Pretrial Proc's - Discovery

Question 1

Rule 26(f) Conference.

Answer 1

The parties must confer as soon as it is practicable to:

Consider their claims and defenses, the possibility of settlement, initial disclosures (see below), and a settlement plan;

AND

Submit to the court a proposed discovery plan addressing the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required by the court.

Note: Additional pretrial conferences may be held to expedite the trial and foster settlement.

Question 2

Each party to an action MUST make certain initial disclosures, even if an opposing party does not ask for such information, within

Answer 2

14 days after the parties’ Rule 26(f) conference.

Question 3

Required initial disclosures include:

Answer 3

The names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses, UNLESS the use would be solely for impeachment;

Copies or descriptions of documents, electronically stored information, and tangible things that are in the disclosing party’s possession or control that the disclosing party may use to support its claims or defenses, UNLESS the use would be solely for impeachment;

A computation of damages claimed by the disclosing party and copies of materials upon which the computation is based;

AND

Copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.

Question 4

Scope of Discoverable Information.

Answer 4

Generally, discovery is permitted with regard to any non-privileged matter that is:

Relevant to any party’s claim or defense in the action;

AND

Proportional to the needs of the case.
You have forgotten this element, so be sure to remembrer. If there is another way for the party to get the information or something, may not be proportional to the needs of the case.

NotE: one significant exception is that a party does not normally have to disclose the identity of a potential witness, or produce a document, where the disclosing party’s use of that document or witness would be “solely for impeachment.”

Question 5

The federal discovery rules thus currently establish a “two-tiered” approach to relevance:

Answer 5

“the first tier being attorney-managed discovery of information relevant to any claim or defense of a party, and the second being court-managed discovery that can include information relevant to the subject matter of the action.”

for the second tier, need GOOD CAUSE: good cause is needed to discover information that is “relevant to the subject matter in involved in the action.”

Question 6

Limitations on Discovery.

Answer 6

On motion or on its own, the court is required to limit the frequency or extent of discovery if the court determines that:

The discovery sought is unreasonably cumulative or can be obtained from some other source that is more convenient or less expensive;

OR

The party seeking discovery had ample opportunity to obtain the information by discovery in the action.

Question 7

Depositions. A party may take the deposition of

Answer 7

any party or nonparty witness (with a subpoena) at any time after the party has made its initial disclosures.

Without leave of the court, the plaintiffs and the defendants, each as a group, are limited to 10 depositions by oral or written examination.

Question 8

A party who seeks an oral deposition of a person must

Answer 8

give reasonable written notice to every other party, stating the time and place of the deposition and, if known, the deponent’s name and address.

An oral deposition is limited to 1 day of 7 hours, unless the parties agree otherwise or the court orders otherwise.

Question 9

If P seeking to depose the other party, the requesting party may choose to locate the deposition

Answer 9

anywhere it wishes, although the party deponent is free to move for a protective order to change the location. Moreover, both the requesting party and the party deponent may move the court for an order to take a deposition remotely (for example, by telephone or videoconference). See FRCP 30(b)(4). When there is a dispute about where the deposition will take place, the decision “is ultimately an exercise in the vast discretion a district court has in supervising discovery.” New Medium Technologies LLC v. Barco N. V., 242 F.R.D. 460, 462 (N.D. Ill. 2007). Keep in mind that a different rule applies to the location of a deposition of a nonparty witness. FRCP 45(c)(l) sets limits to how far a nonparty deponent may be required to travel.
Subparagraph (A) limits it to within 100 of miles of where the person resides, is employed, or regularly transacts business in person. Subparagraph (B) limits it to the state of the person’s residence, employment, or regular in-person business transaction if the person is a party, a party’s officer, or is commanded to attend a trial and wouldn’t incur substantial expense.

Question 10

Any party may serve no more than how many written interrogatories on any other party?

Answer 10

Any party may serve no more than 25 written interrogatories on any other party.

Interrogatories may NOT be used on nonparties.

Question 11

Interrogatories may relate to

Answer 11

any non-privileged matter that is:

Relevant to any party’s claim or defense in the action;

AND

Proportional to the needs of the case.

Question 12

Interrogatories must be answered

Answer 12

fully and separately under oath by the party to whom they are directed, unless the responding party objects by stating the specific grounds for the objection.

Question 13

The responding party must serve its answers and any objections within

Answer 13

30 days after being served with the interrogatories

Question 14

What is the duty to preserve relevant evidence?

Answer 14

When it can be reasonably anticipated that an action will be filed, all parties have a duty to preserve potentially relevant evidence.

The term “evidence” includes all information, including not just hard copy documents, but all electronically stored information on any medium and in any electronic format.

Question 15

The work-product doctrine protects

Answer 15

materials prepared by an attorney or a client (or their agent) in anticipation of or during litigation from discovery by opposing counsel.

So make a note: does not have to be prepared by the attorney, can be done byt he party in ancitipation of litigation.

Question 16

Work-product materials will NOT be protected from disclosure to opposing counsel IF:

Answer 16

The materials are otherwise unavailable;

There is a substantial need for the materials;

AND

The materials cannot be obtained without undue hardship.

Question 17

As to work-product materials, what is NEVER discoverable? (aka ABSOLUTE IMMUNITY)

Answer 17

A writing that reflects an attorney’s impressions, conclusions, opinions, legal
research, or theories is NEVER discoverable.

Question 18

When a party withholds information she believes is privileged or protected by work- product, the party MUST

Answer 18

make the claim expressly and describe the nature of the documents in a manner that will enable other parties to assess the applicability of the privilege or work-product doctrine.

Question 19

Even if covered by WP immunity, when can discovering party get the materials anyway:

Answer 19

presumption of immunity may be overcome if the discovering party shows that she:
1. “has substantial need for the materials to prepare [her] case”; and
2. “cannot, without undue hardship, obtain [the materials’] substantial equivalent by other means.”

Question 20

Example over overcoming WP Doctrine and making materials discoverable

Answer 20

Example 1: P, an African American male, goes to D’s restaurant, where (P claims) he is insulted on racial grounds by a waiter. W, a customer sitting at another table, witnesses the encounter; there appear to be no other witnesses not affiliated with either party. P sues D for violating a federal statute barring racial discrimination in places of public accommodation. As part of D’s preparation to defend the case, D’s lawyer interviews W and induces W to write and sign a statement about the encounter. P’s lawyer seeks discovery of a copy of the statement. Since the statement was “prepared in anticipation of litigation or for trial . . . for another party or its representative,” the statement may not be discovered unless P can show that: (i) P has “substantial need” for the statement in order to prepare his case and (ii) he “cannot, without undue hardship,” obtain the “substantial equivalent” of the statement by “other means.”

If P’s team has not even tried to conduct their own interview with X, the court will deny P’s discovery request, on the grounds that P has not borne his burden of proving that his team cannot get the substantial equivalent of the statement by other means. But if the team tries to interview W and W refuses to meet with them, then the court probably will conclude that both of the required showings have now been met, in which case the court will order disclosure.

D’s lawyer, who interviewed W and had W prepare and sign the statement, circles a sentence in the statement and hand- writes her own comment on the margin next to that sentence: “Let’s be sure to have W emphasize this point when we call W at trial.” Since the hand-written notation is a “mental impression” or “conclusion” by a party’s attorney, that notation is absolutely immune from discovery, and any court order that the statement be released to P discovery must provide that the notation be redacted.

Question 21

The physical or mental examination of a party can take place

Answer 21

“only on motion for good cause and on notice to all parties and the person to be examined,” and must also specify, among other things, the “scope of the examination, as well asthe person ** * who will perform it .”

If D made a proper motion, then the court would have considered such questions as whether Plaintiff’s condition is in controversy, whether information about the condition can be obtained from other sources, and whether Plaintiff’s right to privacy is out- weighed by the requestor’s need for the information.

Question 22

Can a party petition court to depose W before filing a complaint?

Answer 22

Yes, but only in narrow circumstances, when necessary to preserve testimony that would otherwise be lost.

Cannot be used to discover evidence for purpose of filing a complaint.

And must be super specific in petition as to why you can’t go ahead and file complaint, need to do it now or you’ll be prejudiced, who you need to depose and why, etc.

Question 23

Do the federal discovery rules permit a requesting party to enter “onto designated land or other property possessed or controlled by the responding party,”?

Answer 23

Yes, FRCP 34(a)(2), provided the request is RELEVANT TO THE CLAIM OR DEFENSE of any party to the action and
seeks nonprivileged matter.

Question 24

What is inspection procedure under discovery R’s?

Answer 24

Must seek permission from the court to use the inspection procedure to obtain information relevant to the “subject matter of the action.”

The request to inspect must “describe with reasonable particularity each item or category of items to be inspected,”

Remember: need good cause for physical examination; just need to show relevant to SM of action for inpsection

Question 25

Is insurance coverage dicoverable?

Answer 25

YES.

federal discovery rules make the disclosure of insurance agreements (and monetary limits of the policy) a subject of mandatory initial disclosure without a discovery request . Under the rule, every party must provide “for inspection and copying . . . any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.” FRCP
26(a)(1)(A)(iv).

As with other mandatory initial disclosures, insurance information must be provided without a discovery request at or within fourteen days after the required discovery meeting, see FRCP 26(f), unless otherwise ordered by the court or the parties stipulated to a
different time.

Question 26

“avers”

Answer 26

to assert or declare positively in a pleading