Discovery

Question 1

What are the initial required disclosures?

Answer 1

Within 14 days of the Rule 26(f) conference, each party must disclose certain information:

• Identities of persons with discoverable information that the party may use to support her claims or defenses
• Documents and tangible things that the party may use to support her claims or defenses (must be within the party’s custody and control)
• Anyone claiming monetary relief must provide a “computation,” supported by documents or ESI of the amount sought
• The parties must disclose any insurance that might cover all or part of the judgment in the case (“discoverable” is broader than “admissible”)

Question 2

What is the penalty for failing to disclose required materials?

Answer 2

If a party fails to disclose material that was required to be disclosed, that party cannot use the undisclosed material in the case unless the failure to disclose was substantially justified or harmless.

Question 3

Disclosure of Expert Witnesses

Answer 3

Consulting experts need not be disclosed absent exceptional circumstances

Testifying experts must be disclosed

Written report by expert must be disclosed

Draft reports and communications are protected work product.

Question 4

Who pays for Deposition of an Expert Witness?

Answer 4

Deposing party bears the cost of the deposition

Question 5

What happens if a party does not disclose the required information about their expert witness?

Answer 5

They cannot use that witness at trial UNLESS the failure was justified or harmless.

Question 6

What are Pretrial Disclosures?

Answer 6

At least 30 days before trial, the parties must give detailed information about their trial evidence, including:
- Identity of witnesses who will testify
- Electronically stored information
- Documents
- No surprises at trial

Question 7

When can a party not send discovery requests to another party?

Answer 7

A party cannot send discovery requests to another party until after the Rule 26(f) conference.

Minor exception: “Requests to Produce” can be served earlier (once 21 days has passed since service of process)

Question 8

Five Discovery Tools

Answer 8

1) Depositions
2) Interrogatories
3) Request to Produce
4) Medical Exam
5) Requests for Admission

Question 9

Subpoenas or Notice of Deposition

Answer 9

Non-parties MUST be served with a subpoena

Notice of deposition is sufficient for parties in the case

Question 10

Subpoena Duces Tecum Definition

Answer 10

A subpoena duces tecum requires the deponent to bring requested materials with her to the deposition.

Question 11

How far can a non-party deponent be required to travel for the deposition?

Answer 11

No more than 100 miles from where the nonparty resides or is employed, unless they agree otherwise.

Question 12

Limits of Depositions

Answer 12

A party cannot take more than 10 depositions

A party cannot depose the same person twice without court approval or stipulation.

Depositions cannot exceed one day of seven hours unless the court orders or parties stipulate otherwise.

Question 13

Interrogatories Definition

Answer 13

Interrogatories are written questions to be answered in writing under oath.

Question 14

Procedure for Interrogatories

Answer 14

• Interrogatories are sent only to parties (never to nonparties)
• Limited to 25 (unless court order or stipulation)
• Must be answered within 30 days from their service.

Question 15

How to answer interrogatories?

Answer 15

A party must answer interrogatories based upon information reasonably available.

If the answers to interrogatories can be found in business records and the burden of finding the answer would be about the same for either party, the responding party can allow the requesting party to have access to the records.

Question 16

Contention interrogatories definition

Answer 16

Interrogatories that inquire about legal contentions

They are permitted

Question 17

What are Requests to Produce?

Answer 17

A request to produce asks a party to make documents available for review and copying, or to permit entry on designated property to inspect, measure etc.

Question 18

How to Respond to Requests to Produce?

Answer 18

The disclosing party must respond to the request in writing within 30 days of service, stating that the material will be produced or asserting objections.

Question 19

Who can be served with Requests to Produce?

Answer 19

Only parties can be sent a request to produce, but a nonparty can be served with a subpoena to require her to disclose the same types of information.

Question 20

Requirements for Medical Exams

Answer 20

• A court order is required
• Party only (or person in the party’s custody and control, like a child)
• The person’s health must be in controversy
• Good cause

Question 21

What is a Request for Admission

Answer 21

Written request asking opponent to admit facts:
- Opponent must respond within 30 days
- Response: Deny, Insufficient knowledge, Object, or Admit
- Reasonable inquiry must be made before answering

Question 22

What happens if a party fails to deny a proper request for admission?

Answer 22

The matter is deemed admitted

Question 23

Signature Requirement for Discovery

Answer 23

Parties sign substantive answers to discovery under oath. Not a Rule 11 requirement.

The signature certifies that the discovery request is:
* Warranted;
* Not interposed for an improper purpose, and
* Not unduly burdensome.

Question 24

Duty to Supplement in Federal Court

Answer 24

If new facts come to light after responding to discovery that make previous responses incomplete or incorrect, the party must supplement their response.

Question 25

Scope of Discovery

Answer 25

A party can discover anything relevant to claim or defense and proportional to needs of the case.

Remember: “discoverable” is broader than “admissible.” You can discover hearsay, for example.

Question 26

Objections to discovery based on privilege

Answer 26

A party can object to discovery on the basis of an evidentiary privilege (e.g., confidential communications between attorney and client.)

Question 27

What is protected work product?

Answer 27

Material prepared in anticipation of litigation.

Need not be generated by a lawyer- can be prepared by the party or by any representative of a party (e.g., a private investigator)

Question 28

When is work product discoverable?

Answer 28

“Qualified Work Product” is discoverable if:
(1) substantial need and
(2) undue hardship in obtaining the materials an alternative way.

Opinion work product (e.g., conclusions, opinions, or legal theories) cannot be discovered

Question 29

How to assert privilege or work product protection?

Answer 29

Party must claim the protection expressly and describe the materials in detail through a document called a “privilege log”

A privilege log lists the materials protected by date, author, recipient, and privilege or protection claimed.

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

Question 30

What happens if a party inadvertently discloses privileged or protected material?

Answer 30

Promptly notify the other party, who then must return, sequester, or destroy the material pending a decision by the court about whether there has been a waiver of the privilege or protection.

Question 31

Three ways courts get involved in discovery disputes

Answer 31

1) Protective Order
- Court can deny motion and order discovery, limit discovery, or permit discovery with terms.

2) Compel a Party to Fully Respond to a Discovery Request

3) Subject a party to sanctions and costs if they fail to respond to a discovery request completely

Question 32

When can a party move for a Protective Order?

Answer 32

If the responding party thinks a discovery request subjects her to annoyance, embarrassment, undue burden or expense.

The party must certify that she tried in good faith to resolve the issue without court involvement.

Question 33

What must a party seeking sanctions certify?

Answer 33

That she tried in good faith to get the information without court involvement

Question 34

What are the sanctions for a partial failure to respond?

Answer 34

Two-step process:
1. The requesting party moves for an order compelling the producing party to comply
2. If the producing party violates that order, the court can enter “merits” sanctions, and award costs and attorneys’ fees for bringing the motion.

The producing party could be held in contempt for violating a court order (BUT no contempt for refusal to submit to a medical exam)

Question 35

What are the sanctions for a complete failure to respond?

Answer 35

The court can enter “merits” sanctions plus costs and attorneys’ fees for the motion.

There is no need to get an order compelling answers: directly to “merits” sanctions.

Question 36

Merits Sanctions

Answer 36

A judge can do any of these:
* Establishment order (establishes facts as true)
* Strike pleadings of the disobedient party
* Disallow evidence from the disobedient party
* Dismiss plaintiff’s case (if bad faith shown)
* Enter default judgment against defendant (if bad faith shown)

Question 37

Litigation Holds

Answer 37

When litigation is reasonably anticipated, parties must preserve discoverable information.