Pretrial Procedure + Discovery Flashcards
Mandatory disclosures
(1) Initial disclosures
(2) Expert testimony
(3) Pretrial disclosures
Initial disclosures
Must disclose info regarding individuals having discoverable info, docs supporting claims/defenses, computation of damages, etc.
Timing: generally within 14 days after parties’ discovery conference.
Expert testimony disclosures
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.
Pretrial disclosures
Evidence to be presented at trial other than for impeachment. Generally witness list and docs/exhibitions.
Timing: at least 30 days before trial.
Objections within 14 days after disclosures are made or else waived.
Duty to preserve
Potential litigants have duty to preserve potentially relevant evidence when litigation is reasonably anticipated/probable.
Duty includes affirmatively preventing destruction/alteration of evidence.
Scope of discovery
Discovery generally permitted with regard to any nonprivileged matter relevant to any party’s claim or defense in action, proportional to needs of the case.
Info need not be admissible in evidence to be discoverable.
Discovery limitations
Generally cannot seek discovery until after discovery conference.
Must not be unreasonably cumulative or able to be obtained from a more convenient/cheaper source.
Not required to provide ESI from sources that are not reasonably accessible due to burden or cost.
Spoliation of evidence
Destroying evidence. Results in sanctions if the info cannot be restored/replaced.
Trial preparation materials
Party may not discover documents and tangible things prepared in anticipation of litigation or for trial UNLESS substantial need and cannot obtain elsewhere.
Mental impressions, conclusions, or opinion of attorney are NEVER discoverable.
Expert report disclosures scope
Expert witnesses may be deposed, but expert report drafts and disclosures are protected along with facts/data used or assumptions relied upon by expert.
Discovery conference
Must confer at least 21 days before scheduling conference to consider nature and basis of their claims/defenses and possible settlement.
Sets the scope and schedule for discovery.
Discovery devices
(1) Oral depositions
(2) Interrogatories
(3) Requests to produce documents
(4) Physical/mental exams
(5) Requests for admission
(6) Subpoenas
Interrogatory limit
25 written interrogatories per party.
Motion to compel discovery
Party can move to compel disclosure against a party failing to make automatic disclosures, or to respond to discovery requests.
Sanctions for discovery enforcement
If a party fails to obey a court order regarding discovery, the court may impose sanctions subject to the abuse-of-discretion standard.
Lost/destroyed ESI
If party failed to take reasonable steps to preserve ESI, court may order measures to cure prejudice or, if other party intended to deprive, instruct the jury to presume the info was unfavorable to the party.
May also dismiss the action or enter default judgment.
Voluntary dismissal by P
P can dismiss action without leave of court any time before opposing party serves answer or motion for summary judgment.
Dismissal usually without prejudice, but “two dismissal” rule applies.
Voluntary dismissal by court order
Dismissal with or without prejudice at court’s discretion.
“Two-dismissal” rule generally not implicated.
Involuntary dismissal
When P fails to prosecute or comply with FRCP or court order, D can move to dismiss.
If granted, dismissal is with prejudice and acts as adjudication on the merits.
Default
When a party has failed to plead or otherwise defend an action.
May be set aside for good cause.
Once a default is entered, P may seek default judgment.
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 light most favorable to nonmoving party.
Summary judgment burden of proof
Movant has burden of persuasion to show prima facie case before burden shifts to the opposing party to set forth specific evidence showing the existence of a genuine issue of fact.
Summary judgment timing
May be filed anytime until 30 days after close of all discovery.
Nonmovant must be given sufficient opportunity to obtain discovery.
Declaratory judgment
Court tells the parties their rights and responsibilities without awarding damages or ordering parties to do anything.
