Discovery & Pretrial Adjudication

Question 1

General Entitlement to Discovery

Answer 1

A party is entitled to demand the discovery of any matter that is:

• relevant to the claim or defense of any party
• not unreasonably cumulative or burdensome; and
• not privileged

Question 2

Mandatory Disclosures: Initial Disclosures

Answer 2

Include (but are not limited to):

• Witnesses- the name/contact info of any W that a party may use to support a claim or D
• Documents- copies or descriptions of documents, ESI, and tangible objects that a party may use to support its claim or defense
• Damages- computation of damages sought and supporting documents
• Insurance agreements- copies of any insurance agreement that may require the insurer to pay.

Question 3

When Must the Initial Disclosures Be Made?

Answer 3

Within 14 days after the Rule 26 discovery conference. A party must make these disclosures based upon the information then reasonably available.

Question 4

Supplemental Disclosures

Answer 4

• A party must supplement a discovery response with any information that would have been subject to the mandatory disclosure requirement.
• Failure to comply may lead to the exclusion of that evidence at trial.

Question 5

Expert Disclosure

Answer 5

At least 90 days before trial, if a party is planning to rely on expert testimony, they must disclose the name/contact info of the expert and their final report, which must include the qualifications, opinion, and information relied on by the expert.

Question 6

Pretrial Disclosures

Answer 6

At least 30 days before trial, a party must provide to all parties:

• list of Ws expected to call at trial
• Ws that may be called if the need arises
• list of Ws whose testimony will be given through deposition or transcript; and
• list of documents or physical evidence they expect to present

Question 7

Scope of Discovery (RWPPE)

Answer 7

Important rules regarding the scope of discovery include:

• relevance
• work product
• privilege
• proportionality
• expert (non-testifying experts)

Question 8

Relevance

Answer 8

Parties are permitted to discover any non-privileged information that is relevant to the party’s claim or defense. Evidence is relevant if likely to make any fact in dispute more or less likely to be true, regardless of whether the info would be admissible at trial.

Question 9

Work Product

Answer 9

A document or tangible thing prepared by a party or attorney in anticipation of litigation. Work product can still be obtained if they party has a substantial need for the information and cannot get its equivalent without undue hardship.

Question 10

When Work Product Is Granted

Answer 10

If court order’s disclosure, it must make every effort to keep secret the author’s litigation strategy or mental process.

Question 11

Privileged Materials

Answer 11

Are not discoverable. Types of privilege can include: attorney-client, clergy-penitent, doctor-patient, psychotherapist-patient; and spousal.

Question 12

Proportionality: Important Factors

Answer 12

Discovery must be proportional to the needs to the case considering:

• The importance of the issues at stake in the action
• The amount in controversy
• The parties’ relative access to information
• The parties’ resources
• The importance of the discovery in resolving the issues
• Whether the burden or expense of the proposed discovery outweighs its likely benefit

Question 13

Non-Testifying Experts

Answer 13

Non-testifying expert information is generally undiscoverable unless the party has an extraordinary need for that information.

Question 14

Limits on Testifying Experts

Answer 14

Opinions held by those testifying are discoverable to a limited extent. Besides mandatory disclosure, a party can also get communications relating to:

• compensation for the expert’s study or testimony
• data provided by an attorney to the expert; or
• any assumption the attorney asked the expert to make in developing the expert opinion

Question 15

Discovery Devices

Answer 15

Include:

• Depositions
• Interrogatories
• Document Requests
• Requests for Admission
• Physical and Mental Examinations
• Subpoenas

Question 16

Depositions

Answer 16

The direct questioning of a party or witness under oath. Typically conducted orally and every word that is spoken is recorded verbatim and transcribed.

Question 17

How Many Depositions Can You Take as a Matter of Right?

Answer 17

10 (any more will require permission from the court).

Question 18

Depositions to Perpetuate Testimony

Answer 18

Are available only if all expected opposing parties are provided an opportunity to be present at the deposition and ask questions.

Question 19

Notice Req. for Depositions

Answer 19

• A deposition may not be used against a party who received less than 14 days notice if:
• The party files a motion for a protective order and the order is pending at time a deposition is taken.

Question 20

Uses of Deposition Testimony: Party or Party’s Designee

Answer 20

Evidence can be used for any purpose.

Question 21

Uses of Deposition Testimony: Non-Parties

Answer 21

The deposition of a non-party can be used:

• to impeach the deponent
• if the deponent is unavailable the deposition can be used for any purpose

Question 22

Instructions Not to Answer a Q During Deposition

Answer 22

A lawyer may instruct one not to answer a Q only when:

• to protect a privilege
• enforce a limit on discovery
• present a motion to terminate or limit the deposition.

Question 23

Interrogatories

Answer 23

Written questions that must be answered by another party in writing under oath. Interrogatories may only be served on parties to an action.

Question 24

How Many Interrogatories Can You Send

Answer 24

25.

Question 25

Responding to Interrogatories

Answer 25

parties have 30 days to respond. Responses must be in writing and objections must be stated with specificity.

Question 26

Document Requests

Answer 26

Any party may ask another party to produce documents or property for inspection and copying.

Question 27

Responses to Document Requests

Answer 27

Parties have 30 days to respond. parties may object to request as outside the scope of discovery.

• Documents –> Responding party must provide them as they are mantained in the usual course of business and label them
• ESI –> can provide in the form it is normally maintained or in a reasonably usable form

Question 28

Request for Admission

Answer 28

Question and answer statements that are used by either party to further explore specific contentions.

Any request that is admitted is deemed conclusive unless the court, on motion, permits the admission to be withdrawn or amended.

Question 29

Physical and Mental Examinations

Answer 29

When a party’s condition is in controversy, a physical or mental examination of the person may be requested (advance court approval is required). Court will only grant request upon a showing of good cause.

Question 30

Subpoenas

Answer 30

Can include subpoenas duces tecum (demand for documents) & subpoenas ad testificatum (demand for testimony).

Question 31

Motion to Compel

Answer 31

On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery, known as a motion to compel.

Question 32

Adjudication Without a Trial (Pre-Trial Methods of Resolving Disputes)

Answer 32

Include:

• Default judgments
• Settlements
• Pretrial motions
• Voluntary dismissals
• Involuntary dismissals

Question 33

Default Judgment

Answer 33

Entered against a party who has failed to plead or otherwise defend the claim and that failure is shown by affidavit or otherwise.

Question 34

Default Judgment: 2 Steps

Answer 34

If the P properly serves the D, but the D never responds, there are 2 steps:

Step 1 (Entry of Default)- the clerk must enter a default

Step 2 (Entry of a Default Judgment)- issued only after a default has been entered. How it is issued depends on the nature of the Ps claim.

Question 35

Voluntary Dismissal (3 Options for a P to Drop a Case)

Answer 35

• Unilateral dismissal by filing notice to any time before the D has filed an answer or motion for SJ
• Stipulation of dismissal signed by all parties
• Permission of the court (may be denied if there is a counterclaim and claim will not remain pending for independent adjudication)

Question 36

Voluntary Dismissal: Prejudice on Future Litigation

Answer 36

The Ps ability to re-litigate will depend on whether the claim was dismissed “with prejudice” or “without prejudice.”

Question 37

Voluntary Dismissal: Determining if Dismissal is With or Without Prejudice

Answer 37

• If the notice, stipulation, or court order specifies with or without prejudice, the plaintiff is bound by that.
• If the notice or stipulation is silent –> the first dismissal is presumed to be without prejudice; subsequent dismissals are presumed to be with prejudice.

Question 38

Involuntary Dismissals (Motion to Dismiss)

Answer 38

When pleadings fail to contain a “short and plain statement of the claim showing that pleader is entitled to relief” –> a party may move to dismiss for failure to state a claim for which relief can be granted.

Question 39

What Happens When a Motion to Dismiss is Granted?

Answer 39

The dismissal is with prejudice unless the court states otherwise in its order.