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Civpro I > Discovery - Tools > Flashcards

Discovery - Tools Flashcards

1
Q

What are the tools of discovery? What rules?

A
  1. R.26 initial disclosures
  2. R.33 interrogatories
  3. R.34 requests for production of documents
  4. R.24/R.26 electronic discovery
  5. R.30 oral depositions
  6. R.35 physical and mental examinations
  7. R.36 requests for admissions
  8. R.45 subpoena
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2
Q

When must initial disclosures be made?

A

Within 14 days after meet and confer, unless altered by agreeement

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3
Q

What are the two delay buttons for initial disclosures?

A
  1. Parties agree to delay

2. Court may order delay

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4
Q

How does a court order a delay for initial disclosures?

A

Determined by

  1. reason to delay
  2. strength of motion
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5
Q

What is included in initial disclosures?

A
  1. identifying information of parties/witnesses
  2. documents which may support claim/defense of disclosing party
  3. computation of damages
  4. insurance agreement
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6
Q

What is initial disclosures limited to?

A

What is most favorable to party’s own claim/defense

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7
Q

Is supplementation required? When?

A

Yes, at later appropriate intervals

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8
Q

What happens for failure to make required disclosures?

A

Self-executing sanction

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9
Q

Interrogatories: rule

A

R.33

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10
Q

Interrogatories: request of

A

any other party

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11
Q

Interrogatories: form of request

A

written questions that relate to any matter that may be inquired into under R.26(b)

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12
Q

Interrogatories: form of response

A
  1. written answers signed by party
  2. with specific objections signed by counsel
  3. served within 30 days after receipt
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13
Q

Interrogatories: limit

A

25, including all discrete parts (unless parties agree or court grants leave)

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14
Q

How must interrogatories be answered?

A

With all information available to the party

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15
Q

Can institutional parties be sent interrogatories?

A

Yes, institutional party must be assigned by responding party and collect information from employees and agents

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16
Q

Requests for production of documents: rule

A

R.34

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17
Q

Requests for production of documents: request of

A

any other party, or nonparty by R.45 subpoena duces tecum

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18
Q

Requests for production of documents: form of response

A

respond to each item with agreement to inspection or specific grounds of objection

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19
Q

Requests for production of documents: limit

A

no limit

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20
Q

What do request for production of documents target?

A

Information in the responding party’s possession, custody, or control

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21
Q

Electronic discovery: rule

A

R.34 for request for documents

R.26 for ESI

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22
Q

ESI

A

electronically stored information

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23
Q

Electronic discovery: request of

A

Any other party, nonparty by R.45 subpoena duces tecum

24
Q

Electronic discovery: form of response

A

Respond to each item with agreement to inspection or specific grounds of objection

25
Q

Electronic discovery: limit

A

No limit in number, but limited in scope by R.26(b)(2)(B)

26
Q

Who typically bears cost of production?

A

Producing party

27
Q

When can cost-shifting be considered?

A

Undue burden = cost outweighs likely benefits

28
Q

Factors of undue burden for production

A
  1. Needs of case
  2. Amount in controversy
  3. Parties’ resources
  4. Importance of issues at stake in litigation
  5. Importance of proposed discovery in resolving issues
29
Q

Procedure for cost-shifting

A
  1. Motion to compel filed by requesting party
  2. Motion for protective order filed by responding party
  3. Litigation hold - all discovery cannot be destroyed
  4. Court ruling
30
Q

What can court do in failure to preserve discovery?

A

May order measure no greater than necessary to cure prejudice

31
Q

If party acted with intent to deprive, what measure can court order?

A
  1. Presume lost info was unfavorable or
  2. Instruct jury to presume info was unfavorable
  3. Dismiss case or enter default judgment
32
Q

Factors of cost-shifting analysis

A
  1. Extent to which request is specifically tailored to discover relevant information
  2. Availability of such information from other sources
  3. Total cost of production compared to amount in controversy
  4. Total cost of production compared to resources available to each party
  5. Relative ability of each party to control costs and incentive to do so
  6. Importance of issues at stake in litigation
  7. Relative benefits of parties obtaining info
33
Q

Oral depositions: request of

A

Any other party, any non-imprisoned non-party with R.45 subpoena

34
Q

What is the requirement to orally depose a non-party?

A

Must be within 100 miles of residence, workplace, or place of regular business by R.45

35
Q

Oral depositions: form of request

A
  1. Written notice to parties of deponent info
  2. Specifying time, place, and method of recording
  3. Could attach R.34 request for production of documents
36
Q

Oral depositions: form of response

A
  1. Opposing counsel may be present at depositions

2. Opposing counsel may object - objections other than privileged material will be noted and preserved

37
Q

Can oral depositions be used in trial?

A

Only under limited circumstances

38
Q

Oral depositions: limit

A
  1. 10, unless parties agree or court grants leave

2. lasting 1 day of 7 hours

39
Q

Physical and mental examinations: rule

40
Q

What do physical and mental examinations require? Why?

A

Court order because of concerns for privacy

41
Q

When is a court order for physical and mental examinations required?

A

Order available only

  1. as to conditions in controversy
  2. on showing of good cause
42
Q

Requests for admission: rule

43
Q

Requests for admission: request of

A

Any other party (no non-parties)

44
Q

Requests for admission: form of request

A
  1. Written request

2. Accompanied by document if requesting authentication

45
Q

Requests for admission: form of response

A
  1. Answer within 30 days after service

2. With specified denial, admission, or objection

46
Q

What is the benefit of request for admission?

A

Spares time/expense of authenticating document or specific factual admissions in trial

47
Q

Requests for admission: limit

48
Q

What is the result of admission (in request for admission)?

A

Conclusively established

49
Q

If not admitted, how must party reply (in request for admission)

A

State denial with specificity

50
Q

Are partial admissions/denials allowed in requests for admission?

51
Q

Subpoena: rule

52
Q

Subpoena: request of

A

Any other party, or nonparty with 100 miles of his home, workplace, or regular place of in-person business transactions

53
Q

Subpoena: form of request

A
  1. Include issuing court, title and number of action
  2. Specify time, place, and included obligations
  3. Can include request for production of documents by subpoena duces tecum
54
Q

Subpoena: form of response

A

Can be quashed or modified

55
Q

Subpoena: limit

56
Q

Can interrogatories be answered by presenting documents that contain answer instead of searching documents and writing answer?

57
Q

How can interrogatories be answered?

A
  1. In writing

2. By presenting relevant documents

Civpro I (18 decks)

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