Discovery & Pretrial Flashcards

1
Q

common hypo

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

A

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

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2
Q

subpoena duces tecum

A

requires person to produce documents or things in lieu oof testifying

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3
Q

subpoenas

A

compels someone to testify

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4
Q

failure to respond to subpoena consequence

A

contempt of court

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5
Q

time to respond to subpoena duces tecum

A

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

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6
Q

discoverability rule

A

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

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7
Q

certification of attorney on discovery requests

A

check model answers

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8
Q

protective order available

A

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

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9
Q

types of discovery (DIRRRPP)

A
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
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10
Q

depositions objection rules

A

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

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11
Q

in deposition, party can refuse to answer only

A

(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

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12
Q

if deposition is being conducted with errors or irregularities

A

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

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13
Q

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

A

move to terminate

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14
Q

use of deposition at trial

A

(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

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15
Q

with depositions, once one part is admitted

A

all other parties may be admitted

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16
Q

deposition of an expert use

A

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

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17
Q

deposition of an attorney?

A

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

18
Q

methods of taking deposition

A

orally

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

19
Q

procedure to compel depositions for out of state people

A

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”

20
Q

interrogatories rules

A

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

21
Q

requests for production of documents and things

A

only against party

30 days to respond or object

22
Q

responses to requests for production - when information is electronically stored

A

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.

23
Q

responses to requests for production - in what form

A

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

24
Q

in tort cases, mental or physical exam rules

A

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

25
Q

mental or physical exam is compelled only if

A

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

26
Q

request for release of medical records

A

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

27
Q

requests for admission

A

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

28
Q

if party fails to comply with discovery

A

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

29
Q

work product doctrine

A

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

30
Q

inadvertent disclosure of materials

A

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

31
Q

testifying experts discovery of information

A

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

32
Q

nontestifying experts discoverability

A

not discovery except in exceptional circumstances

33
Q

testing expert’s qualifications

A

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

34
Q

duty to supplement discovery responses

A

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

35
Q

depositions of corporations or other entities

A

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

36
Q

pretrial conference potential issues

A

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

37
Q

motion for judgement on offer of judgement definition

A

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

38
Q

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

A

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

39
Q

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

A

third party petition

40
Q

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

A

mail citation and petition by certified mail

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