Discovery rules

Question 1

When a party decides to use an expert witness on trial, what should be in their disclosures for discovery?

Answer 1

1) Qualifications of the Expert Witness
2) Opinions of the expert witness
3) The bases of opinions
4) The facts used to form opinions
5) How much is the expert witness being paid

Question 2

What are the general initial disclosures that the party is supposed to make when it comes to discovery and what is the time limit?

Answer 2

Within 14 days of 26 (f) conference the parties are supposed to disclose?
1) The identity of people who have discoverable information and also the topic on which they have discoverable information (Names address etc)
2) The Documents that the party will use to support their claims and defenses
- These Documents must be in parties control
3) The computation of the relief and ESI
4) Insurance coverage

Question 3

What is the result of failure to disclose discoverable information?

Answer 3

The result is that the undisclosed information would not be allowed to be used in the case unless it was SUBSTANITALLY JUSTIFIED or harmless.

Question 4

Deposition of the EW? What is the procedure?

Answer 4

After the disclosures are made to the other party an EW may be deposed
1) The best practice is to subpoena the expert witness as there is a chance that the expert witness may not show up
2) The party compelling the disclosure would bear the cost of the expert witness which the court would set a per hour fee.

Question 5

How do we bring in a party for deposition?

Answer 5

1) A party just requires a notice to attend the deposition

Question 6

How do we bring in a non-party for deposition?

Answer 6

1) A non-party must be subpoenaed
2) If the noticing party fails to subpeona the non party and people come in then the non party would be liable for the costs

Question 7

How is a deposition conducted? and what is the manner?

Answer 7

A deposition is conducted when a person gives live testimony to the questions he is asked.
The questions can be by parties or pro-se parties
Also, both parties and non parties may be deposed.

A deponent is not required to review her records prior to deposition

Question 8

What ae the rules for required pre-trial disclosures? and how many days must you give to the parties for PRE-TRIAL Procedure?

Answer 8

30 days and the following disclosures
1) The identity of people who have discoverable information and also the topic on which they have discoverable information (Names address etc)
2) The Documents that the party will use to support their claims and defenses
- These Documents must be in parties control
3) The computation of the relief and ESI
4) Insurance coverage

Question 9

What is the procedure after the initial disclosures are made?

Answer 9

Parties may request information but the general rule is that A party cannot send discovery requests to other parties untill the 26 (F) conference is done.

The exception to note is “requests to produce” only they can be served earlier.

Question 10

What is the exception to the document being served earlier in 26 F conference?

Answer 10

request to produce can be served earlier than the 26 F conference
and it would be treated as it was served at the Rule 26(f) conference.

Question 11

What are the limits on depositions? Both on parties and Non parties

Answer 11

1) A non-party cannot be requested to travel beyond 100 miles for Deposition where the person resides or is employed.
2) Parties can only take upto 10 depositions
3) A party cannot depose the same person twice
4) Cannot exceed 7 hours a day

Court permission is required if the party intends to take depositions.

Question 12

Deposition of an organization, how is it done?

Answer 12

1) If a person wants to take deposition of an organization they must send a notice of deposition to the organization
2) and the organization will then will designate a person to testify that matter.

Question 13

What is the use of a deposition at a trial? and how can it be used

Answer 13

A deposition may be used at the trial to
- Impeach the deponent
- For any purpose if the deponent is an adverse party
- If the deponent is unavailable at rial, unless you are the one who procured that absence.

Question 14

What are interrogatories?
Who are interrogatories send to and what is the maximum number?

Answer 14

Interrogatories are ONLY send to PARTIES only and never a non party
The maximum number of interrogatories that you can send is 25 which also includes sub parts

Question 15

What is the time limit you must answer an interrogatory in and who is an allowing party?

Answer 15

30 days from their service and 33 days if mailed
and you must answer them based upon information reasonably available to you.

If the answer to these interrogatories can be found is business record, and burden of finding is the same then you can ask the allowing party to have access.

Question 16

What are contention interrogatories?

Answer 16

Contention interrogatories are the ones that inquire about legal contentions and they are okay. Defendant cannot say that interrogatories are only about facts

Question 17

What is Request to Produce and what can you do with it? and how do you respond to it?

Answer 17

A request to produce would ask a party to produce documents, for reviewing and copying
1) Electronically Stored Information
2) Or entry into the property so that we can measure things or inspect things.

The ESI Must be produced in a manner the requesting party specifies, but the other side may object if they want to

You must respond to an ESI within 30 days. (same timing as interrogatories)
In this time you must produce this material or assert objections as to why cant you get this material.

Request to Produce only goes to parties, but a non party can be sent a subpoena to disclose the same type of information

Question 18

What is a Medical Exam? and what must the requesting party in the medical exam show?

Who can be ordered to undergo a medical exam?

Answer 18

To get the court order, you must show:
(1) that the person’s health is in actual controversy and
(2) “good cause.”

A party or someone in the party’s custody or legal control. This is narrow (e.g., an employee is not in the custody or legal control of an employer).

Example: EXAMPLE
Parent sues on behalf of minor child for damages for personal injuries inflicted by D. D wants an order for a physical examination of minor child. Though the child is
not a party, she is in the custody/legal control of Parent, so the court may order the medical exam.

The party seeking the order chooses the licensed person to perform the exam.

Question 19

Suppose the court orders a medical exam of Joe. The
doctor examines Joe and writes her report and gives
it to the party who requested the exam. Joe would like
to see that report. Can Joe get a copy of it?

Answer 19

If Joe requests and obtains the report, he must (on
request) produce to the other party all medical reports
by his own doctors about that medical condition. He
also waives any doctor/patient privilege he may have
had with his doctor regarding that condition.

Question 20

What is a request to admission and who is it generally sent to, and what should you do when you receive one?

Can the responding party say she does not know the
answer?

Answer 20

Sent only to parties; never to nonparties.
This is a written request that someone admit things.

Responding party must respond in writing within 30 days of service, either denying specifically or objecting. If fails to deny admitted

EXAMPLE
P sends D a request for admission saying “admit or deny that you were drinking alcohol while driving your car.” If D fails to deny specifically (or to object to the request) in
writing within 30 days, what happens?

He would have deemed to admit that he was drinking.

Only if she states she made a reasonable inquiry and cannot find enough information from which to admit or deny. Often used to authenticate documents—“admit that
this is the contract.”

Question 21

Does Rule 11 (Attorney Fitness)apply to discovery documents?

Answer 21

NO

By another Rule, every discovery request and response is
signed by counsel certifying:

• it is warranted,
• it is not interposed for an improper purpose, and
• it is not unduly burdensome.

Question 22

After you respond to discovery, suppose circumstances in the real world change. In light of these new circumstances, your response to a required disclosure,
interrogatory, request for production, or request for
admission is now incomplete or incorrect.

Must you do anything?

Answer 22

yes, must supplement, this is a self policing obligation.

Question 23

What can you discover?

Is discoverable broader than admissible at trial?

Can a party discover something like hearsay, even though
it would not be admissible at trial?

In discovery, one party asks the other to produce
millions of e-mails and pages of material in a case
asserting a claim for $25,000. Is there a problem?

Answer 23

anything relevant to a claim or defense and proportional to the needs of the case.

Yes, discoverable is broader than admissible. Information need to be admissible to be discoverable.

Yes—just so it’s relevant to a claim or defense and proportional to the needs
of the case.

Yes, the request is disproportional (millions! of email)

Question 24

Can you object to discovery on the basis of evidentiary privilege?

Answer 24

You can object to discovery on the basis of evidentiary
privilege–e.g., confidential communications between
attorney and client.

Question 25

Witness, using his cellphone, records Driver hitting
P. Witness sells the recording to Driver. P sues
Driver and sends a request for all items showing
or describing the accident. Must Driver provide the
recording to P (even though it is obviously harmful
to Driver)

Answer 25

yes, because relevant.

Also side note : Remember, something harmful to you need not be
disclosed in required disclosures, but may well be
discoverable using the regular discovery tools.

Question 26

P seeks discovery from D of relevant e-mails. The
e-mails have been deleted from D’s server. They
can be recovered only at enormous cost (to restore
the e-mails). D asserts that the material is “not
reasonably accessible because of undue burden
or cost.” D can move for a protective order. (Or D
can object to discovery and P will move to compel
discovery.) Suppose the court finds the ESI is not
reasonably accessible because of undue burden or
cost. Now what does P try to do?

If P does show good cause for discovery, the court
can?

Answer 26

Protective order means hat you cannot force a party to give discovery. If granted

But in this case the plaintiff is able to show good cause of discovery then would be allowed.

If there is a good cause, can order production and allocate expense b/t the parties

Question 27

What is a work product?

and must a work product be generated by a lawyer?

Answer 27

Work product or “trial preparation materials” (material
prepared in anticipation of litigation).

No, any product in the anticipation of litigation is work product.

Question 28

Howell sues Skipper for injuries caused in a boat
wreck. Skipper (who was piloting the boat), fearing the
suit, hired Private Investigator (PI), who interviewed
Gilligan, who was a witness to the sinking. PI writes a
memo to Skipper, with the following:
(A) A statement by Gilligan regarding what
happened;
(B) PI’s conclusion that based on what Gilligan says,
there appears to be no defense; and
(C) PI’s opinion that Gilligan is stupid and would be
a lousy witness at trial.
Howell wants to discover this memo with a request
to produce. Skipper objects and claims that the
memo is protected work product. Is it?

b) Would it be work product if it were in electronic
format?

c) Though the memo is work product, Howell may be
able to discover some of it.
Item (A) (the witness statement by Gilligan) is
discoverable if Howell shows

Answer 28

a) yes, protected work product bc prepared in anticipation of litigation (generally applies to whole memo)

b) yes

c) 1. substantial need
2. not otherwise available

This is called “qualified work product.”
BUT there is also “absolute work product,” which
cannot be discovered. Here, items (B) and (C) are absolutely protected because they are (1) mental impressions, (2) opinions, (3) conclusions, and (4) legal theories. Usually referred to as “opinion work product