DISCOVERY - MANDATORY DISCLOSURES Flashcards
Mandatory Disclosures
These materials must be produced even though no one asks for it.
- Initial Disclosures
- Expert Witnesses
- Pretrial mandatory disclosure
Timing for Mandatory Disclosures
Unless a court order or stipulation of parties says otherwise, within 14 days of the Rule 26(f) conference
what must each party disclose in initial disclosures?
- Identities of persons who have discoverable info that you (the disclosing party) may use to support your claims or defenses.
- Documents and things that you may use to support your claims or defenses.
- You may produce copies or a description of these things.
- Computation of monetary relief and documents/ESI supporting it.
- Insurance coverage. D must disclose any insurance that might cover all or part of the judgment in the case.
For identity of persons for initial disclosures - what do you disclose?
- Name
- Telephone Number
- subject on which they have info
What happens if a party fails to identify someone she was required to identify?
The party cannot use that witness in the case (unless the failure to identify was substantially justified or harmless).
Does the info to be disclosed under initial disclosures include photographs, recordings, and electronically stored info (ESI)?
Yes
Does the info to be disclosed under initial disclosure include tangible things?
Yes
What happens if a party fails to disclose something on ititial disclosure she was required to disclose?
You cannot use that material in the case (unless the failure to identify was substantially justified or harmless).
What if you know about such documents, ESI, or things, but they are not in your custody or control. Do you have to disclose for initial disclosures them?
No - this is only about things in your control
Computation of monetary relief and documents/ESI supporting it for initial disclosures
Anyone claiming monetary relief must provide a “computation,” supported by documents or ESI of the amount sought.
Required Disclosure of Expert witnesses (EW)
Later in the case, at a time directed by the court, each party must identify expert witnesses “who may be used at trial.”
Suppose a party hired an expert to help it prepare the case, but does not intend to call that expert to testify at trial. Is this an expert witness?
No this is a consulting expert
Do we need to disclose things from consulting experts?
Facts known and opinions held by consulting experts are generally not discoverable – only in “exceptional circumstances.”
As to an expert witness (EW) “who may be used at trial,” what must each party generally disclose to the other parties?
The identity and a written report prepared by the EW
The written report must include:
- opinions EW will express,
- bases for the opinions,
- facts used to form the opinions,
- EW’s qualifications, and
- how much EW is being paid.
How to get a deposition of an expert witness
- That party should subpoena EW to compel her attendance.
- That party must pay the EW a reasonable fee per hour.
