Pg 25 Flashcards
What is discovery?
Court mandated production of information from other parties or non-party witnesses.
Parties exchange information about their claims and defences and prepare for trial through depositions. Counsel can demand production of evidence from those that have it.
Parties must provide the name, address, and phone number of each person that is likely to have discoverable information, if known, plus subjects of that information that they may use to support their claims and defenses, a copy or description of all documents, ESI, and tangible things in their possession or control that can be used to support the case, computation of each category of damages claimed, etc.
What is the timing for initial discovery?
It must be made within 14 days after the party’s conference unless a different time is set, and disclosure must be made based on the information reasonably then available
What is required for disclosure of witnesses?
Each party must disclose any witnesses that may be used at trial in a written report. If an expert will be used, the report must include a complete statement of all opinions that will be expressed by the expert and the reasoning for it, facts and data that were considered in forming the expert opinion, qualifications and publications of the expert, other cases that he testified in, and the amount he has been paid
When does discovery occur?
A minimum of 90 days before trial
When must pre-trial disclosures be made?
30 days before trial
What is the rationale behind discovery?
- it preserves relevant information that might not be available at trial, for things like witnesses that are old or ill or leave
- it isolates issues that are actually in controversy
– it determines what information is available
– it promotes transparency
– it gives wide access to information possessed by adversaries or third parties before trial
Is it possible to object to privileged information being included in discovery?
Yes, if the request is too broad or burdensome. There must be a good explanation for the objection that includes the specific grounds
What is a pre-trial conference?
The parties and the judge have a scheduling conference where the judge issues a scheduling order within 120 days after the defendant is served, or 90 days after he has appeared. The order limits things like the time to join other parties, amend the pleadings, complete discovery, and file motions. The schedule can then only be modified for good cause with the judge’s consent
What is the general scope of discovery?
It is only available for things that are relevant to the claim or defense of a party. Discovery is done by parties, not the court. The judge only helps with scheduling discovery and resolving disputes
If a question comes up about discovery in federal court, what should you always discuss?
The scope of discoverable information. Parties can obtain discovery regarding any non-privileged matter that is RELEVANT to any party’s claims or defense and PROPORTIONAL to the needs of the case.
The court compares the hardship to the party that discovery is sought against versus the hardship to the party seeking discovery if it is denied. He considers the nature and magnitude of the hardship and gives more weight to interests with social value than purely private interests
What is the relevance test for discovery?
A person can get discovery from any non-privileged matter that is relevant to any party’s claims and defenses including documents and tangible things in person to have discoverable matter. For good cause, the court can order discovery of any matter that is relevant to the subject matter.
If an issue is relevant, does that mean it is automatically subject to production in discovery?
No, relevant information is discoverable unless otherwise limited by the court
What does relevant mean in discovery?
If there’s any possibility that the information sought may be relevant to any claim or defence of any party
