Pretrial procedure and discovery

Question 1

Mandatory disclosures

Answer 1

1. Initial disclosures
   • Generally—subject to certain exceptions, must disclose information regarding individuals having discoverable information, documents supporting claims/defenses, computation and backup of damages, or relevant insurance agreement for satisfying judgment
   • Standard—information reasonably available to it, and party not excused for not fully investigating case, challenges to insufficiency of another party’s disclosures, or because another party failed to disclose
   • Timing—within 14 days after the parties’ discovery conference
2. Expert testimony
   • Generally—identify expert witnesses and produce expert report subject to certain requirements
   • Timing—at least 90 days before trial or 30 days after disclosure of opposing party’s expert evidence on same subject matter
3. Pretrial (evidence to be presented at trial other than for impeachment)
   • Generally—witness list by testimony or deposition, and documents and exhibits
   • Timing—at least 30 days before trial
   • Objections—within 14 days after disclosures are made or else waived unless excused by court for good cause or pursuant to relevance rules of the FRE

Question 2

Discovery scope and limits

Answer 2

1. Scope
   • 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
   • Relevance—information need not be admissible in evidence to be discoverable
   • Privileged information (not discoverable)—determined under federal common law for FQ cases, and state law for DJ or SJ
2. Limitations (balance discovery and privacy interests)
   • 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
3. Trial preparation materials
   • Party may not discover documents and tangible things prepared in anticipation of 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
   • Mental impressions, conclusions, opinions, or legal theories of party’s attorney or other representative are protected
4. Experts
   • 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 3

Discovery conference

Answer 3

Parties must confer at least 21 days before scheduling conference to consider nature and basis of their claims/defenses and possibility of settlement, automatic disclosures, preserving discoverable information, and developing discovery plan

Question 4

Discovery devices

Answer 4

1. Oral depositions—can take place anytime after mandatory initial disclosure and limited to 10 per party (unless showing of good cause to court)
2. Interrogatories
   • 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
3. Requests to produce documents—a party has 30 days from being served with request or 30 days from the parties’ first rule 26(f) conference, if the request was served prior to that conference to respond
4. Physical/mental exams—the court may order person to submit to physical/mental exam if physical/mental condition is in controversy
5. Requests for admission—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 5

Enforcement

Answer 5

1. Motion to compel—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)
2. Sanctions—if a party fails to obey a court order regarding discovery, the court may impose sanctions subject to the abuse of discretion standard
3. Electronically stored information—if information that should have been preserved is lost because a party failed to take reasonable steps to preserve it, the court may order measures to cure the prejudice or, if the party acted with the intent to deprive the another party of the information, 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 6

Pretrial conferences

Answer 6

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

Question 7

Adjudication without trial

Answer 7

1. Dismissal—of complaint, counterclaim, cross-claim, or third-party claim
   • Voluntary—can be filed without prejudice (unless same claim dismissed by P in prior action) any time before opposing party serves answer, motion for summary judgment, or dismissal
   • Involuntary—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
2. Default judgment—when a party fails to defend an action, P may seek default judgment, which can be set aside for good cause by the court, depending upon whether movant’s failure to act was willful, setting aside default would prejudice nonmoving party, and the movant presented a meritorious claim
3. Summary judgment
   • Standard—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 nonmoving party
   • Burden of proof—the movant has burden of persuasion to show prima facie case before the burden shifts to the opposing party to set forth specific evidence showing the existence of a genuine issue of fact
   • Timing—may be filed anytime until 30 days after close of all discovery
4. Declaratory judgment—the court tells the parties their rights and responsibilities without awarding damages or ordering parties to do (or refrain from doing) anything