Discovery Rules

Question 1

Limits on Discovery

Answer 1

Relevance – Rule 26(b)(1)
Proportionality – Rule 26(b)(1)
Limitations of Rule 26(b)(2)(B & C)
Privileges – Rule 26(b)(1)
Work Product – Rule 26(b)(3) & Hickman
Protective Orders – Rule 26(c)
Experts:
Non-testifying experts – Rule 26(b)(4)(D)
Experts’ draft reports – Rule 26(b)(4)(B)

Question 2

Rule 21(a)(1)(A)

Answer 2

requires parties to disclose:
-name (plus address and phone number if known) of each individual the party may use to supports its claims or defenses (i.e., witnesses) – “unless the use would be solely for impeachment”
-Copy or description of all documents, electronically stored information, and tangible things the party may use to support its claims or defenses – “unless the use would be solely for impeachment”
-Calculation of damages claimed
-Copies of insurance policies

Question 3

Rule 26(e)

Answer 3

duty to supplement or correct

Question 4

Rule 34 (Document Requests)

Answer 4

-Only serve on a party
-Broadly defined: documents, tangible items, electronically stored information
-See Rule 34(a)(1)(A)
-Non-party may be compelled to produce documents as provided in Rule 45

Question 5

Rule 33 (Interrogatories)

Answer 5

-Only to parties – under oath & signed
-Unless stipulation from opponent or permission of the court, limited to 25 interrogatories including discrete subparts
-Must state objections with specificity

Question 6

Rule 36 (Admissions)

Answer 6

• Admit only if you do not intend to contest the assertion at trial
• Admissions binding only in this lawsuit
• Admitted if fail to object/answer

Question 7

Rule 30 (Oral Depositions)

Answer 7

-can depose parties and non-parties
-Limited to 10 depositions of 7 hours, without leave of court or stipulation
-Notice may include Rule 34 request
-Rule 30(b)(6) depositions

Question 8

Rule 35 (examinations)

Answer 8

-Mental or physical condition for which exam is sought must be “in controversy”
-Requires “good cause” – Rule 35(a)(2)(A)
-Only as to a party

Question 9

Rule 26(b)(1)

Answer 9

“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense ….”

(Discovery is tied to the factual and legal allegations stated in the pleadings and the substantive legal framework of those claims and defenses)

Question 10

Rule 26(b)(2)(C)

Answer 10

“On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(i)the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” [relevance & proportionality]

Question 11

Rule 26(c)(1) (Protective order)

Answer 11

“A party or any person from whom discovery is sought may move for a protective order …. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . .”
-Must certify conferred with affected parties first
-Subparts A-H list some potential protective orders

(party seeking order has burden of proof)

Question 12

Rule 26(b)(2)(B) (limitations)

Answer 12

“A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.”

Question 13

Rule 26(b)(3)(a)

Answer 13

-Ordinarily may not discover documents prepared in anticipation of litigation by other party or its representative. But may be discovered if show “substantial need for the materials” and “cannot, without undue hardship, obtain their substantial equivalent by other means.”
-Rule does not provide attorney a basis for refusing to answer deposition question, but Hickman would.

Question 14

Rule 26 (b)(3)(B)

Answer 14

court “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories” of attorney or other rep.

Question 15

Rule 26(b)(3)(C)

Answer 15

any party or other person may obtain their own previous statement

Question 16

Rule26(b)(4)

Answer 16

A. May depose any identified testifying expert.
B. Rule 26(b)(3) trial preparation protection for any draft report or disclosure under Rule 26(a)(2).
C. Rule 26(b)(3) trial prep. protection for communications between attorney and expert, unless relate to compensation or facts/data/assumptions given to and considered by/relied on by expert in forming opinion.
D. Cannot discover facts known or opinions held by non-testifying expert who has been retained in anticipation of litigation or to prepare for trial except:
(i) as provided in Rule 35(b); or
(ii) “on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.”

Question 17

Rule 26(g) (Ethical limitations)

Answer 17

-Signature certifies to best of knowledge, information and belief formed after a reasonable inquiry:
Disclosure is complete and correct when made; and
Discovery request, response, or objection is:
“consistent with these rules and warranted by existing law …;
not interposed for any improper purpose …; and
neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery …, the amount in controversy, and the importance of the issues at stake in the action.”

Question 18

Rule 26 (g)(2) (Ethical Limitations)

Answer 18

“Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed ….”

Question 19

Rule 26(g)(3)

Answer 19

“If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.”

Question 20

Rule 37(a) (Ensuring Compliance)

Answer 20

(a) - motions to compel
-confer in good faith prerequisite
-court must impose expenses/fees incurred in making motion unless substantially justified or circumstances make forward of expenses unjust

Question 21

Rule 37(b) (ensuring compliance)

Answer 21

fail to comply with order
-prior order prerequisite
-variety of severe sanctions possible in addition to expenses/fees

Question 22

Rule 37(c) (ensuring compliance)

Answer 22

fail to disclose/supplement/admit
- fail to disclose or supplement under rule 26(a, e), not allowed to use info unelss failure substantially justified or harmless. In addition or instead, court may impose variety of sanctions.
-fail to admit under Rule 36 and later proven genuine/true, may move for expenses and court must order unless A, B, C, or D apply

Question 23

Rule 37(d) (ensuring compliance)

Answer 23

fail to attend depo or respond to 33 or 34 requests
- confer in good faith prerequisite
- objection no excuse unless protective order filed
- variety of sanctions/ fees

Question 24

Rule 37(f) (ensuring compliance)

Answer 24

fail to join in 26(f) conference)
-fail to participate in good faith in developing and submitting a proposed discovery plan
-court may impose expenses/fees

Question 25

Rule 37(e) (ensuring compliance)

Answer 25

Rule 37(e) – Failure to Preserve Electronically Stored Info. “If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
1)upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
A. presume that the lost information was unfavorable to the party;
B. instruct the jury that it may or must presume the information was unfavorable to the party; or
C. dismiss the action or enter a default judgment.”