Discovery - Class 3/7/2023

Question 1

What is an expert?

Answer 1

Somebody who has specialized knowledge, training, experience or education.

Question 2

Somebody who has specialized knowledge, training, experience or education.

Answer 2

Expert

Question 3

Two Types of Experts
1.
2.

Answer 3

1. Testifying Experts
2. Consulting Experts

Question 4

The person who is going to come and sit on the witness stand and talk about whatever you ask questions about.

Answer 4

Testifying Expert

Question 5

A person into things yo undo not know anything about.

Answer 5

Consulting Expert

Question 6

It impacts discovery whether they are a testifying or a consulting expert because a testifying we __________________ and a consulting _________________>

Answer 6

Testifying - get to find out about
Consulting - we don’t get to find out about

Question 7

FRCP 26(b)(4)

Answer 7

Trial Preparation: Experts

Question 8

If they are a testifying expert, you can take their ____________ if they are a consulting expert you cannot.

Answer 8

Deposition

Question 9

If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided. Why do you want the written report?

Answer 9

So you can ask them questions and you make sure they have all their information

Question 10

Rules 26(b)(3)(?) and (?) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

Answer 10

Rule 26(b)(3)(A) and (B)

Question 11

Anytime an expert prepares a report you want them to give it to you first in draft form so that you can look at it to make sure it is correct before it is given to the other side. What rule?

Answer 11

Rule 26(b)(3)(A) and (B) protect drafts of any reports or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

Question 12

Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications involve:
1.
2.
3.

Answer 12

1. Money
2. Facts or Data
3. Assumptions
   Those are not protected. Everything else is protected.

Question 13

If I’m going to depose your expert or I’m going to do anything that requires your expert, I have to pay for your expert’s time.
A court can do cost shifting but generally they will not. If you want to dispose them or whatever you have to pay the bill. What rule?

Answer 13

Rule 26(b)(4)(E) ??

Question 14

3 Purposes for Discovery:
1.
2.
3.

Answer 14

1. Preserve (evidence)
2. Discover (Find out facts)
3. Narrow (Narrow issues through settlement or dismissal)

Question 15

Could be testimony of someone who is going to live the country or that is ill, documents- banks only have to keep for 7 years and after that they are gone you need documents now because they will be gone.
Locking people’s story in, memory might fade or change.

What does this refer to?

Answer 15

Preserve evidence

Question 16

I don’t know, I just need to get information. Find stuff out. I don’t know why you think you are entitled to this; I don’t know why you slip and fell. Get information. Which tool?

Answer 16

Discover - Find Out Facts

Question 17

Taking about something and you say you have sued Walmart for 75,000 excesses. Threshold for the money but I don’t know how much money you want. The way I act is really different if you are seeking 100,000 versus 1M. Did you look at the floor when you slip and fell or whatever. Sometimes you can narrow to a point where we don’t have to try so much. What tool?

Answer 17

Narrow Issues (through settlement or dismissal)

Question 18

Tool chest:
Discovery Devices

Answer 18

1. Initial Disclosures
2. Request for Production
3. Interrogatories
4. Oral Depositions
5. Deposition on Written Questions
6. Physical & Mental Exams
7. Requests for admissions
8. Subpoenas

Question 19

The rules say you have to talk to your opponent. The idea is to work on a _____________ ___________. There eventually will be a _____________ ___________ that says the date at which discovery must be completed, by which all depositions must be taken, or all amendments must be made. It wants you to talk about it with your opponent and the court doesn’t care, if you are your opponent are in agreement. They do care about trial. They want a docket they can rely on.

Answer 19

Scheduling Order
Scheduling Order

Question 20

In most civil cases, at the outset of discovery, the parties “must confer as soon as practicable – and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due…”
What rule?

Answer 20

Rule 26(f) Discovery Conference

Question 21

The ______________ _____________ is intended as a vehicle for the parties to “consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case.” Rule 26(f)(2).

Answer 21

Discovery Conference

Question 22

Rule ______________ sets forth everything that is required to be included within the discovery plan.

Answer 22

26(f)(3)(A)-(F)

Question 23

Under_____________, there is a moratorium on discovery until the Rule 26(f) conference has occurred.

Answer 23

Rule 26(d)(1)

Question 24

Required Initial Disclosures: What rule?

Answer 24

FRCP 26(a)(1)

Question 25

What does stipulation mean?

Answer 25

both sides agree

Question 26

(a) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclosure to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.

What does this refer to?

Answer 26

Testifying expert.

Question 27

For every discovery device you have an ongoing duty to __________. If you decide to hire someone you have to __________ your disclosure and say I am hiring him as an expert.

Answer 27

supplement
supplement

Question 28

Scope =

Answer 28

relevance

Question 29

P requests a complete set of Tax Returns in electronic form from ABC, Inc. for the years 2012-2014. The request (for production) does not request the Tax Returns in any particular electronic form. ABC only keeps the Tax Returns only in Excel files. ABC Corp. must produce the documents:
A. As printouts
B. As PDF files
C. As Excel files
D. Any of the above

Answer 29

Answer: C. As Excel Files.

Question 30

______________ can be useful for identifying witnesses and discovering the location of documents or other tangible evidence, to the extent that hasn’t already been provided in the mandatory initial disclosures,

Answer 30

Interrogatories

Question 31

_______________ can be useful for identifying witnesses and discovering the location of documents or other tangible evidence, to the extent that hasn’t already been provided in the mandatory initial disclosures,

However, they are also susceptible to abuse; questions that are simple to write may be very burdensome to answer, especially given the verification requirement.

Answer 31

Interrogatories

Question 32

If___________ are overly broad and unduly burdensome, expect a lot of objections in response.

Answer 32

interrogatories

Question 33

_____________ are written questions sent to the opposing party that must be answered under oath.

Answer 33

Interrogatories

Question 34

Interrogatories are _________ _________ sent to the opposing party that must be answered under _________.

Answer 34

written questions
oath

Question 35

The interrogatories may inquire into any relevant area, and may seek opinions, contentions, or applications of law to facts. What rule?

Answer 35

Rule 33(a)(2).

Question 36

_____________ interrogatories explore the basis for an adversary’s position. The court may defer the duty to answer these until discovery has been completed.

Answer 36

“Contention”

Question 37

Unless otherwise agreed to or ordered by the court, parties are limited to __________ interrogatories. Rule 33(a)(1)

Answer 37

25

Question 38

Unless otherwise agreed to or ordered by the court, parties are limited to 25 interrogatories. What rule?

Answer 38

Rule 33(a)(1)

Question 39

The interrogatories must be answered or objected to, in whole or in part, by the party itself within 30 days, unless otherwise agreed to. What rule?

Answer 39

Rule 33(b)(1)-(2).

Question 40

The interrogatories must be answered or objected to, in whole or in part, by the party itself within __________ unless otherwise agreed to. Rule 33(b)(1)-(2).

Answer 40

30 days,

Question 41

Only parties are required to respond.

Presumptive limit of 25 interrogatories per party.

What rule?

Answer 41

Rule 33 - Interrogatories

Question 42

Two common disputes over the form of ESI production:
1.
2.

Answer 42

1. Production in native format v. production in PDF/TIFF
2. Production of Metadata

Question 43

1)Production in native format v. production in PDF/TIFF .

__________ _____________ is searchable and provides underlying information (e.g., formulas in Excel Spreadsheets.)

Answer 43

Native Format

Question 44

2)Production of __________

Information describing the history, tracking, or management of the file that “is not usually apparent to the reader viewing a hard copy or a screen image.”

Answer 44

Metadata

Question 45

Generally, the requesting party is going to seek the production of ESI in __________ __________ and with metadata intact, because it provides information to which it would otherwise would not have access.

Answer 45

native format

Question 46

The producing party will prefer a PDF/TIFF production that withholds metadata, because those formats are less subject to ______________.

Answer 46

manipulation

Question 47

If parties cannot agree, they will turn to the court.

Courts will not always require production in a certain format; rather, the test is whether the underlying information meets the relevance standard of Rule 26(b)(1) and whether there will be an ___________ __________ OR ___________- on the producing party.

Answer 47

Undue burden or cost

Question 48

If the producing party strips metadata from the files that is the destruction (legal term: _____________) of evidence.

Answer 48

spoliation