Discovery Part 2 Flashcards
Request to Produce
- 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
Request to Produce - ESI
- ESI must be produced in the form that the requesting party specifies
- BUT the respondent may object
Request to Produce - Response
- 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
Medical Exam
- 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)
Medical Exam - Requirements for Court Order
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
Medical Exam - Requesting a Copy of the Report
- 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
Request for Admission - Definition
- written request that someone admit certain matters
- often used to authenticate docs
Request for Admission - Procedure
- 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
Signature Requirement for Discovery
- 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
Duty to Supplement
- 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
Standard for Scope of Discovery
- 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)
Privilege
- party can object to discovery on the basis of evidentiary privilege
-> ex: confidential communications between attorney + client
Work Product Protection - Overview
- 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)
Qualified vs. Absolute Work Product
- 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
Opinion Work Product
- mental impressions, conclusions, opinions, or legal theories of the disclosing party
- CAN’T be discovered
Work Product - Party’s Own Statement
- notwithstanding work product, a party has a right to demand discovery of any previous statement that she made regarding the case
Asserting Privilege or Work Product
- 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
Inadvertent Disclosure of Privileged or Protected Material
- 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
Ways Courts Get Involved in Discovery Disputes
- party seeks protective order
- party responds, but not fully
- no response to discovery request
Party Seeks Protective Order
- 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”)
Party Seeks Protective Order - Actions the Court Can Take
If court agrees, it can:
- deny discovery
- limit discovery OR
- permit discovery on specified terms
Party Responds, But Not Fully
- 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
No Response to Discovery Request
- 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
Sanctions Against a Party - Party Seeking Sanctions
- must certify she tried in good faith to get the info w/o court involvement (tried to “meet and confer”)
Sanctions Against a Party - Less Than A Full Response
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
Sanctions Against a Party - No Response
- 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
Merits Sanctions
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)
Litigation Hold
- when litigation is reasonably anticipated, parties must preserve discoverable info
Litigation Hold - ESI
- 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
