Discovery Flashcards
(38 cards)
what is the pretrial timeline
- pleading
- rule 26f confernce between parties
- Initial disclosure
- Rule 16(b) initial pretrial conference (the judge is at this one)
- Rule 16 pretrial order (discovery and motion plan)
- Discovery
- Motion for summary judgment
- Rule 16a pretrial order (trial plan)
what is rule 16 all about
just tells you requirements of all the pretrial stuff
what does rule 26(a)(1) talk about
what you HAVE to give the other side even if they don’t ask for it
Ie things that would help your opponent
what are the five main objections to discovery requests
relevance, work product, privlage, undue burden, and non testifiying experts
what is the relevance rule for discocery and how is relveance defined
parties are permitted discovery into any matter that is relevant to any claim or defense
relevant = tending to make any fact at issue in the case more/less likely to be true
what is the work product rule for discovery?
what is work product
work product = document or other tangible object created by a party or party’s attorney in anticipation of litigation
there must be a showing that you NEED this work product and cant get it any other way otherwise, you cant touch it
fact work product v opionion work pattern
fact – the actual materials
opinion – mental impressions or conlcusions of the party’s attonrey
policy reason behind the work product rule
Attorneys are bad witness, testimony would be strategy or hearsay
Lawyers would stop writing stuff down if everything they worked on was discoverable
Hickman v taylor
4 survivors testifiying at public testimony
Fortenbaugh PRIVATELY interview the four survivors, he takes notes
Asks each of them to write out a statement
In discovery, petitioner directly asks for all that fortenbaugh has
issue: can the P demand the attorney’s notes from witness interviews
opposing counsel must demonstrate necessity, justification, or undue prejudice for access to counsel’s written statements, private memos, and personal recollections.
what is the discovery dance
You can object to certain discovery requests, but the other side can move for a motion to compel
Usually a broad discovery request gets narrowed though this process
But sometimes the parties wont budge
However, you need to try to work it out between yourselves before you take it to the judge
what does rule 26d do
Gives judge discretion to adjust timing and sequence of discovery
Giacchetto
D seeks to compel P to turn over social media posts in discovery
Any posts that are connected to her emotional well being (in response to her request for emotional damages)
Any posts that are connected to her physical well being (in response to her request for physical damages)
P argues that its a FISHING EXPEDITION
A plaintiff’s entire social networking account is not necessarily relevant for purposes of discovery simply because he or she is seeking emotional-distress damages.
According to Federal Rule of Civil Procedure (FRCP) 26(1)(b), parties may obtain discovery regarding any matter not privileged that is relevant to the subject matter involved in the pending action. Relevancy is construed broadly so as to encompass matter that is either itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.
Marrese v. American Academy of Orthopaedic Surgeons
During pretrial discovery, the doctors requested all files pertaining to the academy’s denial of membership applications between 1970 and 1980. The academy refused to produce the materials. The academy refused to comply. The district court held the academy in criminal contempt for violating the discovery order and fined the academy $10,000. The academy appealed.
Is a discovery order valid if the order is not carefully designed to reconcile the parties’ competing interests in allowing or denying discovery?
Said the district court should have reviewed the evidence in camera
District court judge should have stopped P from abusing the discovery process and the crim contempt against D is reversed
A discovery order violates Federal Rule of Civil Procedure 26 if the order is not carefully designed to reconcile the parties’ competing interests in allowing or denying discovery.
what are the elements for attorney client privlage
- Communication (written or oral)
- Between privileged parties (the client/client’s agent and attorney/attorney’s agent, subject to Upjohn if the client is corporation)
- Made in confidence (outside the presence of strangers to the privileged info)
- For the purpose of formulating or providing legal advice to the client
what is the attorney client privlage rule in disocovery
privlage information is protected from discovery
underlying facts are not protected only the communication is privileged
upjohn - issue of who’s a privileged party – what test does the court do away with and replace it with
Thomas as general counsel for the company conducts investigation via questionnaire
Purpose of the questionnaire was to figure if bribery happened
Sent to all foreign general and area managers
Managers were instructed to treat the investigation as highly confidential and not to discuss it with anyone other than upjohn employees
Responses were sent directly to general counsel
Made it clear that responder was dealing with something of a leagal nature
IRS tries to investigate as well
Subpoenas all files relevant to investigation including the questionnaire
The discovery dance ensued!
Thomas objects to the subpoenas
IRS files a motion to compel
issue: Are questionnaires sent to a company’s employees, including lower level employees, by its general counsel protected by the attorney-client privilege?
In the corporate context, the attorney-client privilege applies to not only those high-level employees who have the authority to act on the legal advice of the attorney, but also to any of those employees who provide information to the attorney so that he may give such legal advice.
does away with control group test because too restrictive and doesnt protect lower level employees and replaced with two questions
- Did the scope of the employee’s duties involve the lawsuit?
- was communication made in a way that the employee knew it was legal consequence?
ie figuring out element two of attonrey cilent privlage!
what are the elements of rule 26(c)(G) trade secretes
Info including methods, formulas, process, and combo of those
Which derives independent economic value by virtue of being kept secret
And is subject to efforts reasonable under the circumstances to maintain its secrecy
what are interrogotries (rule 33)
written questions for a party to answer
can you negotiate the 25 question limit on rule 33
yes! you can negotiate to modidty
who are interrogatories directed at?
can non parties get interrogatories
who drafts the answer?
they are directed at the party from another party
non parties dont get interogatories
the lawyer drafts the answers! you aks the client for the info you need, then show your client to make sure the can swear under otath that all the info is true
what are contention interrogatoires? (ie rule 33(a)(2)
how can you get around giving them,since they are not automatically objectionable
its an interogatory asks for the evidence supporting the party’s claims
you can avoid by giving what you have, subject to all the evidnece you have at the time
how long do you have to respond to interogatories
Must respond within 30 days
what does rule 34 request for production cover?
its a way for you to look at the physcial evidnec of the case
this is how you get your exhinnits and how you look at what your opponents exhibits may be
if someone asks a rule 33 question and a rule 34 request for production that asks for the same info, do you have to produce both
see rule 33(d)
