PreTrial Procedure and Discovery Flashcards
What are the types of Mandatory Disclosure
Initial Disclosure
Expert Testimony
Pretrial (evidence to be presented at trial other than impeachment)
Initial Disclosure Req. & Standard
must disclosure individuals names who have discoverable information, documents supporting claims/defenses
Standard: reasonable available, party is not excused because they did not fully investigate the case
What is the timing requirement for initial disclosure
Generally made with 14 days AFTER discovery conference
What is Req. for Expert Testimony?
Must Id and produce expert report within 90 days before trial or 30 days after disclosure of oppsosing party’s expert witness
Pretrial Disclosure Req.
witness list by testimony or deposition & documents and exhibits
at least 30 days before trial
When can objections occur for pretrial evidndece?
within 14 days of disclosure or else waived
What is duty for discovery?
duty to preserve potentially relevant evidence
duty includes affirmatively preventing destruction/alteration of evidence
Scope of Discovery
promotional to the needs of the case
doesn’t need to be relevant to be discoverable
privilege information is not discoverable determined under common law for FQ and state for DJ or SJ
Under what circumstances can discovery be limited?
- discovery is not relevant or proportional
party not required to provide discovery for - electronically stored information the the other party can reaonsable access
- party cant discover the other party trial prep materials
Requirements for discovery conference
parties meet 21 days before conference to consider nature and basis of claims or defense & set scope of discovery
What are discovery devices
oral depositions
interrogatories
request to produce documents
physical and mental exams
request for admission
subpoenas
Oral Depositions
can take place any time after discovery conference and limited to 10 per party
Interrogatories
25 written interrogatories per party relating to non-privilege matters
must be fully and separately answered
When do you have to produce documents after Request to Produce has been made?
30 days to produce after request is made
When are physical or mental exams permitted/
the court will order if condition is in controversy
Ways to enforce discovery
motion to compel
sanctions (fails to obey may be punished)
electronically stored information
What does dismissal apply to?
complaint, counterclaim, cross-claim, 3rd party claims
Voluntary Dismissal
filing notice by stipulation or by court order
What occurs when you file notice by stipulation for a dismissal
P can move to dismiss any time before D seeks summary judgment or D serves answer
done without prejudice
What occurs then dismissal is by court order
decision to dismiss with or without prejudice is within the courts discretion
What is involuntary dismissal and what are the affects?
P fails to prosecute or comply with the rules or court order, D moves to dismiss
if granted with prejudice counts as adjudication on merits
What is default judgement and what are the consequences?
when a party has failed to please or otherwise defend the action, may be set aside for good cause
What is standard for summary judgement?
no genuine dispute of material fact & movent is entitled to judgement as a matter of law
court looks to evidence in favor of nonmoving party
What is burden of proof for summary judgement?
burden of persuasion to show prima facie case before the burden shifts to opposing party to show there is a genuine dispute of fact
When must summary judgement be filled?
anytime until 30 days after close of all discovery
What are exception if you fail to make expert disclosure in 90 days?
if harmless or substantial justification
When is voluntary dismissal appropriate?
p may dismiss without consent if timely prior to service of answer or SMJD
Service Requirement defendant- individual
State rules (court sits or service is made)
actual delivery deliver process to D personally or to agent authorized to recieve service
served D dwelling with a resident of suitable age and discretion
When is service proper when US is party to the case?
must serve US attorney general as well as US Attorney for the district that the action is filled
Where do you properly provide service?
To the plaintiffs attorney within the appropriate time frame, it must be filled with the clerk within a reasonabale time after service
Is TRO interlocatory order?
yes which means that appralable unless time frame exceeds the time period beyond Rule 65
Who is a proper individual that may serve the defendant?
anyone who is not party to case
