Scope of Discovery & Enforcement of Discovery Rules

Question 1

What can you discover?

Answer 1

Anything relevant to a claim or defense

Question 2

What is Relevant?

Answer 2

Relevant includes things that are “reasonably calculated to lead to the discovery of admissible evidence.”

It’s broader than admissible

Question 3

Discovery of harmful info

Answer 3

Remember, something harmful to you need not be disclosed in required disclosures, but may well be discoverable using the regular discovery tools.

Question 4

Proportionality of Discovery

Answer 4

Even if something is relevant, the court has authority to limit discovery if the request is cumulative or if the burden outweighs the importance of the issue

Question 5

Privilege

Answer 5

You can object to discovery on the basis of evidentiary privilege – like confidential communications between attorney and client.

Question 6

Work product

Answer 6

Work product or “trial preparation materials” (material prepared in anticipation of litigation). Generally protected from discovery.

Question 7

Does work product have to be generated by a lawyer?

Answer 7

No - it is by a party or any representative of a party

Question 8

Would it be work product if it were in electronic format?

Answer 8

Yes

Question 9

Qualified Work Product

Answer 9

Work product that is otherwise undiscoverable can be discovered if it is shown:

1. Substantial Need;
2. and its not otherwise available

Question 10

“absolute work product”

Answer 10

BUT there is also “absolute work product,” which cannot be discovered. Things absolutely protected from discovery are:

1. mental impressions,
2. opinions,
3. conclusions, and
4. legal theories.

Question 11

Asserting privilege or work product

Answer 11

If you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection expressly and describe the materials in detail.

Question 12

When you assert privilage or work product, what materials must you describe in detail? And what is this document called? What else must be included

Answer 12

List the materials protected by:

• date,
• author,
• recipient,
• and privilege or protection claimed.

It must be in enough detail to allow the judge to determine whether the material is protected.

This is called a A privilege log.

Question 13

There are three ways courts get involved in discovery disputes:

Answer 13

1. Protective order
2. Partial response to discovery request
3. No response to discovery request

Question 14

When can you move for a Protective Order

Answer 14

If the responding party thinks a discovery request subjects it to annoyance, embarrassment, undue burden, or expense (e.g., ESI is not reasonably accessible (e.g., deleted files) or the request is cumulative and not proportional to the case) she can move for a protective order

Question 15

Must must you do in order to compel a protective order?

Answer 15

She must certify that she tried in good faith to get the info without court involvement – that she asked the other side to “meet and confer.”

Question 16

In a protective order situation, what can the court do if it agrees that that she tried in good faith to get the info without court involvement?

Answer 16

If the court agrees, it can:

1. deny discovery or
2. limit it or
3. permit it on certain terms.

Question 17

What can the party/court do in the case of a Partial response to discovery request

Answer 17

Here, the responding party answers some questions but objects to others. Requesting party will make a motion to compel answers, and the court will decide whether the objections were legitimate.

Question 18

No response to discovery request.

Answer 18

Here, the responding party fails completely to attend her deposition, respond to interrogatories, or to respond to requests for production.

Question 19

Sanctions against a party.

Answer 19

(The party seeking sanctions must certify that she tried in
good faith to get the info without court involvement.)

Sanctions depends on 1 of 2 types of responses.

Question 20

What types of responses elicit sanctions?

Answer 20

1. Partial response
2. No Response

Question 21

Sanctions for Partial Response

Answer 21

Two options:

1. You move for an order compelling the party to answer the unanswered questions, plus costs (including attorney’s fees) of bringing motion.
2. IF the party violates the order compelling him to answer, RAMBO sanctions plus costs (and attorney’s fees re the motion) and could be held in contempt for violating a court order (except no contempt for refusal to submit to medical exam).

Question 22

Sanctions for no response

Answer 22

RAMBO plus costs (and attorney’s fees for the motion). No need to get an order compelling answers. Go directly to RAMBO.

Question 23

RAMBO SANCTIONS (choices available to judge):

Answer 23

1. Establishment order (establishes facts as true)
2. Strike pleadings of the disobedient party (as to issues re the discovery)
3. Disallow evidence from the disobedient party (as to issues re the discovery)
4. Dismiss plaintiff’s case (if bad faith shown)
5. Enter default judgment against defendant (if bad faith shown)

Question 24

If a party fails to produce ESI because it was lost in the good faith, routine operation of an electronic info system, are there sanctions?

Answer 24

Only in exceptional cases