Pretrial Procedure and Discovery Flashcards
What are the general things that must be disclosed in your initial disclosures?
Subject to certain exceptions, must disclose
-> information regarding individuals having discoverable information
-> documents supporting claims/defenses
-> computation and backup of damages
OR
-> relevant insurance agreements for satisfying judgment
What is the standard used during initial disclosures
A party must make its initial disclosures based on the information that is their reasonably available to it.
A party is not excused from making its disclosures because it has not fully investigated the case, because it challenges the sufficient of another party’s disclosures, or because another party has not made its disclosures.
When must initial disclosures be done?
Within 14 days after the parties’’ discovery conference.
What is required to disclose if party is going to use an expert testimony?
Identify expert witnesses and produce expert report subject to certain requirements.
When must expert testimony be disclosed?
At least 90 days before trial or 30 days after disclosure of opposing party’s expert evidence on same subject matter.
What does pretrial evidence encapsulate?
Evidence to be presented at trial other than for impeachment
What pretrial evidence must be disclosed before trial?
When must it be disclosed?
Witness list by testimony or deposition, and documents and exhibits
At least 30 days before trial.
What is an objection to evidence and when must it be made?
An objection regarding pretrial evidence is an objection that a party makes in order to stop the opposing party from presenting such evidence at trial.
It must be done within 14 days after disclosures are made or else waived UNLESS excused by court for good cause or objection is pursuant to relevance rules of the FRE.
What is the duty to preserve under discovery?
Potential litigants have a duty to preserve potentially relevant evidence when litigation is reasonably anticipated/probable; duty includes affirmatively preventing destruction/alteration of evidence.
What is the general scope of discovery?
Discovery is generally permitted with regard to any non privileged matter relevant to any party’s claim or defense in action, proportional to the needs of the case.
Does evidence need to be admissible in order to be discoverable?
Information need not be admissible in evidence to be discoverable.
What bodies of law help determine what is considered privileged information under discovery?
Determined under federal common law for FQ cases, and state law for DJ or SJ.
What is the overall goal of discovery limitations?
Balance discovery and privacy interests.
What are the limitations in discovery?
Generally cannot seek discovery until after discovery conference (aka planning conference).
Discovery sought is unreasonably cumulative or can be obtained from a more convenient or less expensive source.
The party seeking discovery had ample opportunity to obtain information by discovery.
The proposed discovery is not relevant and proportional.
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.
What is spoliation of evidence?
Spoliation of evidence is the negligent or intentional destruction or significant alteration of evidence required for discovery. When litigation is reasonably anticipated, even if it has not yet commenced, potential litigants in possession of potentially relevant evidence have a duty to preserve such evidence. Once a duty to preserve evidence is triggered, the party in possession of the evidence must take reasonable measures to preserve it.
Is there spoliation of evidence when the party is simply following company policy in destroying evidence due to a company rule in a timely manner?
If a party has a policy in place that results in routine operations that may destroy evidence, such as electronically stored information, that party must affirmatively act to prevent the destruction or alteration of such evidence, even if the destruction would typically occur in the regular course of business.
What can spoliation of evidence result in?
Spoliation of evidence results in sanctions if the information cannot be restored/replaced through additional discovery.
What are trial preparation materials?
Materials that include
-> mental impressions
-> conclusions
-> opinion
OR
-> legal theories
OF party’s attorney or other representatives are protected
Can trial preparation materials be discoverable?
Is there any special situation that is an exception to this?
Party may not discover documents and tangible things prepared in anticipation litigation or for trial.
Unless other party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
When is expert material not discoverable and when is it discoverable/
Expert witnesses may be deposed, BUT expert report drafts and disclosure are protected, as well as any communications between the party’s attorney and expert witness.
UNLESS they relate to compensation, facts/data used or assumptions relied upon by expert in forming his opinion.
Is discovery possible for an expert witness retained or specially employed by another party in anticipation of litigation or to prepare for trial but is not excepted to be called as a witness?
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.
What is a discovery conference and when does it take place?
Parties must confer at least 21 days before scheduling conference to consider nature and basis of their claims/defenses and possibility of settlement, automatic discloses, preserving discoverable information, and developing discovery plan; sets the scope and schedule for discovery.
What are the different types of discovery devices?
Oral depositions
interrogatories
requests to produce documents
physical and mental exams
requests for admission
subpoenas
What is an oral deposition?
At what point can an oral deposition take place?
When can a part not conduct an oral deposition?
Written or oral examination of party or witness under oath (nonparty)
Can take place any time after discovery conference and limited to 10 per party (unless showing of good cause to court).
A party may conduct an oral deposition without the court’s leave or the parties’ stipulation unless
-> (1) the deposition exceeds the 10-deposition limit,
-> (2) the deposition is sought before the initial planning conference,
OR
->(3) the deponent was already deposed in the case.