Discovery & Pretrial Flashcards
common hypo
when party lives and works more than 25 miles from where they are being subpoenaed
entitled to statutorily provided expenses for hotels, meals, and travel for having to attend wherever they are being compelled to attend
subpoena duces tecum
requires person to produce documents or things in lieu oof testifying
subpoenas
compels someone to testify
failure to respond to subpoena consequence
contempt of court
time to respond to subpoena duces tecum
recipient can object in writing within 15 days of service or prior to time specified for compliance if less
discoverability rule
any matter not privileged that is relevant to the subject matter
information sought need not be admissible at trial if reasonably calculated to lead to the discovery of admissible evidence
certification of attorney on discovery requests
check model answers
protective order available
to prevent annoyance, embarrassment, oppression or undue burden or expense
remedies =
(1) court can prohibit discovery
(2) limit terms of discovery - time, place, method, subject matter
(3) order that trade secret or confidential matter not be disclosed
types of discovery (DIRRRPP)
depositions interrogatories requests for production of documents or things or request for release of medical records requests for admissions permission to enter on land physical and mental examinations
depositions objection rules
all objections will be noted by the officer (court reporter) and evidence will be taken subject to the objections.
the objections must be stated concisely in a non-argumentative and non-suggestive manner
objections as to form are waived if not made
other objections such as relevancy not waived if not made
in deposition, party can refuse to answer only
(1) when necessary to preserve a privilege
(2) to enforce a limitation on evidence already imposed by court
(3) to prevent harassing or repetitious question
(4) questions that will not reveal information neither admissible at trial nor reasonably calculated to lead to admissible evidence
if deposition is being conducted with errors or irregularities
such as irregularities in manner in which testimony transcribed, or deposition prepared, certified, etc
then must file a motion to suppress promptly after defect is or should have been discovered
in a deposition, upon showing of bad faith to annoy, embarrass, or oppress the deponent or a party
move to terminate
use of deposition at trial
(1) to impeach the witness with prior deposition testimony
(2) of a party, or officer/director of party entity, may be used for any reason
(3) deposition of a witness, can be used in any way at trial if the witness should die or is otherwise unavailable, including if the witness resides more than 100 miles from the courthouse or is out of state, or in exceptional circumstances
with depositions, once one part is admitted
all other parties may be admitted
deposition of an expert use
after notice and giving opposing counsel 10 days to object, deposition of expert may be used for any purpose.
if other party objects, objector must pay reasonable expert fees
deposition of an attorney?
no attorney of record may be deposed except under extraordinary circumstances
by order of court
after contradictory hearing
methods of taking deposition
orally
by telephone or other remote means if parties agree OR court ordered
procedure to compel depositions for out of state people
reaosnable notice in writing to all parties
that states time and place of deposition
must apply to court (ie, chancery court of Ohio), that will issue “letters rogatory”
interrogatories rules
used only against parties
party has 30 days to answer or object
limit of 35
note: if answers to interrogatories can be obtained from business records, party can specify where in the records the answers may be found, and make the records available in lieu of answering
only if burden of locating the answer is substantially similar for both parties
requests for production of documents and things
only against party
30 days to respond or object
responses to requests for production - when information is electronically stored
if electronically stored information is not produced in compliance with the requests, the requesting party may move to compel
the court can order the requesting party to access the computers to retrieve the information.
responses to requests for production - in what form
RFP may specify the formin which information is to be produced
a party may object and state the form they intend to use
may organize produced documents to correspond with requests, or may produce them as they are kept in the usual course of business
in tort cases, mental or physical exam rules
defendant entitled to have own medical exam of plaintiff
to determine physical and mental injuries
need court order
mental or physical exam is compelled only if
party’s mental or physical condition is at issue
exam must be done by medical doctor, vocational rehab expert, or licensed clinical psychologist
must delivery copy of exam to other party if requested – but if it’s requested, then the requesting party must disclose all their reports, and patient-physician confidentiality is waived
request for release of medical records
respond within 30 days
requires party to sign a release directing a specific health care provider to release records of the party whose medical condition is at issue
requests for admission
requests may only be served on adverse party
if no answer made within 30 days, fact considered conclusively proved
party may: admit, object to the questions, state that he has no knowledge, deny, or state that the information is privileged
note: if party is forced to prove a fact that is denied at an RFA, then attorneys’ fees are granted unless:
(1) request was objectionable
(2) admission sought was of no substantial importance
(3) party failing to admit reasonably believed he would prevail or
(4) other good reason
if party fails to comply with discovery
then file motion to compel
and sanctions available
sanctions include =
(1) matter may be deemed proved
(2) evidence of the disobedient party may be excluded
(3) pleadings may be struck, the case may be dismissed, or a default judgement may be entered against the disobedient party
(4) costs and attorneys fees available
note: no sanctions for lost ESI from routine, good faith operation of electronic information systems
work product doctrine
writings or electronic information prepared by a party or his attorney prepared in anticipation of litigation or in preparation for trial are not discoverable
unless denial will cause unfair prejudice, undue hardship, or injustice
inadvertent disclosure of materials
is not a waiver if reasonably prompt notice of the inadvertence of the disclosure is given
upon receipt, recipient must return or safeguard the materials
but may assert a waiver of the privilege
testifying experts discovery of information
court may order that party is to provide a written report prepared and signed by expert that includes experts opinions reasons therefore and any data based on.
must include qualifications, publications, compensation, and other cases in which he has been expert. must be filled 90 days before trial.
drafts of expert’s reports including notes that reflect the mental impressions, etc are not discoverable
nontestifying experts discoverability
not discovery except in exceptional circumstances
testing expert’s qualifications
any party may file
at least 60 days before trial
a motion for pretrial hearing
to test expert qualifications
hearing and ruling must be issued 30 days before trial
ruling must state findings of fact, conclusions of law, and reasons for judgement
duty to supplement discovery responses
generally, no duty to supplement if they were complete when made
exceptions:
(1) questions regarding the identity and location of persons with knowledge of discoverable matters
(2) information that renders the previous response incorrect
(3) if court orders or agreement of party
depositions of corporations or other entities
when corporation, partnership, association, or governmental agency needs to be deposed, but you dont know who has relevant information
then that juridical person has duty to provide the deponent who are qualified to answer the questions posed
entity is deponent, who designates deposition to a person
pretrial conference potential issues
usually held after case has been set for trial
court looking to get housekeeping matters in order before trial
list of things
note: if an attorney fails to obey pretrial order, or if they fail to attend the pretrial conference prepared to participate in good faith, court may sanction the attorney
motion for judgement on offer of judgement definition
20 days or more before the trial,
a party may make a written offer to settle all claims,
without admitting liability
offer must state it’s being made pursuant to article 970
if offer accepted, either party can move for judgement on the offer within 10 days after service (“motion for judgement on offer of judgement”)
if not accepted, the rejecting offeror may have to pay the offeree’s costs at trial (not attny fees)
once signed by judge, it’s final. no appeal by accepting party
hypo: is there a procedure whereby you can force the other side to consider a settlement before trial? what are requirements, time periods, etc
motion for judgement on offer of judgement
20 days or more before the trial,
a party may make a written offer to settle all claims,
without admitting liability
offer must state it’s being made pursuant to article 970
if offer accepted, either party can move for judgement on the offer within 10 days after service
if defendant thinks that another person is liable to him for damages, he files a
third party petition
how to serve a corporation with no agent or office in Louisiana?
mail citation and petition by certified mail
OR court will appoint attorney to represent non-resident party and order service on that attorney
