Pretrial Procedure and Discovery Flashcards
What are the three types of mandatory disclosures?
(i) initial disclosures,
(ii) disclosures of expert testimony 90 days before trial, and
(iii) pretrial disclosures 30 days before trial
What generally must be provided in the initial disclosures?
i) The name and, if known, address and telephone number of each individual likely to have discoverable information, along with the subjects of that information that the disclosing party may use to support its claims or defenses, unless the use would be solely for purposes of impeachment;
ii) A copy, or a description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
iii) A computation of each category of damages claimed by the disclosing party, who must also make available for inspection and copying the documents or other evidentiary material on which each computation is based, including materials bearing on the nature and extent of injury, unless privileged or protected from disclosure; and
iv) 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.
What are the exceptions to the initial disclosures?
i) Actions for review on an administrative record;
ii) Forfeiture actions in rem arising from a federal statute;
iii) Petitions for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;
iv) Actions brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;
v) Actions to enforce or quash an administrative summons or subpoena;
vi) Actions by the United States to recover benefit payments;
vii) Actions by the United States to collect on a student loan guaranteed by the United States;
viii) Proceedings that are ancillary to proceedings in another court; and
ix) Actions to enforce an arbitration award.
When must initial disclosures be made?
At or within 14 days after the parties’ Rule 26(f) conference, unless a different time is set by stipulation or court order.
What generally must be provided for an expert witness disclosure?
The identities of persons who may testify as expert witnesses and to produce an expert report for each such witness. The expert report must be prepared and signed by the expert and contain:
i) A complete statement of and basis for all opinions to be expressed;
ii) The facts or data considered by the expert in forming the opinions;
iii) Any exhibits used as support for or as a summary of the opinions;
iv) The qualifications of the expert;
v) A listing of all publications authored by the expert in the past 10 years;
vi) The expert’s compensation; and
vii) A list of all other cases in which the expert has testified at trial or deposition in the past four years.
When must an expert testimony disclosure be made?
A party must make these disclosures at the times and in the sequence that the court orders, but absent a stipulation or court order, the disclosures must be made at least 90 days before the date set for trial or for the case to be ready for trial.
If the evidence is intended solely to contradict or rebut the opposing party’s expert evidence on the same subject matter, then disclosure must be made within 30 days after the other party’s disclosure.
What is required for the pretrial disclosures?
They must file with the court:
i) The name and, if not previously provided, the address and telephone number of each witness, separately identifying those the party expects to present and those it may call if the need arises;
ii) The designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and
iii) An identification of each document or other exhibit, including summaries of other evidence, separately identifying those items the party expects to offer and those it may offer if the need arises.
(1) When must pretrial disclosures be made? (2) When must objections be made?
- At least 30 days before trial.
- Within 14 days after the disclosures are made, unless the court sets a different time, a party may serve and promptly file objections to the use of the depositions at trial and to the admissibility of disclosed documents and exhibits. If an objection is not made at this point, then it will be waived, unless excused by the court for good cause or unless the objection relates to relevancy, prejudice, or confusion
How many interrogatories may a party serve on another party?
Pursuant to Rule 33(a), any party may serve no more than 25 written interrogatories on any other party.
Only can be served on PARTIES.
How much time does a party have to respond to interrogatories?
The responding party must serve its answers and any objections within 30 days after being served with the interrogatories.
Note: The court may order or the parties may stipulate to a shorter or longer time.
What is the scope of discovery?
Discovery is generally permitted with regard to any non privileged matter relevant to any party’s claim or defense in the action and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issue, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
When can discovery be requested?
In general, a party may not seek discovery until after the discovery conference pursuant to Rule 26(f).
A party may seek discovery before the discovery conference if it is ordered by the court, stipulated by the parties, or authorized by a specific rule, or if the proceeding is exempt from initial disclosures. Rule 26(d).
What are the limitations on discovery?
On motion or on its own, the court is required to limit the frequency or extent of discovery otherwise allowed by the rules if it determines that:
i) The discovery sought is unreasonably cumulative or can be obtained from some other source that is more convenient or less expensive;
ii) The party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
iii) The proposed discovery is outside the scope permitted by Rule 26(b)(1) (not relevant and proportional).
Note: A party is not required to provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. If challenged, the party will have the burden to show the undue burden and cost. Even if undue burden and cost is shown, the court may still order such discovery if the requesting party shows good cause. Moreover, the requesting party may specify the form in which the documents should be produced.
Is a party is entitled to depose any expert witness of an opposing party whose opinions may be presented at trial?
Yes.
Note: If the expert was retained or specially employed by another party in anticipation of litigation or to prepare for trial but is not expected to be called as a witness, then discovery is permitted only on a showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
- Exception: report of an examining physician
What are the two types of depositions?
(i) oral depositions, which are common to almost all litigation in federal court
(ii) written depositions, which are rarely used.
