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.