Pretrial Procedure and Discovery

Question 1

What are the general things that must be disclosed in your initial disclosures?

Answer 1

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

Question 2

What is the standard used during initial disclosures

Answer 2

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.

Question 3

When must initial disclosures be done?

Answer 3

Within 14 days after the parties’’ discovery conference.

Question 4

What is required to disclose if party is going to use an expert testimony?

Answer 4

Identify expert witnesses and produce expert report subject to certain requirements.

Question 5

When must expert testimony be disclosed?

Answer 5

At least 90 days before trial or 30 days after disclosure of opposing party’s expert evidence on same subject matter.

Question 6

What does pretrial evidence encapsulate?

Answer 6

Evidence to be presented at trial other than for impeachment

Question 7

What pretrial evidence must be disclosed before trial?

When must it be disclosed?

Answer 7

Witness list by testimony or deposition, and documents and exhibits

At least 30 days before trial.

Question 8

What is an objection to evidence and when must it be made?

Answer 8

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.

Question 9

What is the duty to preserve under discovery?

Answer 9

Potential litigants have a duty to preserve potentially relevant evidence when litigation is reasonably anticipated/probable; duty includes affirmatively preventing destruction/alteration of evidence.

Question 10

What is the general scope of discovery?

Answer 10

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.

Question 11

Does evidence need to be admissible in order to be discoverable?

Answer 11

Information need not be admissible in evidence to be discoverable.

Question 12

What bodies of law help determine what is considered privileged information under discovery?

Answer 12

Determined under federal common law for FQ cases, and state law for DJ or SJ.

Question 13

What is the overall goal of discovery limitations?

Answer 13

Balance discovery and privacy interests.

Question 14

What are the limitations in discovery?

Answer 14

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.

Question 15

What is spoliation of evidence?

Answer 15

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.

Question 16

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?

Answer 16

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.

Question 17

What can spoliation of evidence result in?

Answer 17

Spoliation of evidence results in sanctions if the information cannot be restored/replaced through additional discovery.

Question 18

What are trial preparation materials?

Answer 18

Materials that include
-> mental impressions
-> conclusions
-> opinion
OR
-> legal theories
OF party’s attorney or other representatives are protected

Question 19

Can trial preparation materials be discoverable?

Is there any special situation that is an exception to this?

Answer 19

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.

Question 20

When is expert material not discoverable and when is it discoverable/

Answer 20

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.

Question 21

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?

Answer 21

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.

Question 22

What is a discovery conference and when does it take place?

Answer 22

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.

Question 23

What are the different types of discovery devices?

Answer 23

Oral depositions
interrogatories
requests to produce documents
physical and mental exams
requests for admission
subpoenas

Question 24

What is an oral deposition?

At what point can an oral deposition take place?

When can a part not conduct an oral deposition?

Answer 24

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.

Question 25

What is an interrogatory?

Answer 25

25 written interrogatories per party relating to non privileged matters relevant to any party’s claim/defense and proportional to the needs of the case.

Must be fully and separately answered under oath unless timely objected to with specificity.

Question 26

Against who must an interrogatory be asserted?

Can it be served against a witness the party will call up to testify?

Answer 26

Against the party and only the party.

Cannot be served against nonparties, which can include witnesses even if they will testify.

Question 27

What are requests to produce documents/

Answer 27

A party has 30 days from being served with request or 30 days from the parties’ first rule 26(f) conference (discovery conference), if the request was served prior to that conference to respond

Question 28

What are physical/mental exams?

Answer 28

The court may order person to submit to physical/mental exam if physical/mental condition is in controversy.

Question 29

What are requests for admission?

Answer 29

A party can serve written request for admission of any relevant, non privileged matters relating to statements or opinions of fact or to application of law to fact, which once admitted is conclusively established.

Question 30

What are subpoenas?

Answer 30

Issued from the court where the action is pending, used to command a nonparty to take action (e.g. attend a trial, testify, request for production)

Question 31

What are three different types of enforcement mechanisms under discovery?

Answer 31

Motion to compel
Sanctions
Restore electronically stored information

Question 32

What is a motion to compel?

Answer 32

Party can move to compel disclosure or discovery against a party failing to make automatic disclosures, or to respond to discovery requests (including evasive or incomplete disclosure)

Question 33

What are sanctions?

Answer 33

If a party fails to obey a court order regarding discovery, the court may impose sanctions subject to the abuse-of-discretion standard.

Question 34

What is the enforcement mechanism regarding electronically stored information?

Answer 34

When retrieval of the information is possible
-> even if typically considered inaccessible due to the cost of retrieval
-> a court may order it and assign the costs to the party who destroyed the evidence
-> no further sanctions may be imposed.

If information that should have been preserved is lost because a party failed to take reasonable steps to preserve it and it cannot be restored or replaced,
-> the court may order measures to cure the prejudice

If the party acted with intent to deprive the another party of the information, the court may
-> presume that the information was not favorable to the party that destroyed the information
OR
-> instruct the jury that it may or must presume that the information was unfavorable to the party
OR
-> dismiss the action or enter a default judgment

Question 35

What are the two types of case management conferences? What does each do?

Answer 35

Pretrial conference
-> the court may direct counsel and unrepresented parties to appear for a pretrial conferences for purposes such as expediting disposition of the action, effective case management, and facilitating settlement

Scheduling conference and order
-> limits the time to join other parties, amend pleadings, complete discovery, and file motions

Question 36

When are there sanctions under the case management conferences and orders?

Answer 36

A party who fails to appear or participate in a pretrial or scheduling conference, or fails to obey a resulting order, may be subject to sanctions or ordered to pay reasonable expenses

Question 37

What are the four types of adjudication without trial?

Answer 37

Dismissal of complaint, counterclaim, cross-claim, or third-party claim

Default and default judgment

Summary judgment

Declaratory judgment

Question 38

What is a voluntary dismissal?

Answer 38

Voluntary dismissal
-> by filing notice or by stipulation - P can dismiss action without leave of court any time before opposing party serves answer or motion for summary judgment, OR by stipulation of all parties who have appeared; dismissal will usually be without prejudice, but the “two-dismissal” rule applies

-> by court order - decision to dismiss without prejudice is left to court’s discretion *usually without prejudice but not a matter of right); court considers whether dismissal without prejudice unfairly affects D; “two-dismissal” rule generally not implicated

Question 39

What is the two-dismissal rule? When is it implicated?

Answer 39

If a plaintiff voluntarily dismissed a prior state or federal action based on the same claim by filing a notice of dismissal, then a subsequent dismissal of the same claim by notice will be with prejudice.
-> You can dismiss twice, but the 2nd time you dismiss will be a dismissal with prejudice meaning you can’t bring the claim a third time.

Implicated in a voluntary dismissal by filing notice or stipulation from P.

Not implicated in voluntary dismissal by court order.

Question 40

What is an involuntary dismissal?

Answer 40

When P fails to prosecute or comply with the Rules or court order; D can move to dismiss, which if granted is with prejudice and operates as an adjudication on the merits.

Question 41

What is a default and default judgment?

Answer 41

Default - when a party has failed to plead or otherwise defend an action, may be set aside for good cause
-> Aka party has failed to show-up to defend themselves.

Default judgment - once a default is entered, P may seek default judgment

Question 42

Who is able to enter a default judgment?

Answer 42

The court or the clerk of the court.

Question 43

When must a clerk enter a default judgment against another party?

Answer 43

The clerk must enter a default judgment when:
-> the plaintiff’s claim is for a sum certain (i.e., a specified or set amount) OR a sum that can be made certain by calculation
-> the plaintiff’s request for default judgment includes an affidavit establishing the amount due
-> the defendant failed to appear—i.e., did not file a motion or otherwise act before the court—
AND
-> the defendant is not legally incompetent or a minor.

Question 44

What is the goal of a summary judgment?

Answer 44

Prove
-> there is no genuine dispute of material fact (i.e., a fact of consequence to the outcome of the case)
AND
-> that the evidence is legally insufficient for a reasonable jury to find in the nonmovant’s favor, so the movant is entitled to judgment as a matter of law.

Question 45

What is the standard used in a summary judgment? How will the court construe the evidence?

Answer 45

No genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law; court will construe all evidence in the light most favorable to the nonmoving party and resolve all doubts in favor of the nonmoving party.

Question 46

What is the burden of proof form the movant party in a summary judgment? What must/can the non-movant party do?

Answer 46

The movant has burden of persuasion to show prima facia case before the burden shifts to the opposing party to set forth specific evidence showing the existence of a genuine issue of fact.

Question 47

When can a summary judgment be filed?

Answer 47

May be filed anytime until 30 days after close of all discovery; nonmoving generally must be given sufficient opportunity to obtain discovery

Question 48

What is a declaratory judgment?

Answer 48

The court tells the parties their rights and responsibilities without awarding damages or ordering parties to do (or refrain sfrom doing) anything