Discovery - Tools of Discovery Flashcards
Assuming no court order or stipulation provides otherwise, when can a party first request discovery from other parties?
After the Rule 26f conference
Discovery Tools
- Depositions
- Interrogatories
- Requests to produce
- Medical exam (physical or mental)
- Request for admission
Depositions
Here, a person gives live testimony in response to questions by counsel or pro se parties.
The questions are usually oral, but can be written (if written, they are read by the court reporter)).
Deponent testifies under oath.
The deposition is recorded by sound or video or stenographically and a transcript can be made.
Is the deponent required to review all her relevant files and notes before being deposed?
No - you testify from present recollection
Can you take the deposition of a party or of a nonparty?
Yes, but you should subpoena to compel attendance
Rule to get a party to a deposition?
You don’t need to subpoena a party; just serve notice of deposition.
A subpoena “duces tecum”
Requires the deponent to bring requested materials with her
Unless a nonparty agrees, what is the farthest she can be required to travel to have her deposition taken?
100 miles from where she resides or is employed
Limits on Depositions
- you cannot take more than 10 depositions
- you cannot depose the same person twice without court approval or stipulation.
- Deposition cannot exceed one day of seven hours unless court orders or parties stipulate.
Use of depositions at trial (all subject to rules of evidence):
- Impeach the deponent;
- any purpose if the deponent is an adverse party;
- any purpose if the deponent (regardless of whether a party) is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence.
Interrogetories
These are written questions, to be answered in writing under oath.
To whom can you send interrogatories?
The parties only
How long does the party have in which to respond with her answers or objections of an interrogetory?
30 days from service
Can you respond by saying you don’t know the answer to an interrogetory?
You must answer from information reasonably available to you - so you must do some HW here
What is the maximum number of interrogatories you can send to a party (unless there is a court order or stipulation for more)?
25
And that includes subparts, so no more than 25 actual questions.
Rule for if answers to interrogatories can be found in business records and it would be burdensome to find the answers
If the answers to interrogatories can be found in business records and it would be burdensome to find the answers, the responding party can allow the requesting party to
have access to the records.
Use of your own answers to interrogetories at trial
At trial, you cannot use your own answers to interrogatories. Others are OK per rules of evidence.
Requests to produce
These request that someone make available for review and copying documents or things, including ESI, or to permit you to enter designated property to inspect, measure, etc.
When must someone respond to a request to produce?
The person must respond in writing within 30 days
of service, stating that the material will be produced or asserting objections.
Can you make a request to produce of parties and of nonparties?
Yes, but you should subpoena the non-party
In what form is ESI to be produced from a request to produce?
The requesting party specifies the form and the responding party can object
How to obtain Medical exam (physical or mental)?
Obtain a court order
To get the court order, you must show: that the person’s health is in actual controversy and “good cause.”
Who can be ordered to undergo a medical exam?
A party or someone in the party’s custody or legal control. This is narrow (e.g., parent is in control of child).
How do you choose who conducts the medical exam?
The party seeking the order chooses the licensed person to perform the exam.
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?
Yes, by requesting it from the party who sought the exam
Consequence of Requesting to obtain medical report ordered by the other party
If Joe requests and obtains the report, he waives any privilege he might have concerning testimony about all examinations of that medical condition. So Joe would
have to produce reports of his own doctors concerning this medical condition.
Request for admission.
This is a written request that someone admit things.
Requests for admission are often used to authenticate documents – “admit that this is the contract.”
On who may a request for admission be served?
Parties only
How can the defendent respond to a request for admission and how much time does he have?
If D fails to deny specifically (or to object to the request) in writing within 30 days, he is deemed to admit
Can the responding party say she does not know the answer to a request for admission?
Only if he states he made a reasonable inquiry and cannot find enough info to admit or deny
Parties sign substantive answers to discovery under oath. What must counsel do for every discovery request and response?
Every discovery request and response is:
- signed by counsel certifying:
- it is warranted,
- it is not interposed for improper purpose, and
- it is not unduly burdensome.
After you respond to a discovery request, do you have any duties?
Duty to Supplement
If new circumstances render your responses incomplete or incorrect you must supplement your response, even if nobody asks
