Pretrial Procedures Flashcards
What is Ordinary work product, and is it discoverable?
Ordinary work product is any material prepared by or for an attorney in anticipation of lit, that contains factual info related to the case.
These materials are not discoverable, unless the req. party shows that is has sub. need for the materials and cannot obtain the info without undue hardship.
What is opinion work product? Is it discoverable?
Materials created in anticipation of lit. that contain attorney’s mental impressions, conclusions, opinions or legal theories.
Not discoverable unless, material concerns attorney’s alleged fraud/illegal conduct. This is rare!
A preliminary injunction can bind which people, who receive actual notice?
- the parties
- the parties officers, agents, employees, and attorneys
AND - any person in active concert or participation w/ the aforementioned parties
Two-dismissal rule on voluntary dismissal
A voluntary dismissal of a second action operates as an adjudication on the merits when the P voluntarily dismissed:
1. the first action in federal or state court without a court order
AND
2. the second action based on the same claim in federal court by filing a notice of dismissal.
motion to compel definition
define
A nonparty may intervene either (2 ways)
- as a matter of right, if the nonparty’s interest is inadequately represented and a decision may impair the nonparty’a ability to protect that interest.
OR
- permissively, if the nonparty’s claim or defense shares a common question of law or fact with the main action
A court will grant a protective order if the movant (2 things)
- shows good cause for the order
AND - certifies the he/she conferred or attempted to confer in good faith with the party seeking discovery.
Timeline in response to motion to compel the production of ESI ?
In a response to a motion to compel ESI the producing party must show that the ESI is not reasonably accessible due to undue burden or cost.
If this is shown the court will order the production of the ESI only if the requesting party demonstrates good cause for the production.
What are discovery stipulations and what can they be used to do?
Discovery stipulations between the parties are an efficient way to modify discovery rules and procedures.
They can be used to:
- expand the limits imposed by discovery rules,
- extend the time to complete particular discovery requests,
Or - limit the scope of discovery.
A party may not seek discovery until what has occurred?
A party may not seek discovery until the parties have held an initial planing conference - ie, a meeting where the parties arrange for initial disclosures and prepare a plan for discovery.
If a discovery request is submitted before the conference is held, the court would likely grant a protective order.
Permissive joinder of parties is appropriate when:
- the claims asserted by or against the joined parties arise from the same transaction, occurrence, or series thereof,
AND - a common question of law or fact will arise among them.
A court must limit the frequency or extent of discovery when the discovery sought is (4)
- unreasonably cumulative or duplicative,
- can be obtained from a more convenient, less burdensome, or less expensive source,
- contains info. that the party has had time to obtain by other means,
OR - is outside the scope of discovery.
Impleader basis to be added?
Impleader allows a D to add a nonparty who may be liable to the D for all or part of the P’s claim. (derivative liability.)
A party must disclose the identity of an expert witness expected to :
testify at trail and provide a written report or summary to the opposing party at least 90 days before trial.
A P may respond to a D’s answer by either filling (2)
- an answer if the D asserted a counterclaim OR
- a reply if the court orders it.
