Discovery Flashcards
discoverable information
a party may obtain all non-privileged info that is:
1. relevant to any party’s claim or defense, AND
2. proportional to the needs of the case
NOTE: the info need NOT be admissible into evidence to be discoverable
NOTE: once a person reasonably anctipates litigation, that person has a duty to preserve ALL relevant evidence
depositions
a party is permitted up to 10 depositions of any person/party so long as the deposition is:
1. limited to 1 day of no more than 7 hours, AND
2. proper notice is given (reasonable written notice(
NOTE: a subpoena is NOT required to depose a party to the action
- BUT subpoena is the only thing that can compel a non-party
depositions & leave of court
unless stipulated otehrwise, a party MUST obtain leave of the court:
1. to take more than 10 depositions
2. to depose a party again (if they had already been deposed in the action), OR
3. if it’s seeking a deposition prior to the Rule 26(f) meet and confer conference
electronically stored info (ESI)
includes
- emails
- text messages
- digital files
- meta-data
when a party reasonably anticipates litigation, it must take reasonable steps to preserve ESI
- eg, suspend routin document retention/destruction policy, litigation hold
sanctions for failure to preserve ESI test
the court may sanction a party for failure to preserve ESI only if:
1. the ESI should have been preserved,
2. the party failed to take reasonable steps to preserve it, AND
3. the ESI cannot be replaced/restored through additional discovery
sanctions for failure to preserve ESI
(if the above test is satisfied), the court MAY:
1. order measures no greater than necessary to cure any prejudice, OR
2. if failure to preserve was intentional
- presume that the lost info was unfavorable,
- instruct the jury that it may or must presume that the lost info was unfavorable,
- dismiss the action, OR
- enter a default judgment
Rule 26(g) Discovery Disclosures & Sanctions
all discovery papers served in a litigation MUST be signed by an attorney of record (or a party personally if unrepresented)
Rule 26(g) certifications when signing
- signing any disclosure: certifies that it’s complete and correct @ time made,
-
signing any other discovery doucment: certifies that it’s:
1. consistent w/ the FRCP and NOT frivolous,
2. NOT being presented for an improper purpose, AND
3. NOT unreasonable, unduly burdensome, or unduly expensive
Rule 26(g) sanctions
the court may issue sanctions for failure to comply with Rule 26(g)
If a person violates the rule w/out substantial justification, the court MUST impose an appropriate sanction
- pay reasonable expenses (including attorney’s fees) caused by the violation
Rule 26(a) initial disclosures
without request, each party MUST provide these initial disclosures to opposing parties w/in 14 days after the Rule 26(f) “meet and confer” conference:
1. contact info of** individuals likely to have discoverable info,** plus the info they likely possess,
2. copy or description of all documents, ESI, & tangible things the party may use to support its claims/defenses (unless it will be used solely for impeachment),
3. computation of each cateogry of damages, AND
4. any insurance agreement that may be liable to satisfy a judgment in the action
failure to provide initial disclosures
if a party failes to provide any of the initial disclosure requirements, the party is NOT allowed to use that witness/info on a motion, hearing, or trial UNLESS the failure was substantially justified or harmless
attorney work product doctrine
protects from disclosure all materials prepared by an attorney (or his agents) in anticipation of or during litigation UNLESS:
1. a substantial need for the materials exist, AND
2. a substantial equivalent CANNOT be obtained w/out undue hardship
NOTE: attorney’s mental impressions NEVER discoverable
privilege log
when a party claims protection, it must disclose the existence of the material in sufficient detail to enable other parties to assess the claim of privilege
