Discovery & Pretrial

Question 1

common hypo

when party lives and works more than 25 miles from where they are being subpoenaed

Answer 1

entitled to statutorily provided expenses for hotels, meals, and travel for having to attend wherever they are being compelled to attend

Question 2

subpoena duces tecum

Answer 2

requires person to produce documents or things in lieu oof testifying

Question 3

subpoenas

Answer 3

compels someone to testify

Question 4

failure to respond to subpoena consequence

Answer 4

contempt of court

Question 5

time to respond to subpoena duces tecum

Answer 5

recipient can object in writing within 15 days of service or prior to time specified for compliance if less

Question 6

discoverability rule

Answer 6

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

Question 7

certification of attorney on discovery requests

Answer 7

check model answers

Question 8

protective order available

Answer 8

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

Question 9

types of discovery (DIRRRPP)

Answer 9

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

Question 10

depositions objection rules

Answer 10

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

Question 11

in deposition, party can refuse to answer only

Answer 11

(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

Question 12

if deposition is being conducted with errors or irregularities

Answer 12

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

Question 13

in a deposition, upon showing of bad faith to annoy, embarrass, or oppress the deponent or a party

Answer 13

move to terminate

Question 14

use of deposition at trial

Answer 14

(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

Question 15

with depositions, once one part is admitted

Answer 15

all other parties may be admitted

Question 16

deposition of an expert use

Answer 16

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

Question 17

deposition of an attorney?

Answer 17

no attorney of record may be deposed except under extraordinary circumstances
by order of court
after contradictory hearing

Question 18

methods of taking deposition

Answer 18

orally

by telephone or other remote means if parties agree OR court ordered

Question 19

procedure to compel depositions for out of state people

Answer 19

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”

Question 20

interrogatories rules

Answer 20

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

Question 21

requests for production of documents and things

Answer 21

only against party

30 days to respond or object

Question 22

responses to requests for production - when information is electronically stored

Answer 22

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.

Question 23

responses to requests for production - in what form

Answer 23

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

Question 24

in tort cases, mental or physical exam rules

Answer 24

defendant entitled to have own medical exam of plaintiff
to determine physical and mental injuries
need court order

Question 25

mental or physical exam is compelled only if

Answer 25

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

Question 26

request for release of medical records

Answer 26

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

Question 27

requests for admission

Answer 27

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

Question 28

if party fails to comply with discovery

Answer 28

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

Question 29

work product doctrine

Answer 29

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

Question 30

inadvertent disclosure of materials

Answer 30

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

Question 31

testifying experts discovery of information

Answer 31

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

Question 32

nontestifying experts discoverability

Answer 32

not discovery except in exceptional circumstances

Question 33

testing expert’s qualifications

Answer 33

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

Question 34

duty to supplement discovery responses

Answer 34

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

Question 35

depositions of corporations or other entities

Answer 35

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

Question 36

pretrial conference potential issues

Answer 36

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

Question 37

motion for judgement on offer of judgement definition

Answer 37

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

Question 38

hypo: is there a procedure whereby you can force the other side to consider a settlement before trial? what are requirements, time periods, etc

Answer 38

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

Question 39

if defendant thinks that another person is liable to him for damages, he files a

Answer 39

third party petition

Question 40

how to serve a corporation with no agent or office in Louisiana?

Answer 40

mail citation and petition by certified mail

OR court will appoint attorney to represent non-resident party and order service on that attorney