FRCP: Discovery

Question 1

Required disclosures - 3 kinds

Answer 1

initial disclosures, expert witnesses, pretrial required disclosures

Question 2

Initial disclosures

Answer 2

Required disclosures– – unless court order or stipulation of parties says otherwise, within 14 days of the rule 26f conference, each party must disclose
1) ID of any people that have discoverable info, but only if it helps your claim, 2) supporting documents and thins
Cannot use unless failure to disclose was harmless orjustified

i. identity of persons who have discoverable info that you the disclosing party may use to support your claims or defenses
1. ONLY if this will support your claim, not if harmful to your case
3. if you fail to identify, cannot use that witness unless failure to id was justified/ harmless

ii. documents and things you may use to support your claims or defenses IN YOUR CONTROL. must provide copies.
1. includes photos, recordings, electronically stored info (ESI)
2. includes tangible things, like remnants of damaged tire.

3. if party fails to disclose something, cannot use it unless justified or harmless

iii. computation of monetary relief and stuff supporting it
iv. insurance coverage– ∆ must disclose any insurance that may cover any or all of the judgment
1. even though may be inadmissible in trial.
2. discoverable is broader than admissible

Question 3

expert witnesses

Answer 3

later in the case, directed by the court, party must ID expert witness who MAY be used

ii. disclosures about the EW: identity and written report must be disclosed. must include
1. opinions the EW will express
2. bases for opinions
3. facts used to form opinions
4. EWs qualifications
5. how much being paid
vi. if party fails to ID an expert and provide required info→ cannot use EW in the case unless failure was justified/ harmless

iii. may depose the expert witness
1. 3p may subpoena EW to compel attendance
2. must pay reasonable fee per hour
iv
. early drafts of EW report and communications between lawyer and EW are work product

v. EW is an expert who is hired to render an opinion IN THIS CASE. other people may have expertise who testify, but they aren’t EWs in this case
1. doctor who operated on π is an expert in medicine, but not hired as an expert in this case.

EW ID is a required pretrial disclosure

Question 4

Pretrial required disclosure

Answer 4

no later than 30 days before trial, must give detailed info re trial evidence, including ID of witnesses to testify live or by deposition and documents/ evi/ things to be introduced at trial.

Question 5

When can parties first request discovery

Answer 5

—after 26(f) conference (assuming no court order provides otherwise)
i. exception: you can serve requests to produce earlier, more than 21 days after service of process. Treated as if served at 26f conference.

Question 6

List of all discovery tools

Answer 6

Depositions, Interrogotaries, requests to produce, Mental or physical medical exams, request for admission

Question 7

Depositions

Answer 7

a person gives live testimony in response to questions by counsel. Usually oral but can be written. Deponent testifies under oath.
i. deponent testifies from present recollection. Doesn’t have to review all relevant files.

ii. You can notice the deposition of a party or a nonparty
1. nonparty should be subpoenaed to compel attendance
2. don’t have to subpoena a party, just serve notice of deposition
iii. a subpoena “duces tecum” requires the deponent to bring relevant documents with them

iv. Unless a nonparty agrees, the farthest they can be required to travel to have deposition taken is 100 miles

v. alternative to interrogatories, for ex if you don’t know who in a co to depose: notice the deposition of the ∆ and describe matters for examination.
1. then the co must designate the proper person to be deposed.

vi. limits on depositions: no more than 10 depositions or depose the same person 2x without approval. cannot exceed one day of 7 hours

vii. use of depose at trial:
1. impeach the deponent
2. any purpose if deponent is an adverse party
3. any purpose if the deponent is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence.
imprisonment counts as unavailability

Question 8

c. Interrogatories

Answer 8

questions written and answered under oath. can only send to parties.

i. party has 30 days from service to respond. unless you serve by mail (extra 3 days)
ii. you must answer from info reasonably available. have to do your homework on things in your control.
iii. max no: 25 unless court order,
1. includes subparts. no more than 25 actual qs.
iv. if the answers to interrogatories are found in biz records and burden of finding them would be about the same for either party, responding party can allow the requesting party access to records.
v. at trial, cannot use your own answers to interrogatories. others are ok per rules of evidence

Question 9

d. Requests to produce

Answer 9

request that someone make avail for review and copying things or permission to enter property. must respond within 30 days of service saying material will be produce or posting objections

i. only can request to parties. can get info from nonparties thru subpoena.
ii. Requesting party must specify form of ESI production. responding party can object (for ex. don’t want to print it out)

Question 10

e. Medical exam physical or mental

Answer 10

unique, must get a court order.

i. to get order: show that person’s health is in controversy, and “good cause”
ii. a party or someone in the party’s custody or legal control can be ordered to take medical exam. basically parent and child. NOT employer and employee.
iii. the party seeking the order chooses the dr. who makes the exam.
iv. The party that is examined can get a copy of the medical report by requesting it.
1. but if he requests it he waives dr. patient privilege re their condition and may have to produce all those docs.

Question 11

Request for admission

Answer 11

request that someone admit something.

i. only for parties.
ii. must deny or object to the request in 30 days. otherwise deemed to admit it.
iii. Responding party can say she does not know, but must state she made a reasonable inquiry but cannot find enough info to admit or deny.
iv. often used to authenticate documents – “admit this is the k”
g. Parties sign substantive answers under oath. R 11 doesn’t apply to discovery documents. But every discovery request and response is signed by counsel certifying that
i. it is warranted
ii. it is not interposed for improper purpose
iii. not unduly burdensome.

Question 12

Duty to supplement

Answer 12

h. duty to supplement—if after you respond to discovery, circumstances in the real world change. your response to the discovery request is now incomplete or incorrect. must supplement your response.

Question 13

Scope of discovery

Answer 13

a. Discoverable: anything relevant to a claim or defense and proportional to the needs of the case
b. Discoverable is broader than admissible at trial. Anything that is reasonably calculated to lead to admissible evidence.
c. discovery requests must be proportional to needs of case. Look to cost of discovery vs. claim for relief
d. Upon request by other side, parties must produce anything relevant, even if harmful.
i. But harmful stuff need not be disclosed in regular discovery.

1. can reject a discovery request that isn’t relevant for the court to decide.Other side can file motion to compel discovery.
2. Info about wealth for compensatory damages—not relevant.
   BUT, for punitive damages, someone’s wealth is relevant. you need to know how much someone is worth if you want to punish them.

e. things that aren’t reasonably discoverable because enormous cost—for example to restore deleted emails. ∆ can move for a protective order, but π can still show good cause for discovery anyways. court can order production and allocate the expense between the parties.

Question 14

Privilege

Answer 14

can object on basis of privilege, e.g. atty-client

Question 15

6. Work product or trial prep materials

Answer 15

material prepared in anticipation of litigation. Generally protected from discovery. Routine work product isn’t in anticipation.

a. Doesn’t have to be generated by a lawyer. Party or any agent of party.
b. Qualified work product But may be able to discover some of the contents of work product, such as witness statements in the work product if that party wanting access has considerable need and witness is otherwise unavailable
c. absolute work product—cannot be discovered. mental impressions, opinions, conclusions and legal theories. “opinion work product.”
d. IDENTITY of people with discoverable info is discoverable, is not work product. even if you spent lots of money finding it out.
e. Party has a right to request its own statement, not work product.

Question 16

How to assert privilege or work product

Answer 16

must claim the protection expressly and describe materials in detail.

a. privilege log– list protected materials by ate, author, recipient and protection claimed in enough detail for judge to determine whether its protected.
b. if you accidentally give the other side protected material, you should notify other party promptly, the other party must return, sequester or destroy it unless waiver by court.

Question 17

Enforcement of discovery rule

Answer 17

a. Three ways to get courts involved
i. protective order—if responding party thinks request subjects it to annoyance, embarrassment, undue burden or expense or the request is cumulative and not proportional, party can move for protective order
1. must certify that party tried in good faith to get info handled without court involvement, and met with other side
2. if court agrees it can
a. deny, limit, or permit on specified terms
3. for ex. protective order that a trade secret only be used in litigation and not in the market.
ii. responding party responds but not fully—other party can make motion to compel answers, court will decide whether objections were legit
iii. no response to discovery request—

Question 18

Sanctions against a party

Answer 18

the party seeking sanctions must certify that they tried in good faith to get info “to meet and confer”. if you fail to meet and confer or try to meet and confer, cannot get an award of reasonable expenses.
i. less than a full response—two steps
1. move for order compelling the party + costs of ringing motion
2. if you violate an order compelling discovery, can be held in contempt
a. unless it’s a medical exam-0no contempt for refusing to submit to medical exam
b. costs include things like travelling to attend a
pretrial conference

ii. if you don’t respond to a discovery request:
1. other party gets sanctions plus costs and atty fees for motion. direct to “merits sanctions”
2. merits sanctions (up to judge)
a. establishment order (establishes facts as true)
b. strike pleadings of disobedient party as to issues re discovery
c. disallow evidence as to issues re discovery
d. dismiss π case (must show bad faith)
e. default judgment against ∆, only if bad faith

Question 19

Litigation hold

Answer 19

if litigation reasonably anticipated, parties must preserve discoverable info n

c. for ex. if ESI is truly lost, because the party failed to take reasonable steps to preserve it. The court may enter an “adverse inference” order—that the jury must presume that info is unfavorable to the party that lost it
i. ONLY IF that party lost the info with the intent to deprive the other party of it

Question 20

Failing to object in a deposition

Answer 20

viii. Errors in discovery which could have been obviated at trial if proptly presented are waived unless you object at the deposition.