Rule 26, 28-37 Discovery Flashcards
Parties must confer as soon as practicable and at least ___ days before the scheduling conference
21
What type of plan must the parties develop?
A discovery plan
What information is included in the automatic disclosures under Rule 26(a)?
Parties must make automatic disclosures under 26(a) regarding information about witnesses and materials the party intends to use at trial
Under what cirsumstance may a court allow discovery before the 26f conference?
If the party can show good cause
What rule governs expedited discovery requests?
Rule 26d
Under Rule26e, What is a party required to do if it learns that something is wrong or incorrect?
Under Rule 26e, The party is required to supplement the disclosure
Under 26b, Discoverable information is information that is _____
(2 requirements)
- relevant to the claims or defenses
2. proportional to the needs of the case
True/ False: The information sought has to be admissible
False
Which rule governs the limits on discovery?
Rule 26c
What are some of the ways discovery can be limited?
Discovery can be limited by protective orders or if a privilege exists
What are some of the privileges that would limit discovery?
Work product privilege Attny'Client privilege Spousal Privilege 5th amendment Privilege Doctor/Patient privilege
What are the 5 discovery tools?
- oral (rule 30 &32) or written depositions (Rule 31)
- interrogatories (Rule 33)
- request to produce documents (Rule 34)
- Physical and mental examination (Rule 35)
- Requests for admission (Rule 36)
Define deposition
A deposition is when a deponent testifies orally under oath to answer questions asked by lawyers
Can depositions be taken of parties or nonparties?
Both
Define interrogatory
Interrogatories are written questions answered in writing under oath.
Can interrogatories be sent to parties or non parties?
ONLY to parties
How many days does a party have to answer an interrogatory?
30 days
What must a party show for a medical or physical exam under Rule 35?
The party must show that the physical or medical condition is in controversy and the party must show good cause
True/False: Physical and medical exams can only be court ordered?
True
Can physical or medical exams be ordered to parties or nonparties?
Only to parties or someone in the party’s custody or control
What is the limit on interrogatories?
No more than 25, including all discreet subparts
Define request for admission
A request for admission is a request to admit or deny any discoverable matter
Can a request for admission be sent to parties or non parties?
ONLY to parties
Define work product
Work product is materials prepared in anticipation of litgation
Is work product discoverable?
Usually no. Unless a party can show
- substantial need to resolve the case BECAUSE ____
- Undue hardship BECAUSE _____
- that the information is not otherwise discoverable BECAUSE _____
Define request to produce
A request to produce is a written request for access to documents or ESI or tangible items
Can a request to produce be sent to parties or non parties
Both
Under Rule 26 b1, In determining whether materials are relevant to the claim or defenses or if it is proportional to the needs of the case, what are some factors the court will consider?
(there are 6)
- The AIC
- if the burden or expense of discovery outweighs the benefit
- The importance of the issues at stake
- importance of discovery in resolving the issue
- The parties relative access to relevant info
- Parties resources
Discovery should not be used to settle _____ cases
Meritless
If a party gets information from an expert witness but does not plan to use this information at trial, under what circumstance would the information be discoverable?
Yes, if the party can show that it is impracticable to obtain facts or opinions on the same subject by other means
What is the GR for decisions made by nonjudicial tribunals?
Decisions made by a nonjudicial tribunal command preclusive effect only if it resulted from a procedure that is an adequate substitute for judicial procedure.
What are the fairness factors to determine if a non-judicial decision is an adequate substitute?
- Does the tribunal have COMPULSORY PROCESSES such as to introduce evidence, call witnesses, cross examination?
- Is there an ENABLING STATUTE suggest that rulings should not have preclusive effect?
- Was the nontribunal ACTING IN JUDICIAL CAPACITY and resolved issues of fact properly?
What are the 6 exceptions to non party preclusion?
- Nonparty agreed to be bound by a judgement and that judgement’s terms
- Certain substantive relationships, such a privity, may justify preclusion of a nonparty
- A nonparty may be bound if its interests are represented adequately by a party to the suit, citing as examples class actions and suits by trustees or guardians.
- A nonparty who as assumed control over a lawsuit (such as fully financially supplementing litigation)
- A nonparty who has colluded to avoid the preclusive effect of a judgement by litigating through a proxy may be bound
- Special statutory schemes such as bankruptcy or other suits that are brought only on behalf of the public at large.
Which rule governs failure to comply with discovery?
Rule 37
Under rule 27, a person who wants to ____ testimony about any matter cognizable may file a verified petition in the district ct for the district where any expected adverse party resides.
Perpetuate
What must the petition to perpetuate testimony show?
The petioner must show that the other party expects to be a party but presently cannot bring it or cause it to be brought
What ist the reason for perpetuating testimony?
Perpetuating testimony is used to show that the testimony would be lost if not preserved
Define privity
A legal relationship between parties
Pepetuating testimony happens before any lawsuit is _____
ever filed
Define material fact
Facts that would cause a party to change their position if actually known.
What is the GR for discovery sanctions
Sanctions must be proportionate to the harm caused to the other party and within the discretion of the judge.
What is the difference between a fact witness and an expert witness?
A fact witness is testifying to their first-hand knowledge. An expert witness is someone who has the specialized knowledge to assist the jury to resolve the issue.
Mental impression are _____ privilege
Absolute
What are the 3 types of expert witnesses?
- Fact experts
- Consulting experts
- Testyfing experts
Protective orders must be done in ____
good faith
A court may issue a protective order to protect a party from these 4 circumstances
(A/E/O/UB)
annoyance
embarassment
oppression
undue burden
How does a party object to a subpoena?
- A motion to quash
Mental and physical examinations can only be ____
court ordered
What are the types of sanctions under discovery?
S.PL/S.PR/DA
Strike pleadings
Stay proceedgins
Dismiss action
What are the elements as it relates to the communications between attny/client?
(O/LS/Ass.)
The communication must be made for the purpose of
- the opinion on law
- legal services or
- assistance in legal proceedings
What may a court do if the document has mental impressions?
The court can order that the mental impressions be redacted and disclose the remainder of information
Under Rule 30, What is the GR for corporate depositions?
The corporation must provide someone knowledgable when a party is seeking information via a deposition
What happens if the party the corporation selects to testify lacks the information sufficient to respond to the question asked?
if it is intentional, subject to sanctions
If is it not intentional, seen as as a failure to appear
The duty to respond to interrogatories is based on what 3 elements?
- basis of own knowledge
- basis of knowledge of other persons
- duty to reasonably investigate
When filing a motion to perpetuate testimony, what must be shown?
- Must show imminent danger to the testimony
2. Failure or delay of justice without the testimony
A party may not serve interrogatories before the parties have held a ______
Rule 26(f) discovery conference.
