Discovery Part 2

Question 1

Request to Produce

Answer 1

• asks a party to make available for review and copying docs or things, including electronically stored info (ESI) or to permit entry onto designated property to inspect, measure, etc.
• only parties can be sent request to produce, BUT nonparty can be served w/ subpoena to require disclosure of same types of info

Question 2

Request to Produce - ESI

Answer 2

• ESI must be produced in the form that the requesting party specifies
• BUT the respondent may object

Question 3

Request to Produce - Response

Answer 3

• disclosing party must respond to the request in writing w/in 30 days of service
  -> stating that the material will be produced or asserting objections

Question 4

Medical Exam

Answer 4

• physical or mental
• court order is required to compel a party (or person in the party’s custody or control) to submit a medical exam
  -> custody or control is narrow (ex: child, but not employee)

Question 5

Medical Exam - Requirements for Court Order

Answer 5

Requesting party must show:
- that the person’s health is in actual controversy AND
- good cause

• requesting party chooses the licensed med professional to perform the exam

Question 6

Medical Exam - Requesting a Copy of the Report

Answer 6

• once the ct orders a med exam + the med professional conducts the exam, the med professional will write a report + give it to the requesting party
• person undergoing the exam can get a copy of the report
  -> if requests + obtains one, must also produce (on request) all med reports by own doctors about that same med condition
  -> also waives any doctor-patient privilege she may have had w/ her doctor regarding that condition

Question 7

Request for Admission - Definition

Answer 7

• written request that someone admit certain matters
• often used to authenticate docs

Question 8

Request for Admission - Procedure

Answer 8

• responding party must respond in writing w/in 30 days of service, either denying specifically or objecting
• BUT if responding party states she made reasonable inquiry + can’t find enough info from which to admit or deny, can state she doesn’t know the answer
• if party fails to deny a proper request, the matter is deemed admitted

Question 9

Signature Requirement for Discovery

Answer 9

• parties sign substantive answers to discovery under oath
• Rule 11 does NOT apply, but there’s a different rule

Every discovery request + response is signed by counsel certifying that it is:
- warranted
- not interposed for an improper purpose AND
- not unduly burdensome

Question 10

Duty to Supplement

Answer 10

• if new facts come to light after responding to discovery that make a required disclosure, interrogatory, request for production, or request for admission incomplete or incorrect, the party must supplement her response to discovery
• self-policing obligation

Question 11

Standard for Scope of Discovery

Answer 11

• party can discover anything that is relevant to a claim or defense + proportional to the needs of the case
• unlike initial disclosures, something harmful to you may be discoverable using regular discovery tools
• DOESN’T need to be admissible as evidence -> discoverable is broader than admissible (ex: could discover inadmissible hearsay)

Question 12

Privilege

Answer 12

• party can object to discovery on the basis of evidentiary privilege
  -> ex: confidential communications between attorney + client

Question 13

Work Product Protection - Overview

Answer 13

• work product = material prepared in anticipation of litigation
• protected
• need not be generated by a lawyer (could be by party herself or any rep of the party)

Question 14

Qualified vs. Absolute Work Product

Answer 14

• WP can sometimes be discovered if requesting party can show substantial need + undue hardship in obtaining the materials in an alternative way (“qualified work product”)
• vs. other kinds absolutely protected -> CAN’T be discovered
  -> opinion work product falls within this category

Question 15

Opinion Work Product

Answer 15

• mental impressions, conclusions, opinions, or legal theories of the disclosing party
• CAN’T be discovered

Question 16

Work Product - Party’s Own Statement

Answer 16

• notwithstanding work product, a party has a right to demand discovery of any previous statement that she made regarding the case

Question 17

Asserting Privilege or Work Product

Answer 17

• if a party withholds discovery or seeks protective order based on privilege or work product, she must claim the protection expressly + describe the materials in detail
  -> does this in a “privilege log” (doc listing materials protected by date, author, recipient, + privilege or protection claimed)
  -> must include enough detail to allow judge to determine whether the material is protected

Question 18

Inadvertent Disclosure of Privileged or Protected Material

Answer 18

• if party inadvertently produces privileged or protected material, she should notify the other party promptly
• other party must return, sequester or destroy the material pending a decision by the court about whether there’s been a waiver

Question 19

Ways Courts Get Involved in Discovery Disputes

Answer 19

• party seeks protective order
• party responds, but not fully
• no response to discovery request

Question 20

Party Seeks Protective Order

Answer 20

• can move for protective order if thinks discovery request subjects party to annoyance, embarrassment, undue burden or expense
• party must certify that she tried in good faith to resolve the issue w/o court involvement (i.e. asked the other side to “meet and confer”)

Question 21

Party Seeks Protective Order - Actions the Court Can Take

Answer 21

If court agrees, it can:
- deny discovery
- limit discovery OR
- permit discovery on specified terms

Question 22

Party Responds, But Not Fully

Answer 22

• if party responds to request but fails to answer all q’s b/c objects to them (or some of them), she may be compelled to comply by court order

Question 23

No Response to Discovery Request

Answer 23

• if responding party fails completely to attend her depo, respond to interrogatories, or respond to production requests, she will be subject to various sanctions plus costs

Question 24

Sanctions Against a Party - Party Seeking Sanctions

Answer 24

• must certify she tried in good faith to get the info w/o court involvement (tried to “meet and confer”)

Question 25

Sanctions Against a Party - Less Than A Full Response

Answer 25

When producing party responds, but not fully, sanctions are a two-step process:
- requesting party moves for order compelling producing party to answer the unanswered q’s, produce the unproduced material, plus costs of bringing the motion
- if producing party violates the order compelling her to answer, court can enter “merits” sanctions, along w/ costs + attorneys’ fees for bringing the motion
-> producing party could be held in contempt for violating a court order

Question 26

Sanctions Against a Party - No Response

Answer 26

• court can enter merits sanctions plus costs (and attorneys’ fees for the motion)
• no need to get an order compelling answers (go directly to merits sanctions

Question 27

Merits Sanctions

Answer 27

Judge can choose among the following as sanctions:
- establishment order (establishes facts as true)
- strike pleadings of the disobedient party (as to issues re the discovery)
- disallow ev from the disobedient party (as to issues re the discovery)
- dismiss pl’s case (if bad faith shown)
- enter default judgment against def (if bad faith shown)

Question 28

Litigation Hold

Answer 28

• when litigation is reasonably anticipated, parties must preserve discoverable info

Question 29

Litigation Hold - ESI

Answer 29

• special rules
  -if ESI truly lost (can’t be recovered or restored) + b/c party in control failed to take reasonable steps to preserve it, court can order measures to cure the harm caused to the other party
  -> adverse inference order + merits sanctions allowed ONLY if party who lost the ESI acted w/ intent to deprive the other party of it