Topics 6-8 MCA 2 Flashcards
What is spoliation
the destruction of documents that are needed for use in litigation.
Spoliation can be either accidental or deliberate.
Either way the information is gone, but the penalties for spoliation depend on whether it was deliberate.
when is the duty to preserve documents triggereed
when a party has a resson to know that litigation is likely
what is a litigation hold
D’s counsel must ensure that its clients put a hold on all documents that are relevant to the anticipated lawsuit.
37e
If electronically stored information that should have been preserved … is lost because a party failed to take reasonable steps to preserve it … the court:
1 Upon finding prejudice to the other party … may order measures no greater than necessary to cure the prejudice; or
2 Only upon a finding that the party acted with the intent to deprive another party of the information’s use in litigation may:
A Presume that the lost information was unfavorable to the party;
B Instruct the jury that it must presume the information was unfavorable to the party; or
C Dismiss the action or enter a default judgment.
26a1A
Some information “must” be provided by the parties “without awaiting a discovery request. This information is called the “initial disclosures” and it is mandatory.
what is the first category of 26a1
the names, addresses and telephone numbers of each individual likely to have discoverable information that supports your claims or defenses (along with the subjects of their information).
what is the second category of 26a1
documents and things that support your claims or defenses (or at least tell the other party what you have and where it is).
what is the third category of 26a1
a computation of your damages as well as the material on which the computation is based (unless it is privileged in some manner)
what is the fourth category of 26a1
any insurance agreement under which an insurer may be liable to satisfy all or part of the judgment or indemnify one of the parties.
what is the timing of initial discloseures
Initial disclosures must be made to the other side at or within 14 days of the Rule 26(f) conference. Rule 26(a)(1)(C).
what is a rule 26f conference
Rule 26(f) imposes a duty on the parties to meet to discuss the case “as soon as practicable” and in any event 21 days before the scheduling conference is to be held.
what is a discovery plan
Because Rule 16(b)(1) requires the court to issue a Scheduling Order, which may modify the amount of discovery allowed under the Rules and also sets dates for things like the close of discovery, the pretrial conference and the trial.
The Scheduling Order is based, in part, on the information provided by the parties in the written discovery plan.
incentives to rule 26f conference
Rule 26(d) states that parties cannot seek discovery from any source until after the 26(f) conference. So the 26(f) conference serves as the pre-requisite to engaging in discovery.
Can you refuse to produce the initial disclosures on the basis that you have not completed your investigation of the facts?
No. Rule 26(a)(1)(e) states that disclosures must be made on the basis of the information then reasonably available to the party. Failure to conclude your investigation is not an excuse.
What do you do if you made your initial disclosures before you completed your investigation and you subsequently find additional information that meets the requirements of Rule 26(a)?
Rule 26(e) imposes a duty to supplement your disclosures. You must supplement or correct your disclosures if they are materially inaccurate.
what is 26 e
A party who has made a disclosure under Rule 26(a) – or who has responded to an interrogatory, request for production, or request for admission – must supplement or correct its disclosure … if the party learns that in some material respect that disclosure or response is incomplete or incorrectq
Can you refuse to produce your initial disclosures if another party refuses to produce theirs?
No. Rule 26(a)(1)(e) is very clear on this point. “A party is not excused from making its disclosures because … another party has not made its disclosures.”
So what can you do if the other party refuses to produce their initial disclosures?
Make a motion to compel. Rule 37(a)(3)(A) permits motions to compel required disclosures.
rule 37
A motion to compel is a motion to force another party to produce some disclosure or discovery.
Rule 37(c)(1)
specifically says that one appropriate sanction for failure to disclose information required under Rule 26(a) is that the party who failed to disclose it may not use that information at trial unless the omission was “substantially justified or harmless.”
Rule 34a
Rule 34(a) allows a party to request either:
the production of documents;
the production of tangible things; or
entry onto property in order to inspect it.
definition of document
The definition of document in the Rule is very broad. It includes writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations “stored in any medium.” Rule 34(a)(1)(A).
is there a limitation to the number of document requests that can be made
noooooo
what do you have to include in your document request
Each document request must describe with reasonable particularity the documents or tangible things that are requested. R. 34(b)(1).
how do you respond to a rule 34 request
You must respond in writing in 30 days. Each item or category of documents must be responded to separately.
In your response you must either 1) state that inspection will be permitted; or 2) object to the request. R. 34(b)(2).
do objections to rule 34 have to be specific?
Objections must be specific. R. 34(b)(2)(B) & (C).
If you are only objecting to part of the request, you must say so.
You must disclose the specific basis for the objection.
You must disclose whether documents are being withheld under the objection
what are the typical objections based on the scope of discovery described in rule 26b
irrelevant;
privileged;
unreasonably cumulative or duplicative;
burden or expense of producing the documents exceeds the likely benefit;
not reasonably accessible (for electronically stored information).
If you are going to produce documents then you must either:
(1) produce them as they are kept in the ordinary course of business; or (2) label them to correspond to the categories in the request. R. 34(b)(2)(E).
Can you serve document requests on non-parties?
Not under Rule 34. See Rule 34(a) (“A party may serve on any other party a request …”).
However, Rule 45 permits parties to subpoena non-parties to produce information during discovery. See Rule 45(c) (“A subpoena may command a person to attend a trial, hearing or deposition …”).
under rule 45a every supoena must
(i) state the court from which it issued;
(ii) state the title of the action and its civil-action number;
(iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or permit the inspection of premises; and
(iv) set out the text ofRule 45(d)and (e).
scope of subpoenas rule 45d1 says
Rule 45(d)(1) says parties must “take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena”; and The court “must” impose sanctions on a party that fails to comply with this requirement. The Rule also says that third parties can quash subpoenas that impose an “undue burden” (R. 45(d)(3)(A)(iv)) and that third parties do not have to produce electronically stored information if doing so would cause undue burden or cost (R. 45(e)(1)(D)).
What is an interrogatory?
A written question that you serve on the other side that they are legally obligated to answer in writing (or object to).
rule 33a
(1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(1) and (2).
(2) Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.
what are discrete subparts
Courts have acknowledged that deciding whether an interrogatory contains “discrete subparts” is difficult and judges have considerable discretion. Courts have focused on the word “discrete.” They generally interpret this to mean separate or unrelated.
what is the scope of an interrogatory
The scope is the same as in Rule 26(b) – relevant non-privileged information. See Rule 33(a)(2).
The Rule explicitly states that interrogatories are not objectionable because they ask for an opinion or inquire about the application of the law to facts.
can you send an interrogatory to a non party
no
Answering interrogatories rule 33b1 says
(1) Responding Party. The interrogatories must be answered:
(A) by the party to whom they are directed; or
(B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party.
Answering interrogatories rule 33b2 says
(2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. . . .
Answering interrogatories rule 33b3 says
(3) Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.
Answering interrogatories rule 33b4 says
(4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.
What do you do if the other side objects to an interrogatory but you believe their objection is unwarranted? How do you get them to answer?
You make a motion to compel under Rule 37. Rule 37(a)(1) permits a party to “move for an order compelling disclosure or discovery.” See also Rule 37(a)(3)(B)(iii).
RFAs Rule 36a states
(1) Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to:
(A) facts, the application of law to fact, or opinions about either; and
(B) the genuineness of any described documents.
RFAs rule 36a2 states
Each request for admission must be separately stated.
RFA 36a3 states
A party receiving RFAs has 30 days to respond, and you are deemed to have admitted the RFAs unless you answer or object within the allowed time period. Rule 36(a)(3).
RFA 36a5 states
If you object, you must state the specific basis for your objection and the other party can move to determine the sufficiency of your objection. Rule 36(a)(5).
RFA 36a4 states
The rule governing how you answer an RFA is similar to the rule governing how you answer an allegation in a Complaint. Rule 36(a)(4).
You must either:
admit;
deny; or
explain why you can’t admit or deny.
What happens when you have admitted something under Rule 36
that issue is considered conclusively established. rule 34b
do you need the courts permission to withdraw or amend your admission (rule 36)
yes
Depositions Rule 30a1 states
“A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent’s attendance may be compelled by subpoena under Rule 45.”
how many depositions are you allowed and how many towards one person
10 depositions (R. 30(a)(2))
Individuals can only be deposed once (R. 30(a)(2))
how long are depositions limited to
Limited to 1 day of 7 hours. (R. 30(d)(1))
Parties may stipulate to additional depositions
Parties may request add’l depositions from court
Depositions rule 30b1 states
“A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent’s name and address.”
can you combine a deposition with a document request
yes(30b2) but do not do it
can non parties be depsed
Can depose non-parties (R. 30(a)(1)), but to do so you must subpoena them under R. 45. “The deponent’s attendance may be compelled by subpoena under Rule 45.” Rule 30(a)(1).
Depositions of orginizations Rule 30b6 states
In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, [etc.] . . . and must describe with reasonable particularity the matters for examination.
The named organization must then designate one or more officers, directors, or managing agents, . . . who consent to testify on its behalf; and it may set out the matters on which each person designated will testify . . .
The persons designated must testify about information known or reasonably available to the organization. .
can the party taking the 30 b 6 deposition demand that a particular witness appear
no The organization chooses its own representative
So long as the representative can “testify about information known or reasonably available to the organization” then they are an appropriate representative.
what if the business doesnt designate who you want
then you can simply depose them individually.
If they are not a party to the lawsuit, you can use a subpoena to depose them.
deposition objections rule 30c2 states
Lawyer defending deponent can make objections to the question on the record (e.g., not relevant, calls for speculation, leading question, hearsay etc.)
But deposition continues and W must answer the question anyway!
under a deposition objection how may a layer instruct a witness not to answer a question
Preserve a privilege
Enforce a protective order
Terminate the deposition and seek a protective order
what sanctions can the court impose under 30 d 2
The court can impose sanctions (including attorneys’ fees) on a person who:
Impedes, delays or frustrates the deposition
Court “must” grant add’l deposition time if necessary to fairly examine the deponent. (R. 30(d)(1).)
who is likely to impede or delay the deposition and how
Usually, the lawyer defending the deponent is accused of: (1) wasting time with long narrative objections; (2) using suggestive objections to coach the deponent on how to answer questions; or (3) misusing instructions not to answer the question to prevent answers to questions that seek non-privileged information. All of these are prohibited by Rule 30(c)(2).
Mental and physical examination under rule 35a1states
“The court where the action is pending may order a party whose mental or physical condition—including blood group—is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.”
who orders a party to under mental or physical examinaation
Only the Court can order a party to undergo such an examination. This is not something you can request directly from the other party.
rule 35a2a states
The party making the motion for an order compelling the examination must also show “good cause” as to why the examination is needed.
under rule 35b what are the contents of a m or p exam
(2) Contents. The examiner’s report must be in writing and must set out in detail the examiner’s findings, including diagnoses, conclusions, and the results of any tests. The result of a Rule 35 mental or physical exam is a written report (prepared by the examiner) stating the conclusions of the examination.
Request by the Party or Person Examined under 35b states
(1) Request by the Party or Person Examined. The party who moved for the examination must, on request, deliver to the requester a copy of the examiner’s report, together with like reports of all earlier examinations of the same condition. . . .
Request by the Moving Party rule 35b states
(3) Request by the Moving Party. After delivering the reports, the party who moved for the examination may request—and is entitled to receive—from the party against whom the examination order was issued like reports of all earlier or later examinations of the same condition. . . .
(4) Waiver of Privilege. under rule 35b states
. By requesting and obtaining the examiner’s report, or by deposing the examiner, the party examined waives any privilege it may have . . . concerning testimony about all examinations of the same condition.
pre trail disclosures must include under 26a3
Names and addresses of witnesses you intend to call during trial
Documents or other exhibits you intend to introduce at trial
Other parties then have 14 days in which to object to your disclosures.
Scope of Discovery – Rule 26(b)(1) states
“Parties may obtain discovery regarding any non-privileged matter that is RELEVANT to any party’s claim or defense and proportional to the needs of the case … .”
what is the difference between information and evidence
During discovery you collect relevant information. At this stage it is simply information.
At trial, you submit that information to the court. If the court concludes the information is admissible it becomes evidence and is made part of the trial record.
In assessing whether requested discovery is proportional to the needs of the case, courts consider:
The importance of the issues at stake;
The amount in controversy;
The parties’ relative access to information;The parties’ resources;
The importance of discovery in resolving the issues; and
“Whether the burden or expense of the proposed discovery outweighs its likely benefit.”
Some Additional Limitations – Rule 26(b)(2)(C)
Courts may further limit the parties’ access to information that is w/in the scope of discovery if:
The requested discovery is “unreasonably cumulative or duplicative”
It could be obtained from a different source that is more convenient, less burdensome or less expensive
The party seeking discovery had ample opportunity to obtain the info by discovery but didn’t
There is an additional limitation that applies to electronically stored information:
Rule 26(b)(2)(B)
“A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden and cost.”
What if the material the other side wants is relevant and non-privileged but contains:
Embarrassing private information; or
Confidential business information
Is it discoverable?
Yes, if it is relevant and not privileged, then it is presumptively discoverable. Information is not outside the scope of discovery simply b/c it is embarrassing or confidential.
But you may be able to limit what the other side can do with that information.
Rule 26(c) – Protective Orders
“A party or any person from whom discovery is sought may move for a protective order . . .”
The burden is on the party from whom the discovery is sought to move for a protective order before disclosing the requested information.
The court won’t act on its own. You must ask for protection.
Rule 26(c) – Protective Orders The court may issue a protective order for “good cause” to protect a party from
“annoyance, embarrassment, oppression, or undue burden or expense”
There are a range of remedies the court may award, including forbidding discovery and limitations on how the requested information can be used. Rule 26(c)(1)
Common limitations in protective orders:
Making some topics explicitly off-limits
Prohibiting disclosure of material to anyone outside of the litigation
Limiting purpose for which the info can be used
Requiring destruction of info when litigation is complete
Rule 26(c)(3) says that Rule 37(a)(5) applies to awards of expenses arising out of motions for protective orders. What does that mean?
Rule 37(a)(5) institutes a special fee-shifting regime for motions to compel. If you make a motion to compel and lose, then you pay the other sides attorneys’ fees.
The same fee-shifting applies to protective orders. So, the losing party in a dispute over a protective order will pay for both parties’ attorneys’ fees incurred in moving for the protective order.
Attorney-Client Privilege
The privilege protects communications (oral or written) between the lawyer and the client
The communications must be made for the purpose of furnishing or obtaining legal advice.
The communications must be confidential.
But privileges can be waived by:
Failing to assert them at the appropriate time; or
Acting inconsistently with the maintenance of the privilege
Privilege and R. 26(b)(5)(B) If a party inadvertently discloses privileged info during discovery, it can:
Notify the other party
The other party must then “return, sequester or destroy” the info; and
Cannot use the info until the claim of privilege has been “resolved”
Does R. 26(b)(5)(B) fully protect inadvertently disclosed docs?
No. It says only that the inadvertently disclosed docs cannot be used by the other side until the claim that the disclosure waives the privilege has been resolved.
How is the claim of privilege “resolved”?
The party receiving the inadvertently disclosed doc (and wishing to use it in the litigation) must submit the issue to the court. The court will then determine whether the disclosure waived the privilege. If the court finds the privilege has been waived, the receiving party may use the document.
When will the privilege be waived?
When the party with the privilege fails to take reasonable precautions to protect the confidentiality of the privileged communication.
So, failing to review your docs for privilege before producing them will probably result in a waiver since a reasonable attorney would have reviewed them first.
But if you reviewed the documents carefully before producing them but accidentally missed one privileged document, your precautions might have been reasonable.
If your precautions were reasonable, then the privilege was not waived by the inadvertent disclosure and the other party cannot use the document.
Since you don’t normally disclose privileged docs (except by accident), how does the other side know whether you are withholding any docs based on a claim of privilege?
R. 26(b)(5)(A) requires that a party withholding docs based on a claim of privilege make that claim expressly (i.e., tell the opponent that things are being withheld) and disclose the “nature” of the documents that are being withheld.
This requirement leads to the creation of a “privilege log” which lists all the docs withheld and their general nature
Trial Preparation Materials – R. 26(b)(3)
Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject toRule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable underRule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
Experts generally
the expert must possess specialized knowledge or expertise about some subject that is outside the knowledge of an average juror. The expert’s methods be sufficiently reliable for the jury to base their decision upon the expert’s testimony.
This often means that the expert’s methodology must be one that is accepted within her field.
Fact witnesses
Fact witnesses are limited to testifying based on their own personal knowledge (i.e., things they saw or did)
“I saw Mr. Smith leave the house.”
“I heard a loud bang and then looked towards the intersection.”
experts
can offer opions based on facts
Expert Disclosures (26(a)(2))
“In addition to the disclosures required byRule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence underFederal Rule of Evidence 702,703, or705.”
In-house vs. retained experts. R. 26(a)(2)(B):
“the disclosure must be accompanied by a written report . . . if the witness is one retained or specially employed to provide expert testimony . . . or one whose duties as the party’s employee regularly involve giving expert testimony”
Contents of Expert Reports R. 26(a)(2)(B)
Name;
Report containing a complete statement of the opinions of the expert and the basis for those opinions; plus
List of exhibits the expert will use at trial
Expert’s CV
List of prior cases testified in
Disclosure of expert’s compensati
If an expert is not required to produce the detailed expert report described in Rule 26(a)(2)(B), then they are still required to produce a “disclosure” that includes:
The subject matter on which they will testify; and
A “summary” of the facts and opinions they will offer
See Rule 26(a)(2)(C).
Timing of Expert Reports R. 26(a)(2)(D)
Disclosure (and report if required) occurs 90 days before trial
Rebuttal reports (if any) 30 days after the expert report being responded to
CAN YOU depose opposing party experts
After all the expert reports and rebuttal reports have been exchanged, the parties may depose the opposing party’s experts.
See Rule 26(b)(4)(A).
Non-Testifying Experts
If the expert is not going to testify at trial, then the party has no obligation to make disclosures about the expert under R. 26(a)(2):
And Rule 26(b)(4)(D) makes it clear that
the trial preparations materials doctrine applies to the work product of non-witness experts.
Parties are not allowed to obtain discovery about these non-witness experts absent a showing of “exceptional circumstances under which it is impracticable for the party to obtain the facts or opinions on the same subject by other means.”
draft versions of the reports as trial preparation materials.
But the rules specifically protect draft versions of the reports as trial preparation materials. See Rule 26(b)(4)(B).
Rule 37(a)(1) – Duty to Confer
“On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery.The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.”
Fee shifting – Rule 37(a)(5)
if the moving party is granted the requested order, there is a presumption that the non-moving party must pay the moving party’s attorneys’ fees associated with the motion (and vice versa if the moving party’s request is not granted).
Two exceptions to the exception. No fee shifting if:
Moving party did not “confer” prior to filing
Non-moving party’s non-disclosure was “substantially justified”
When would non-disclosure be “substantially justified”?
If the court thinks that disclosure is a close question (e.g., b/c the court thinks that the non-disclosing party had a reasonable legal argument as to why not to produce it, even though the court ultimately disagrees) then the refusal to disclose would be substantially justified. But if the court thinks that this is a simple case and the law is clear that the party should have disclosed the information, then the court will award attorneys’ fees.
Rule 37(b) – Failure to comply with a court order
The sanctions for failing to comply with a court order are significant, and can include:
An order striking pleadings
Dismissal of the action
Issuance of a default judgment; and
Contempt of court (which could result in jail time for whoever is found to be disobeying the order)
Rule 37(d) – Failure to Respond
The court where the action is pending may, on motion, order sanctions if:
(i) a party or a party’s officer, director, or managing agent … fails, after being served with proper notice, to appear for that person’s deposition; or
(ii) a party, after being properly served with interrogatories underRule 33or a request for inspection underRule 34, fails to serve its answers, objections, or written response.
