Essay 5095 Flashcards
Broad Scope of Discovery
Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action and proportional to the needs of the case. Information within the scope of discovery need not be admissible in evidence to be discoverable. The test is whether the information sought is relevant to any party’s claim or defense.
Special/Written Interrogatories Limit*
Any party may serve no more than 25 written interrogatories on any other party. The court, however, has the power to alter the limit on the number of interrogatories.
Issue: interrogatories used to request a document
Improper Discovery Device.
A written interrogatory is a discovery device that allows a party to request answers to questions that are relevant to a party’s claim or defense and not privileged. However, interrogatories may not be used to request a document. A request to produce documents, on the other hand, is a discovery device that allows a party to request production of and/or inspection of designated documents.
Timing of Discovery*
Under Rule 26(f), the parties must confer as soon as is practicable, and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due to develop a discovery plan. Discovery generally may not be made before the discovery conference and a discovery plan is agreed upon.
Basis for Objection - Interrogatory
Each interrogatory must be answered fully and separately under oath, unless the responding party objects to the interrogatory. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is deemed waived, unless the court, for good cause, excuses the failure.
Motion to Compel – Timing
If a party fails to respond to a discovery that has been properly served, then the party seeking the information may move to compel such discovery. A motion to compel must be served on all parties and be accompanied by a certificate that the movant has in good faith conferred or attempted to confer with the opposing party in an effort to obtain the disclosure or secure the information or material without court action.
Discovery - Mental Exam & Physical Exam
A party may seek to have the other party submit to a physical or mental examination by a suitably licensed or certified examiner when the other party’s physical or mental condition is in controversy. An order for a physical or mental exam may be made only upon motion, for good cause shown, and the person to be examined and all parties must be given prior notice specifying the time, place, conditions, and scope of the examination and the identity of the examiner.
Experts – Mandatory Disclosure
Testifying vs Consulting Expert Witnesses
Rule 26(a)(2) requires parties to disclose the identities of persons who may testify as expert witnesses and to produce an expert report for each such witness. The expert report must be prepared and signed by the expert and contain all the relevant information, including the expert’s name, the expert’s qualifications, the opinions to be offered, the basis for all opinions, and the facts or data considered by the expert in forming the opinions.
If the expert was retained or specially employed by another party in anticipation of litigation or to prepare for trial but is not expected to be called as a witness, then discovery is permitted only on a showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
Moreover, a party must disclose the names and reports of testifying experts at the times and in the sequence the court orders, but absent a stipulation or court order, the disclosures must be made at least 90 days before the date set for trial.
Work Product Privilege
Generally, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. Disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation are absolutely protected. For all other trial preparation materials, a court may order discovery if the party shows that it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain a substantial equivalent by other means.
