Discovery Flashcards
(27 cards)
What rule sets the basic rules of discovery?
26
Scope of Discovery
26(b): Parties may discover anything relevant to a claim or defense that is not privelage and is proportional to needs of the case
What discovery tools are available for no parties?
Depositions, Doc production and physical and mental exams where custody or control
Discovery method in which numbered, written questions are asked
Interrogatories
How many interrogatories are generally allowed?
25
How many depositions are allowed and how long are they
10 and 7 hours
5 factors for determining when discovery is proportional to the needs of the case
1) amount in controversy
2) importance of issue
3) party’s resources
4) importance of discovery in resolving the issue
5) burden/expense as compared to benefit
Motion to compel
Requires a non-cooperative party to submit to discovery
Parties must — and — before asking for intervention of the court
Meet and confer
A — — is made on the part of the responding party to prevent or limit discovery
Protective order
Reasons a protective order may be granted
Annoyance, embarrassment, oppression, undue burden, expense
A party may limit discovery of ESI that is
Not reasonably accessible
Note: ct may still allow discovery upon showing of good cause
7 factors of cost shifting
1)extent to which request is specifically tailored to discover relevant info; 2) the availability of such info from other sources; 3) total cost of production compared to amount in controversy; 4) cost of production compared to resources available to parties; 5) relative ability of each party to control costs and its incentive to do so; 6) importance of the issues at stake in litigation; 7) relative benefits to the parties of obtaining info
In order to obtain a [] under Rule 35, must show [] because it is so invasive.
Physical or mental exam
Good cause
What mechanisms of discovery cannot be served on Non-parties?
Initial disclosures, interrogatories, requests for production, physical or mental exam, requests for admissions
When can you obtain a physical or mental exam on a non-party?
When the party is in the party’s legal custody or control
Depositions are the most through discovery mechanism, but may be disfavored because
They are limited in number (10), time (7 hours), and they are costly
What discovery mechanism allows you to collect discovery from non-parties?
Subpoena under Rule 45
A subpoena must be served from within
100 miles of the issuing court
True or False: discovery must be turned over in the manner requested by the discovering party
False. It need only be reasonably accessible, but does not have to comport with a party’s request
True or False: Metadata is discoverable
True
Attorney Client privilege exists where
1) advice is sought 2) from a licensed attorney acting in their capacity as an advisor; 3) communication is related to purpose; 4) made in confidence 5) by client, and is 6) protected at client’s insistence 7) form disclosure; 8) unless waived
Privilege, such as doctor pt, belongs to the [] and may . . .
Client
Disclosed at their discretion. A doctor cannot claim privilege if their patient brings suit.
Work Product:
Documents prepared in anticipation of litigation cannot be disclosed unless it is otherwise discoverable and party shows great need. Even then, mental impressions and opinions have an absolute privilege against disclosure.
An example would be if a party collects a deposition from a witness who then dies. As the info is no longer available, a party would likely be able to discover even if it is work product.
