Pretrial Procedure and Discovery

Question 1

Mandatory Disclosures

Answer 1

Exam Tip - Mandatory Disclosures are rarely tested

1. In General

• Designed to streamline discovery
• Means disclosure without having to wait for discovery request

2. Thress Stages

a. Initial Disclosures

• names and addresses of persons with potentially discoverable information
• copies or descriptions of relevant documents or things
• computation of damages claimed
• applicable insurance agreements

b.Disclosure of Expert Witnesses

• names of expert witnesses who will be called at trial
• qualifications, publications, opinions, information on which they will base their opinions, other cases in which they have testified, and compensation

c. Pretrial Disclosures

• 30 days before trial
• list of witnesses and exhibits
• any objections must be made within 14 days after disclosure or they are waived unless excused by the court for good cause

OHIO - does not have required initial disclosures

Question 2

Scope of Discovery - List

Answer 2

1. In General
2. Exceptions to Discovery
3. Experts
4. Protective Orders

Question 3

Scope of Discovery - 1. In General

Answer 3

Scope of Discovery - 1. In General

• General Rule - relevance
• Rule - you can discover anything that might be admissible at trial OR that might lead to something that might be admissible at trial
• Key Point - scope of discovery is not limited to admissible evidence
  
  • e.g., hearsay is NOT a valid objection to discovery - might lead to other evidence that is admissible
• Applies to all 6 forms

Question 4

Scope of Discovery - 2. Exceptions to Discovery

Answer 4

Scope of Discovery - 2. Exceptions to Discovery

a. Evidentiary privilege

• anything covered by a true evidentiary priviliege (e.g., atty client priv) is NOT discoverable

b. Work Product Rule (high priority topic for bar exam)

• Atty work product rule protects:
  
  • documents and things (not information)
  • prepared in anticipation of litigation
    
    • documents prepared before the cause of action arose are NOT protected by the work product rule
  • by or for another party or her representative
• Creates a qualified immunity from discovery
  
  • can be overcome if the party seeking discovery shows:
    
    • need for the document or thing; and
    • that the information cannot be obtained elsewhere
• Notwithstanding the above, you can always get a copy of your own statements whether you are a party or a mere witness, but you can never discover the mental impressions of an attorney

Question 5

Scope of Discovery - 3. Experts

Answer 5

Scope of Discovery - 3. Experts

• Distinction between experts who will be called as a witness at trial and those who will not
  
  • Principle - if expert is going to be called, the other side, in fairness, has to prepare for cross-examination
  • other side can discover the expert’s report
    
    • draft reports are generally NOT discoverable
  • Communications between counsel and expert are generally NOT discoverable
    
    • can discover the amount of compensation, and the facts, data, and assumptions provided to the expert by the lawyer
• if expert is NOT going to be called as a witness, no discovery absent exceptional circumstances

Question 6

Scope of Discovery - 4. Protective Orders

Answer 6

Scope of Discovery - 4. Protective Orders

• Court orders to compel or restrain discovery
• for good cause shown, court can basically do anything it wants that is reasonable

Question 7

Discovery Devices - List

Answer 7

1. Oral Deposition
2. Written Deposition
3. Interrogatories
4. Disovery and Inspection of Documents and Land
5. Physical and Mental Examination
6. Request for Admission

Question 8

Discovery Devices - 1. Oral Deposition

Answer 8

(Important)

• Questions are asked and answered orally and under oath
• Limited to 10 depositions, unless the court allows more o
• Each is limited to one day of 7 hours, unless the court allows more.
• Any kind of notice suffices for the deposition of a party; but a deposition of a nonparty witness requires a subpoena, personal service. witness fee and mileage.???
• A subpoena duces tecum requires the deponent to bring specified documents or things.
• Can be taken at any time after the party has made mandatory disclosures
• May be taken before any notary public

Question 9

Discovery Devices - 2. Written Deposition

Answer 9

• Questions are delivered to an officer who asks orally the questions written down beforehand
• rarely used

Question 10

Discovery Devices - 3. Interrogatories

Answer 10

• Questions asked in writing to be answered under oath in writing
• May be used only against a party
• Limited to 25 interrogatories, unless the court allows more
• Responses required within 30 days

OHIO - 40

Question 11

Discovery Devices - 4. Discovery + Inspection of Documents + Land

Answer 11

• Called a request to produce and permit inspection
• Applies only to documents and land under the control of a ___________________________
• The thing to be produced and inspected must be described with particularity.
• Response is due within 30 days.

Question 12

Discovery Devices - 5. Physical + Mental Examination

Answer 12

• Can be ordered only against a party
• Only permitted for a condition in controvery
• Only for good cause shown

Question 13

Discovery Devices - 6. Request for Admission

Answer 13

• Used to streamline the lawsuit
• Failure to respond within 30 days is an admission.
• Certification: Responses to requests for admissions (and all other documents) must be signed by the attorney of record.
  
  • The signature certifies that there is a reasonable basis and good faith for denying the request.
• Admissions have no no preclusive effect.
  
  • Only binding in the current lawsuit
  • Cannot be used in any future proceeding

Question 14

Use of Depositions

Answer 14

• Discovery does not equal admissibility.
• Deposition of an adverse party is admissible as an admission against interest.
• Deposition of a witness can be used to impeach.
• Deposition of a witness who does NOT testify can be used if the witness is dead or beyond the court’s subpoena power or otherwise unavailable.
  
  • Can also be used if the witness is more than 100 miles from the place of trial.

Question 15

Enforcement Sanctions

Answer 15

• The court can immediately impose sanctions in three instances of complete default:
  1. Failure to attend one’s own deposition;
  2. Failure to respond to interrogatory; and
  3. Failure to respond to a request for documents or things.
• Otherwise, the court should first issue an order to compel before imposing sanctions.

Question 16

Pre-Trial Conference

Answer 16

• Must be attended by the attorneys who will conduct the trial
• Must file a pretrial statement detailing
  
  • Claims and defenses, itemization of damages, requests for stipulations and admissions, list of all witnesses and exhibits, etc.
• Failure to comply usually means that the attorney pays the costs and the other side’s attorney’s fees

Question 17

Termination Without Trial - List

Answer 17

1. Devices
2. Voluntary Dismissal or Dismissal without Prejudice
3. Involuntary Dismissal or Dismissal with Prejudice
4. Summary Judgment (SJ)

Question 18

Termination Without Trial - 1. Devices

Answer 18

• Judgment on the Pleadings;
  
  • Rarely used
  • Appropriate only where the pleadings agree on all of the facts
• Default judgment;
• Voluntary dismissal (dismissal without prejudice);
• Involuntary dismissal (dismissal with prejudice); and
• Sumamry judgment.

Question 19

Termination Without Trial - 2. Voluntary Dismissal or Dismissal w/o Prej

Answer 19

• “Without prejudice” - plaintiff whose claim has been dismissed can bring that claim again in a new lawsuit.
• Plaintiff has a right to a voluntary dismissal once, at any time prior to the defendant serving an answer or a motion for summary judgment.
  
  • The defendant’s motion to dismiss (e.g., for lack of jurisdiction or improper venue) does NOT cut off the right to voluntary dismissal.
• After defendant has filed an answer or motion for summary judgment, or the plaintiff has already voluntarily dismissed once, plaintiff may seek a dismissal without prejudice on leave of court.

Question 20

Termination Without Trial - 3. Involuntary Dismissal or Dismissal w/ Prej

Answer 20

• When imposed for lack of jurisdiction, improper venue, or failure to join a necessary party, involuntary dismissal is without prejudice.
• All other cases - involuntary dismissal is with prejudice.
  
  • Dismissal with prejudice is an adjudication on the merits.
  • Given full res judica effect (preclusive)
• May be imposed for plaintiff’s failure to prosecute or for failure to comply with any court order.
• Standard for appellate review: abuse of discretion

Question 21

Termination Without Trial - 4. Summary Judgment

Answer 21

Exam Tip - most important means of termination for exam

• Distinguish from a motion to dismiss for failure to state a claim on which relief can be granted (12(b)(6)):
  
  • Only tests the legal sufficiency of the plaintiff’s claim
• Summary judgment can be used to test the facts AND the law.
• “Partial summary judgment” - SJ be granted only for certain parties, certain claims/defenses, or certain issues.
• Standard: there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
  
  • “No genuine dispute” - no reasonable juror could find the other way.
• May be sought by either side
• Must be supported or opposed by particular materials in the record, such as:
  
  • depositions
  • answers to interrogatories
  • Documents
  • Affidavits
  • Stipulations
• Materials in the record must generally be sworn statements.
  
  • Pleadings are generally NOT sworn statements.
  • Mere assertion or denial of a fact in a pleading does NOT create a genuine dispute.
• Sworn statement - based on personal knowledge.

Example 13: Ethel sues Fred for injuries in an automobile accident and then moves for summary judgment. Ethel supports her motion with her affidavit, describing the accident. Fred cannot oppose summary judgment simply by relying on the denials in his answer nor by saying that he will call witnesses who will testify in a certain way. Fred must file a sworn statement based on personal knowledge that raises a genuine dispute as to a material fact. For example, Fred could file an affidavit asserting that he was in Philadelphia at the time of the accident.