LAC Discovery Flashcards
Required Dsiclosures
Msut be produced even if not requested
- Initial disclosures. Unless court order or stipulation of parties differs, within 14 days of the Rule 26(f) conference, you must identify persons documents or electronically stored info (ESI) “likely to have discoverable information that the disclosing party may use to support its claims or defenses.” P must give a computation of damages and D must disclose insurance for any judgment.
- Experts. As directed by court, must identify experts “who may be used at trial” and produce a written report containing opinions, data used, qualifications, compensation for the study, etc. That report and drafts of it are work product.
- Pretrial. No later than 30 days before trial, must give detailed information about trial evidence, including documents and identity of witnesses to testify live or by deposition.
Tools of Disocvery
Not to be used until afte 26(f) conference unless court order or stip allows.
- Depositions
- Interrogotories
- Requersts to Produce
- Physical or Mental Exam
- Request For admission
Depositions
- (questions can be oral or written (if written, read by court reporter)). Deponent gives sworn oral answers to questions by counsel (or pro se parties). Recorded by sound or video or stenographically and a transcript can then be made.
- Cannot take more than 10 depositions or depose the same person twice without court approval or stipulation. Deposition cannot exceed one day of seven hours unless court orders or parties stipulate.
- Notice of subpoena to a business may require it to designate the right person for deposition (e.g., to depose the person who designed a particular product).
Deposing non-parties
- Can depose nonparties or parties. Nonparty should be subpoenaed, however, or she is not compelled to attend. Subpoena could be “duces tecum,” which requires the deponent to bring material (e.g., documents) with her. Party need not be subpoenaed; notice of the deposition, properly served, is sufficient to compel attendance.
- Unless she agrees, nonparty cannot be required to travel more than 100 miles from her residence or place where she regularly transacts business for the depo.
Deposition in trial
Use at trial (all subject to rules of evidence):
(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.
Interrogatories
- Questions in writing to another party, answered in writing under oath.
- Must answers or object within 30 days.
- Can say you don’t know the answer, but only after reasonable investigation;
- if the answer could be found in business records and it would be burdensome to find, can allow requesting party access to those records.
- Cannot serve more than 25 (including subparts) without court order or stipulation.
Requests to Produce
- Requests to another party (or to non-party if accompanied by subpoena) requesting that she make available for review and copying various documents or things, including electronically stored info (ESI), or permit entry upon designated property for inspection, measuring, etc.
- Specify form in which ESI is to be produced (hard copy or electronic).
- Must respond within 30 days of service, stating that the material will be produced or stating objection.
Physical or Mental Eval
- Only available through court order on showing that party’s (or person in party’s control, e.g., parent in control of child) health is in actual controversy and “good cause” (i.e., you need it and can’t get it elsewhere).
- Party seeking the order chooses the suitably licensed person to perform the exam.
- Person examined may obtain copy of report simply by asking for it, but by doing so waives his doctor-patient privilege re reports by his doctors re that condition.
Request for Admission
- A request by one party to another party to admit the truth of any discoverable matters.
- Often used to authenticate documents; the propounding party will send copies of the documents to be authenticated with the request.
- Must respond within 30 days of service.
- The response is to admit or deny; can indicate lack of information only if indicate you’ve made a reasonable inquiry.
- Failure to deny is tantamount to an admission; you can amend if the failure was not in bad faith.
Signing Discovery Requests
Parties sign substantive answers to discovery under oath. Every discovery request and response is signed by counsel certifying
(1) it is warranted
(2) not interposed for improper purpose, and
(3) not unduly burdensome.
Duty to Supplement Discovery
Must supplement if you find additional information or info chages
Standard for discovery
- antying relevnt to a claim or defense
- is broader here than at trial. It includes things that are “reasonably calculated to lead to the discovery of admissible evidence.” SO DISCOVERABLE IS BROADER THAN ADMISSIBLE.
- even can be hearsay
- cannot discover things by privilige
Work product privilige
- trial preparation materials” (this is material prepared in anticipation of litigation). Generally, it is protected from discovery.
- Not discoverable if
- metnal impression
- opinions
- conclusions
- legal theories
- Other items may be discoverable if a 1) substnaial need is shown and 2) it’s not otherwise available
- Need to be generated by the party or any representatitve
Claiming Privilige or Work Product
- If you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection expressly and particularly describe the materials.
- You can do this in a privilege log that lists the materials by date, author, recipient, privilege, etc.
INadverdent Production
If you inadvertently produced protected material, notify the other party as soon as possible. The other party then has to return, sequester, or destroy it pending decision by the court about whether there has been a waiver.
