Discovery - Tools of Discovery

Question 1

Assuming no court order or stipulation provides otherwise, when can a party first request discovery from other parties?

Answer 1

After the Rule 26f conference

Question 2

Discovery Tools

Answer 2

1. Depositions
2. Interrogatories
3. Requests to produce
4. Medical exam (physical or mental)
5. Request for admission

Question 3

Depositions

Answer 3

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.

Question 4

Is the deponent required to review all her relevant files and notes before being deposed?

Answer 4

No - you testify from present recollection

Question 5

Can you take the deposition of a party or of a nonparty?

Answer 5

Yes, but you should subpoena to compel attendance

Question 6

Rule to get a party to a deposition?

Answer 6

You don’t need to subpoena a party; just serve notice of deposition.

Question 7

A subpoena “duces tecum”

Answer 7

Requires the deponent to bring requested materials with her

Question 8

Unless a nonparty agrees, what is the farthest she can be required to travel to have her deposition taken?

Answer 8

100 miles from where she resides or is employed

Question 9

Limits on Depositions

Answer 9

• 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.

Question 10

Use of depositions at trial (all subject to rules of evidence):

Answer 10

1. Impeach the deponent;
2. any purpose if the deponent is an adverse party;
3. 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.

Question 11

Interrogetories

Answer 11

These are written questions, to be answered in writing under oath.

Question 12

To whom can you send interrogatories?

Answer 12

The parties only

Question 13

How long does the party have in which to respond with her answers or objections of an interrogetory?

Answer 13

30 days from service

Question 14

Can you respond by saying you don’t know the answer to an interrogetory?

Answer 14

You must answer from information reasonably available to you - so you must do some HW here

Question 15

What is the maximum number of interrogatories you can send to a party (unless there is a court order or stipulation for more)?

Answer 15

25

And that includes subparts, so no more than 25 actual questions.

Question 16

Rule for if answers to interrogatories can be found in business records and it would be burdensome to find the answers

Answer 16

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.

Question 17

Use of your own answers to interrogetories at trial

Answer 17

At trial, you cannot use your own answers to interrogatories. Others are OK per rules of evidence.

Question 18

Requests to produce

Answer 18

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.

Question 19

When must someone respond to a request to produce?

Answer 19

The person must respond in writing within 30 days
of service, stating that the material will be produced or asserting objections.

Question 20

Can you make a request to produce of parties and of nonparties?

Answer 20

Yes, but you should subpoena the non-party

Question 21

In what form is ESI to be produced from a request to produce?

Answer 21

The requesting party specifies the form and the responding party can object

Question 22

How to obtain Medical exam (physical or mental)?

Answer 22

Obtain a court order

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

Question 23

Who can be ordered to undergo a medical exam?

Answer 23

A party or someone in the party’s custody or legal control. This is narrow (e.g., parent is in control of child).

Question 24

How do you choose who conducts the medical exam?

Answer 24

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

Question 25

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 25

Yes, by requesting it from the party who sought the exam

Question 26

Consequence of Requesting to obtain medical report ordered by the other party

Answer 26

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.

Question 27

Request for admission.

Answer 27

This is a written request that someone admit things.

Requests for admission are often used to authenticate documents – “admit that this is the contract.”

Question 28

On who may a request for admission be served?

Answer 28

Parties only

Question 29

How can the defendent respond to a request for admission and how much time does he have?

Answer 29

If D fails to deny specifically (or to object to the request) in writing within 30 days, he is deemed to admit

Question 30

Can the responding party say she does not know the answer to a request for admission?

Answer 30

Only if he states he made a reasonable inquiry and cannot find enough info to admit or deny

Question 31

Parties sign substantive answers to discovery under oath. What must counsel do for every discovery request and response?

Answer 31

Every discovery request and response is:

• signed by counsel certifying:
  
  1. it is warranted,
  2. it is not interposed for improper purpose, and
  3. it is not unduly burdensome.

Question 32

After you respond to a discovery request, do you have any duties?

Answer 32

Duty to Supplement

If new circumstances render your responses incomplete or incorrect you must supplement your response, even if nobody asks