Pg 29

Question 1

What is the time frame during which you must automatically disclose testifying experts?

Answer 1

At least 90 days before trial

Question 2

Is an expert permitted to talk about something at trial that was not listed in disclosure?

Answer 2

No

Question 3

Do you need to disclose the identity of non-testifying experts?

Answer 3

No

Question 4

What is a situation to watch out for with regard to testifying experts?

Answer 4

Sometimes a person is an expert in their fields but he got his knowledge for the case in the course of his normal job.

I.e.: metallurgist that consulted for a mining company and did a stress test before the accident. He is not an expert because his knowledge comes from the ordinary course of his employment. He is just a fact witness so he is subject to full discovery

Question 5

If the other party hires 2/3 of all the possible experts and there’s only one left, do you have any recourse?

Answer 5

No. Nothing bars the parties from hiring good experts even if there are only a few. So unless there are exceptional circumstances nothing can be done. Sometimes cornering the market on experts is considered to be an exceptional circumstance

Question 6

What is work product privilege?

Answer 6

This bars the production of materials developed in the anticipation of litigation. Discovery only relates to documents and tangible items, not to mental impressions, conclusions, opinions, or legal theories. But this does not protect facts from being discovered.

Question 7

What are things that would be considered work product privilege?

Answer 7

The attorney’s strategy, tactics, and mental impressions about her case are absolutely protected or sometimes subject to disclosure only under the showing of the most extreme necessity. Conclusions, opinions, thought processes, or legal theories and litigation strategy of a party’s attorney representative are protected from disclosure

Question 8

When does work product privilege extend to non-attorneys?

Answer 8

When they are representing a party and are insurers. An agent is covered under work product if the information is collected in anticipation of litigation and not just to figure out a claim, and the information must be something to show the thoughts and processes of the attorney or agent, not just underlying factual information.

Ie: pictures of the accident scene are not work product

Question 9

What is considered to be work product?

Answer 9

Materials in a lawyer’s file and mind created in the course of investigating a case or preparing to try it.

Ie: notes on witness interviews, recording of witness interviews, memos on factual or legal issues, trial notebooks, lists of exhibits, indexes of depositions, emails between co-counsel about strategy or litigation planning, documents lawyers create to develop cases, etc.

Question 10

What is the standard to determine if something is prepared in anticipation of litigation?

Answer 10

Courts look at whether there is a good faith belief that litigation is a real possibility or is objectively reasonable

Question 11

Can work product privilege apply to memos that are created by one employee to another with no lawyer involved?

Answer 11

Yes, since the rule applies to documents and tangible things prepared by or for another party or by or for that party’s representative. Parties prepare for trial too, so the rule protects the privacy of their preparation and the attorney’s

Question 12

Can materials be prepared in anticipation of litigation and thus be protected as work product privilege even if no suit has been filed yet?

Answer 12

Yes, if it is clear that a suit is imminent and the documents are for use in the case. But if notes were prepared before a dispute and they were only for general record keeping purposes, they are not protected

Question 13

What is the exception to work product privilege?

Answer 13

For materials and information that the opposing party can show he needs based on GOOD CAUSE or NECESSITY for disclosure.

IE: If one attorney got a statement from a now deceased witness that was the only unbiased source of information about the cause of the accident, that would be good cause and necessity and there’s no way to interview her or get a statement now that she’s dead. Must show substantial need and that party cannot get the material or it’s substantial equivalent any other way without undue hardship

Question 14

When are sanctions imposed with relation to discovery?

Answer 14

If there has been abuse of the discovery process

Question 15

What is considered to be abuse of the discovery process that would allow for sanctions?

Answer 15

• a party failing to cooperate
• seeking unnecessary evidence to drive up costs
• using discovery to manufacture a suit that couldn’t otherwise be filed
• attorney challenging discovery request just to cause a delay

Question 16

What is a motion to compel production?

Answer 16

If a party brings this, he must show he has in good faith conferred or attempted to confer with the other party failing to make disclosure in an effort to get it without court action. If parties cannot resolve this on their own, then the court decides. The party must show that he first conferred informally in an attempt to resolve the dispute.

Question 17

Sanctions can be placed on any culpable individual that does what with regard to discovery?

Answer 17

Impedes, delays, or frustrates the fair examination of the deponent. Then that person has to pay costs and attorney fees

Question 18

What is the safe harbour provision for sanctions regarding ESI loss?

Answer 18

Unless there are exceptional circumstances, sanctions cannot be imposed for the loss of ESI resulting from routine, good faith operation of the ESI systems.

But once litigation starts or is reasonably anticipated, the party has a duty to preserve evidence.

Question 19

What are some of the things that sanctions can include with regard to the discovery process?

Answer 19

Imposition of costs, attorney fees, expenses, termination of suit, contempt of court, striking pleadings, staying further pleadings, inform the jury of party’s failure to do something, etc.

Question 20

What are procedures that allow for the disposition of a case without having to go to trial?

Answer 20

– summary judgment
– motion to dismiss for failure to state a claim
– default judgment
– dismissal for failure to prosecute
– voluntary dismissal