Pg 28 Flashcards
Where must a deposition be taken?
It must be taken in front of an officer and has to begin with an on the record statement about the deponent’s name, address, date, place of the deposition, oath administration, and identity of everyone present, then it must state on the record when the deposition is complete and set up stipulations for custody of the transcript
How are deponents questioned by attorneys?
They are questioned by attorneys on both sides through direct and cross examination and the statement is recorded
After someone has taken a deposition that gives information, can you impeach that witness later if they change their story?
Yes
Everything said in a deposition is considered to be what?
An admission that can be used as evidence at trial
What is the limit for how many depositions each party can take?
Each party can take 10 depositions. The depositions can only last one day and no more than seven hours for non-parties unless the parties agree among themselves to longer sessions
When can a deponent be told not to answer a question during a deposition?
Only when it’s necessary because the question is oppressive or in bad faith since it is meant to annoy, embarrass, or offend. The attorney can instruct the deponent not to answer the question and indicate his intent to make an FR30 motion
Can you take more than one deposition from a natural person?
Not unless the court orders otherwise for good cause
Once a witness for a deposition is sworn, what can he be examined about?
Any issues within the scope of discovery. His attorney can object on grounds like relevance but the witness usually still must answer and the objection is just noted [unless the objection is attorney-client privilege]
Who bears the recording costs for depositions?
Noticing party
Is it possible for a court to allow a deposition to be taken by remote means? And if so, where is it considered to have taken place?
The court can allow the deposition by remote means and it is considered to take place whereever the deponent answers the questions
What is involved in the duty to supplement responses for depositions?
When a party or lawyer gets actual knowledge that a prior response is not correct, there is a duty to supplement the response in order to prevent knowing concealment
Do you need to subpoena parties for depositions?
No, because notice is enough to require his appearance without a subpoena
If a deponent is not a party to the action, is notice enough to compel his appearance?
There is no requirement for a subpoena, but if he doesn’t appear and there isn’t one, there’s no sanction for him not appearing. If he doesn’t respond to a subpoena, however, he can be held in contempt.
If an attorney notices the deposition of a corporation or association, he can require them to produce who?
A person with knowledge of the subject matter
What is Irata?
Corrections that a witness can make after the transcript is issued. Always have a witness review the transcript to be sure that everything is correct. Maybe the witness misspoke and needs to be re-deposed
What is involved in making a request for admission?
This authorizes a party to serve on another party a written request to admit the truth of things or the genuineness of documents or evidence to be used at trial. The party does not have to disclose information, he just has to shape information that is already known. There’s no limit on the amount of these that can be given.
After one party files a request for admission on another party, if they do not get a timely response, what happens?
It is deemed to be admitted once the time to respond passes. But if a party serves a later response, the court can excuse the lateness
What is the rationale behind requests for admission?
This removes uncontested issues from the case
If requesting an admission from the opposing party, when must it be done?
No later than 30 days before trial and each matter of admission must be set forth separately
When you make a request for admission, what is the response supposed to be?
The other party has to respond in a timely fashion and under oath. They either admit or deny each matter or they give detailed explanations of why they can’t. They can object to a request because it is improperly phrased
If there is a request for admission and the other party admits something, what does that mean?
It is then conclusively established unless the court permits the admission to be withdrawn or amended
What is the duty to supplement responses?
There’s a duty to supplement discovery responses if a party learns that the response is incomplete or incorrect and updated information hasn’t otherwise been made known to the other parties during the discovery process or in writing
What is a physical or mental exam that happens during the discovery process?
The court can force a party to submit to a physical or mental exam as long as the person’s physical or mental condition is in controversy and the movant shows good cause for the exam. The court weighs things like pain, danger, and intrusiveness against the need for it and the usefulness.
When are physical or mental exams during discovery considered to be routine?
Personal injury cases, paternity, incompetence, and undue influence cases
What must be stipulated if you are asking for a physical or mental exam during discovery?
The time, place of the exam, and procedures to be used
In order to compel the other party to undergo a physical or mental exam during discovery, what is required?
Permission from the court and then the moving party chooses the medical professional
What is required before another party will undergo a physical or mental exam during discovery?
Good cause
Can you have an attorney present during a physical or mental exam for discovery?
Not unless the court allows it for good cause
If the other party refuses to submit to a mental or physical exam, what can you do?
Bring a motion to compel
When can you always request a medical exam of the other party?
If someone claims personal damages
Do you have to be a party to the action before a physical or mental exam can be required?
Yes, but you do not have to be the opposing party
What is an expert witness?
Someone that has specialized knowledge, skill, and education to assist the trier of fact in understanding the facts or in making conclusions and issues.
What can you use an expert witness for?
- B=background information to help understand the case
- to give opinions on important issues with the case according to professional standards
- to help the attorney understand issues of the case but not to be used as an actual expert witness at trial (non-testifying expert)
What is a non-testifying expert?
An expert that the attorney uses to help understand issues in the case that he doesn’t plan to use as a witness at trial
