Pg 27

Question 1

How does request for production of documents work?

Answer 1

This requires other parties to produce documents, ESI, and tangible items in their possession or control, or the party can enter another’s land to inspect, survey, or measure.
This requires the opponent to open his files or go through them for the documents that are relevant to the issues in the suit and to produce them for the other side to review in preparation for trial. This can allow inspection of tangible things like in a car accident, or a urine sample for drugs.

Question 2

If you are requesting production of documents, how must that be done?

Answer 2

You must describe the items to be discovered with reasonable particularity, and identify a reasonable time, place, and manner for inspection. This usually happens at the office of the requesting party’s attorney, but a more convenient location is OK

Question 3

After a party gets a request for production of documents, how much time do they have to respond to it?

Answer 3

They must respond within 30 days of being served

Question 4

If you want to object to the other party’s request for production of documents, what do you have to do?

Answer 4

Specify the part and include the reasons, then allow inspection of the rest

Question 5

Who pays for the costs associated with production of documents once they have been requested from the other party?

Answer 5

The producing party pays for the initial search

Question 6

How do you request production of documents from non-parties?

Answer 6

You have to send a subpoena to command the information, inspection, documents, or items

Question 7

If one party requests production of documents and you just open your records for them to have to dig around themselves, what are the things you also have to do?

Answer 7

You must identify the nature and organization of the records enough to allow them to locate or identify the records and this is only allowed when the burden of extracting the information is substantially the same for both parties.

Question 8

If it is super expensive to produce documents that the other party has requested that you produce for them, what are the factors that the court considers before they decide to shift discovery costs to the other party?

Answer 8

– the extent of the request was specifically tailored to discover the relevant information
– the availability of that information from other sources
– the total cost of production versus the AIC and resources that are available to each party
– the relative ability of each party to control the costs and their incentive to do it
– the importance of issues at stake in the litigation
– the relative benefits to the parties of getting the information

Question 9

When is cost shifting allowed with regard to request for production of documents?

Answer 9

It is only appropriate for inaccessible data, not for accessible data

Question 10

What is ESI?

Answer 10

Electronically stored information

Question 11

When is ESI discoverable?

Answer 11

When it is stored in any medium that can be obtained and translated in a reasonable useable form. Doesn’t have to provide discovery of sources that are not reasonably accessible because of undue burden or cost, but it can be ordered if the party shows good cause. This includes things like texts and emails

Question 12

What are the principles that govern ESI discovery?

Answer 12

• the burdens and costs of preservation of relevant information weighed against the value and uniqueness of the information
  – discovery should be by the most convenient and least burdensome or expensive way
  – undue burden or expense
• delay from the party’s action or inaction is weighed against that party

Question 13

What is spoliation?

Answer 13

Destruction, significant alteration of evidence or failure to preserve property for another’s use as evidence in a pending or reasonably foreseeable litigation.

Question 14

If spoliation happens to evidence that is germane to the proof of an issue at trial, what inference does that create?

Answer 14

An inference that it would have been unfavourable to the party that destroyed it

Question 15

How are sanctions determined for spoliation?

Answer 15

Done on a case by case basis and usually done when evidence is destroyed in bad faith

Question 16

What is the obligation with regard to spoliation?

Answer 16

An obligation to preserve evidence when a party has noticed that it is relevant to the litigation or should have known that it would be to future litigation. You cannot destroy unique or relevant evidence that might be useful to your adversary. You don’t have to keep every document, but you must keep those that you know are relevant to the action. Once a party anticipates litigation, it must suspend its routine document retention or destruction policy and preserve relevant documents.

Inaccessible email back-up tapes for disaster recovery can continue to be recycled on schedule but if they are accessible then they are subject to the hold.

Question 17

What are the elements for spoliation?

Answer 17

• duty to preserve
  – records destroyed with a culpable state of mind including negligence
• destroyed evidence was relevant to the party’s claim

Question 18

When information is mistakenly produced for the other party, what happens?

Answer 18

The party can notify of the disclosure and the other party must destroy it, return it, or hold it, pending adjudication of privilege issues by the court.

Question 19

What is the multi-factor approach that is used by many courts when information is mistakenly produced?

Answer 19

This considers:
– precautions that were taken to avoid disclosure
– the time it took to discover the error
– the scope of the production
– the extent of the material that was inadvertently disclosed
– general considerations of fairness

Question 20

If information is inadvertently disclosed to the other party, is that considered to be a waiver of privilege?

Answer 20

Not if it was inadvertent and the holder took reasonable steps to prevent the disclosure and promptly took reasonable steps to rectify it

Question 21

What is involved in oral depositions?

Answer 21

These are scheduled and conducted by counsel and they allow the party to be questioned under oath. A court reporter records the questions, answers, objections, and makes a transcript for the deponent to sign. Usually this happens after interrogatories and request for documents.

Question 22

Why are oral depositions usually held off until trial is likely?

Answer 22

Because they are expensive

Question 23

What is required with regard to notice for oral depositions?

Answer 23

Must give reasonable written notice to every other party about the deposition that states the place, time, and the deponent’s name and address or a general description to identify him