Discovery - Scope Flashcards
What is required pre-claim/pre-defense?
Informal fact-finding
What is the standard for discovery scope? What rule?
Relevant
Proportional
R.26
Considerations of proportionality
- Importance of issues at stake
- Amount in controversy
- Parties’ relative access
- Parties’ resources
- Importance of discovery in resolving issues
- Whether burden or expense of discovery outweighs benefits
What are the five major objections to discovery?
- Privilege matter
- Work product
- Unreasonably cumulative or duplicative
- Had ample opportunity to obtain information by discovery in action
- Outside of scope (not relevant or not proportional)
Elements of Attorney-Client Privilege
- A communication
- Made between privileged persons
- In confidence
- For the purpose of obtaining or providing legal assistance
What must to be done to prevent waiver of privilege?
Assert privilege
How do you assert privilege?
- Expressly make claim
2. Describe nature of documents
What is your option if you accidentally produce privileged information?
Assert demand that other party return, sequester, or destroy material
What is the origin of Work Product Doctrine?
Created by Hickman v. Taylor (1947 USSC case)
What does the Work Product Doctrine protect?
Information prepared in anticipation of litigation
What approach does the Work Product Doctrine use to determine preparation in anticipation of litigation?
Primary purpose approach
What does Work Product Doctrine not protect?
- Pure facts
- Identify of individuals
- Witness statements
What kind of privilege does work product have?
Not absolute privilege
What do you need to assert objection to work product privilege?
- Necessity
2. Undue hardship
Types of Work Product
- Ordinary work product (qualified work product)
2. Opinion work product (absolute work product)
Ordinary (qualified) work product
Consists of tangible material or its tangible equivalent in unwritten or oral form, other than underlying facts
When is ordinary (qualified) work product discoverable?
On basis of necessity and undue hardship
Opinion (absolute) work product
Includes legal theories, opinions, conclusions, etc.
When is opinion (absolute) work product discoverable?
Rarely, only on basis of extraordinary needs
When is expert work product permitted to be discovered?
Discovery of testifying expert
When is expert work product not permitted to be discovered?
Discovery of non-testifying expert
What is the exception for expert work product of a non-testifying expert (to be discoverable)?
Exceptional circumstances = must show impractical for discovering party to obtain facts and opinion
What is the typical sequence of discovery?
- Informal fact-finding
- Filing
- Service
- Meet and confer
- Required disclosures
- Proposed plan
- Scheduling order and conference
- Initial disclosures
What time is meet and confer required?
As soon as possible, no later than 21 days before scheduling conference
Can meet and confer be by phone?
Yes, but not by email
What is discussed in the meet and confer?
- nature of claims and defenses
- possibility of settlement
- making/arrange required disclosures
- objections to required disclosures
- preserving discoverable information
- electronic discovery
- discovery plan
When must discovery plan be submitted?
Within 14 days of meet and confer
When does court enter scheduling order?
- within 60 days of D’s appearance or
2. 90 days after complaint
