Pittston tried to keep depos of its employees secret, was a huge weapon once public….what u hiding.
6 tools in discovery arsenal
Depositions, interrogatories, requests for production, medical examinations, & requests for admission
Initial disclosures Rule 26(a)(?)(?)
(A)(1)(a)
Requires parties to provide info to each other-(i)names, addresses, # of those likely to have discoverable info ALONG WITH subjects of that info
(ii)- copy of all docs, etc that party may use to support claim or defense
(iii) computation of damages
(iv) identify any insurance agreement
Why do we have initial disclosures?
Gets out of way earlier
No good reason to hide type of info
Save $
Save time
“Used to support” in rule 26(A)(1)(a)(ii)
What really mean.
Meant to make party only produce FAVORABLE evidence, no need to produce unfavorable evidence party does not intend to use
Why you should be so conscious of discovery when you are drafting claims?
The way you frame pleadings, defenses, etc will define the scope of discovery.
Ex) put battery claim in u negl claim because can get more in dicovery- intent, prior relationship, what was said that is usu. irrelevant to a neg claim
26(b)(2)(a)
Discovery scope
Allows court to broader discovery. Need good cause for Any matter RELEVANT to CLAIMS & Def. To go beyond needs a court order
Initial disclosure is done & somewhere through trial Paulina finds another witness to green light. Does she have to do anything else as far as initial disclosures?
Supplemental disclosures- rule 26(e)(1)
Must supplement disclosures & response in a timely manner when party learns response was incorrect or incomplete in a material way.
How are supplemental disclosures different from rule 11.
Here have to go back & amend, if u dont, prevented from using that witness. Failure to disclose or supplement results in nit being able to use it.t
Rule 11 (reminder)
Signing pleadings, motions & other papers: by signing certifying not presented for any improper manner, claims are warranted, factually supported and denials are warranted by evidence.
What comes after initial disclosures?
Scheduling conference order:
gives dates for different stages of discovery.
Rule 16
(Judge ask how want to handle e-discovery, sets deadlines, addresses scope, custodians, types of media relevant)
Rule 26
Broad outline of discovery rights
Definition
“Any nonprivileged matter that is relevant to any party’s claim or defense - including the existence, description, nature, custody, condition & location of any documents or other tangibles.”
Rule 26(f)
REQUIRES parties talk about electronically stored info (12-2006)
Relevance language of rule 26
United oil v. Parts associates
“Parties may obtain dicovery of any matter, not privileged, that Is relevant to the claim or defense of any party”
FRCP RULE 26(b)(1)
Relevance STANDARD-where does it come from?
United oil v. Parts Assoc
Parties have to make a “rudimentary showing of relevance by articulating a COGENT NEXUS between a claim or defense and the piece of information sought-a request that is RELEVANT ON ITS FACE.”
Comes for the Federal Rules of EVIDENCE
Is relevance standard of discovery stage the same as at trial.
No. It’s higher at trial.
How court applied relevance standard in united oil?
Pltf was suing for indemnity & contribution saying parts assoc KNeW their product was dangerous(liver cancer) & didn’t warn.
Pltf, since party requesting has burden to show relevance, then burden shifts to def to say not relevant.
Court decides based on cogent nexus , so have to turn over docs where same chemical and damage to liver (not where heart damage) (can’t just turn over cuz makes them look like bastards! )
Can always find out if relevant at trial
& figure out later
