Discovery - Required Disclosures

Question 1

Required Disclosures

Answer 1

These materials must be produced even though no one asks for it.

1. Initial Disclosures
2. Expert Witnesses
3. Pretrial required disclosure

Question 2

Timing for Initial Disclosures

Answer 2

Unless a court order or stipulation of parties says otherwise, within 14 days of the Rule 26(f) conference

Question 3

what must each party disclose in initial disclosures?

Answer 3

1. Identities of persons who have discoverable info that you (the disclosing party) may use to support your claims or defenses.
2. Documents and things that you may use to support your claims or defenses.
   
   • You may produce copies or a description of these things.
3. Computation of monetary relief and documents/ESI supporting it.
4. Insurance coverage. D must disclose any insurance that might cover all or part of the judgment in the case.

Question 4

For identity of persons for initial disclosures - what do you disclose?

Answer 4

1. Name
2. Telephone Number
3. subject on which they have info

Question 5

What happens if a party fails to identify someone she was required to identify?

Answer 5

The party cannot use that witness in the case (unless the failure to identify was substantially justified or harmless).

Question 6

Does the info to be disclosed under initial disclosures include photographs, recordings, and electronically stored info (ESI)?

Answer 6

Yes

Question 7

Does the info to be disclosed under initial disclosure include tangible things?

Answer 7

Yes

Question 8

What happens if a party fails to disclose something on ititial disclosure she was required to disclose?

Answer 8

You cannot use that material in the case (unless the failure to identify was substantially justified or harmless).

Question 9

What if you know about such documents, ESI, or things, but they are not in your custody or control. Do you have to disclose for initial disclosures them?

Answer 9

No - this is only about things in your control

Question 10

Computation of monetary relief and documents/ESI supporting it for initial disclosures

Answer 10

Anyone claiming monetary relief must provide a “computation,” supported by documents or ESI of the amount sought.

Question 11

Required Disclosure of Expert witnesses (EW)

Answer 11

Later in the case, at a time directed by the court, each party must identify expert witnesses “who may be used at trial.”

Question 12

Suppose a party hired an expert to help it prepare the case, but does not intend to call that expert to testify at trial. Is this an expert witness?

Answer 12

No this is a consulting expert

Question 13

Do we need to disclose things from consulting experts?

Answer 13

Facts known and opinions held by consulting experts are generally not discoverable – only in “exceptional circumstances.”

Question 14

As to an expert witness (EW) “who may be used at trial,” what must each party generally disclose to the other parties?

Answer 14

The identity and a written report prepared by the EW

The written report must include:

1. opinions EW will express,
2. bases for the opinions,
3. facts used to form the opinions,
4. EW’s qualifications, and
5. how much EW is being paid.

Question 15

How to get a deposition of an expert witness

Answer 15

• That party should subpoena EW to compel her attendance.
• That party must pay the EW a reasonable fee per hour.

Question 16

Expert Witness & Attorney Work Product

Answer 16

Earlier drafts of the EW report are work product. So are communications between the lawyer and the EW.

Question 17

What is an Expert Witness?

Answer 17

An EW is someone who, because of special skill or training, may give opinion testimony. And she is hired to render an opinion in this case. There may be other
people with expertise who testify but who are not EW under this rule.

Question 18

What happens if a party fails to identify an EW and to provide the required information?

Answer 18

You cannot use the EW in your case unless failure was justified or harmless.

Question 19

Pretrial Required Disclosure

Answer 19

No later than 30 days before trial, must give detailed
information about trial evidence, including identity of witnesses to testify live or by deposition and documents/ESI/things to be introduced at trial.