Discovery

Question 1

Scope of Discovery

What initial disclosures

Answer 1

Party can obtain any non-privileged matter that is relevant to a claim or defense, including documentary evidence. The information doesn’t need to be admissible but must be proportional to the needs of the case
* Relevance: information that has tendency to make a fact in the dispute more or less likely to be true

Initial Disclosures
* Identities of witnesses believed to have discoverable information and their contact information
* Insurance policies that may cover part or all of claim
* Calculation of damages and material on which it’s based
* Any documents or tangible evidence, including electronic documents, that parties may use to support their claims

Not discoverable
* Work product
* Irrelevant information
* Confidential information under attorney-client privilege

Question 2

Subpoena

Answer 2

A party can subpoena documents and records and thus require the other party to produce them. Nonparties can be subpoenaed as well for relevant documents and records.

Contempt: If the other party/nonparty refuses to produce them, the party can file a motion to hold them in contempt for failure to comply with the subpoena.

Question 3

Order to Compel Physical and Mental Examination

Answer 3

When a party’s mental or physical condition is in controversy, party can make formal request in court on a showing of GOOD CAUSE to have an independent physician perform a mental/physical examination. MUST provide facts showing why examination is relevant and necessary and specify time, place, manner, conditions, and scope of examination as well as who is doing it.

Question 4

Six Discovery Tools

Answer 4

Deposition
Mandatory disclosure
Interrogatories
Requests for admission
Requests for production
Order to Compel Physical and Mental Examination

Question 5

Work Product

Answer 5

Any document or tangible evidence prepared by a party or representative in anticipation of litigation.

• Not discoverable unless opposing party has substantial need and cannot obtain its equivalent without undue hardship.
• COMIT: Conclusions, opinions, mental impressions, and legal theories are almost never discoverable.

Question 6

Failure to Provide Discovery

Answer 6

Party can file motion to compel if it certifies a good faith attempt to obtain discovery
* if granted, party can recover costs for filing motion
* if denied, court may issue protective order