Discovery Procedures

Question 1

What is discovery, and what is “discoverable”?

Answer 1

Under the FRCP, discovery is permitted with regard to any non-privileged matter relevant to a party’s claim or defense.

Question 2

Does admissibility of evidence determine whether it is discoverable?

Answer 2

No, evidence that would be inadmissible in trial is still discoverable.

Further, evidence is discoverable if it appears reasonable calculated to lead to discovery of admissible evidence.

Question 3

What are the methods of discovery?

Answer 3

1) Depositions

2) Interrogatories

3) Requests for Productions

4) Requests for Admission

5) Physical/Mental Examinations

Question 4

What are Depositions are what are their limitations?

Answer 4

Written or oral examination of party or witness under oath.

1) 10 per party

2) Must serve the testifying witness with a subpoena!

Question 5

What are Interrogatories and what are their limitations?

Answer 5

Written questions served on party

1) Serve up to 25

2) Written responses due within 30 days of service

CA gets 35!

Question 6

What are Requests for Production and what are their limitations?

Answer 6

Request served on party (or subpoena served on nonparty) to produce & allow inspection of documents, electronic information, tangible items, or land

1) No limit

2) Written response due within 30 days of service or first discovery conference

Question 7

What are Requests for Admissions and what are their limitations?

Answer 7

Requests served on other party to admit truth of facts within scope of discovery

1) No limit

2) Written response due within 30 days of service

Question 8

What are Physical/Mental Examinations and what are their limitations?

Answer 8

Order by court or parties’ agreement for physical or mental examination of party if those conditions are in controversy

Must demonstrate:

1) Good cause

2) Notice

3) Specifying time, place, conditions, scope of exam, and identity of examiner

Question 9

What is an initial planning conference and how does it affect discovery procedures?

Answer 9

A. meeting where the parties arrange for initial disclosures and prepare a discovery plan in good faith.

Absent limited circumstances, a party may not seek discovery until the parties have held an initial planning conference.

A party’s options is to request a protective order.

Question 10

When should a discovery conference be scheduled?

Answer 10

Should be at least 21 days before a scheduling conference.

Question 11

In what circumstances may discovery be sought before the initial planning conference?

Answer 11

Discovery may be sought before an initial planning conference:

(1) In a proceeding exempt from initial disclosures or

(2) If permitted by a court order

3) Parties’ stipulation, or

4) A procedural rule.

Question 12

What is the Physician-Patient Privilege?

Answer 12

Protects communications between a physician and a patient if they were **made for the purpose of obtaining medical treatment.

Question 13

Where is the physician patient privilege recognized?

Answer 13

Not in FRCP

Recognized in California!

Most states have them via statute!

Question 14

How can the physician patient privilege be waived?

Answer 14

1) Patient’s physical condition is at issue

2) Case was brought in federal court and state law does not apply

[Ask if state substantive law is being used!]

Question 15

Discovery: Requests to Produce Documents

Answer 15

Nonparties may be compelled to produce documents and other things or submit to an inspection pursuant to a subpoena.

1) Within 30 days after being served

2) In writing

Give 30 days to respond!

Question 16

Discovery: Special/Written Interrogatories Limit

Answer 16

Any party may serve no more than 25 written interrogatories on any other party.

Court may increase the limit.

Further, information must be proportional to the needs of the case.

Question 17

Difference between written interrogatory and request to produce documents

Answer 17

Written Interrogatory: Allows party to request answers to questions about non-privileged matters relevant to a claim/defense and proportional to defense.

Request to Produce Documents: Allows part to request production and or inspection of documents in other party’s possession, custody, or control.

Question 18

When may a party object to an interrogatory?

Answer 18

Each interrogatory must be answered fully and separately under oath, unless there is an objection that is stated with specificity.

Responding party must serve it’s answers and objections within 30 days of being served with interrogatories.

Question 19

Discovery: What is a motion to compel?

Answer 19

If party fails to respond to discovery that has been properly served, then the party seeking the information may move to compel discovery.

Must be:

1) Served on all parties

2) Accompanied by certificate that movant is acting on good faith or attempted to confer with opposing party

Question 20

Discovery: Expert Witnesses

Answer 20

Parties must disclose he identities of persons who may testify as expert witnesses and produce an expert report for each such witness.

But if expert was only retained for trial, but not expected to testify, then discovery is only permitted by showing exceptional circumstances where it is impractical for party to obtain facts or opinions.

Must reveal names and reports within 90 days, absent 1) harmless error; 2) substantial justification

Question 21

What is the Work Product Privilege?

Answer 21

Generally, a party may not discover documents or tangible things that are prepared in anticipation of litigation or for trial by or for another person or rep.

Includes:

1) Mental impressions

2) Conclusions

3) Opinions

4) Legal theories

Includes expert witness reports hired by lawyer!

Question 22

What is the exception to the work product privilege?

Answer 22

Other party must show that there is exceptional circumstances or a substantial need for the materials.

Question 23

ESSAY TIP: Can interrogatories exceed scope of discovery?

Answer 23

Must be proportional to the need of the case! So if it’s too much information or too broad, then it’s permissible!

Question 24

How an a non-party be deposed?

Answer 24

A party may be deposed **at any time during discovery.

Non-party must be served with a subpoena personally.

Question 25

What is the test regarding a discovery challenge?

Answer 25

Could must balance the party’s interest in discovery vs the opposing party’s privacy interets.

Question 26

How broad is the scope of discovery?

Answer 26

The test is whether the information sought is relevant and proportional to the needs of the case.

Question 27

What is required during initial disclosures? in discovery?

Answer 27

1) Name, address, and telephone number of individual that likely has discoverable information that disclosing party will use to support their claim

2) Copy or description of all documents in disclosing party’s possession that party will use to support their claim.

3) Calculation of damages claimed by disclosing party

4) Insurance agreement which could satisfy some or all of the judgment.

Question 28

ESSAY TIP: When faced with a motion to compel, what are two questions you should ask?

Answer 28

1) Should the evidence have been initially disclosed?

2) Did the moving party confer or make a good faith attempt to confer with disclosing party prior to motion?

Question 29

ESSAY TIP: What is the consequences of a party failing to make a good faith attempt to meet and confer re: motion to compel?

Answer 29

The party will not be entitled to reasonable expenses.