Discovery

Question 1

What is Discovery

Answer 1

Phase of litigation in which the parties find out what the other parties and witnesses know

Question 2

Initial Required Disclosures Basic Idea

Answer 2

Information that each party must give to other parties even though parties haven’t asked for it.

Question 3

When are Initial Required Disclosures Due

Answer 3

within 14 days of Rule 26(f) conference, unless court order or party stipulation.

Question 4

What is initial disclosures are required?

Answer 4

1) Identities of persons with discoverable information that the party may use to support her claim or defenses

2) DOcuments and things that the party may use to support her claims or defenses (Must be in party’s custody and control)

3) Computation of relief and along with supporting documents/ESI

4) Insurance coverage (that covers all or part of judgment)

Question 5

Penalty for Failing to disclose initial required disclosures

Answer 5

Party cannot use the undisclosed material in the case unless the failure to disclose was substantially justified or harmless

Question 6

Required disclosures about an expert witness

Answer 6

After initial required disclosures, at a time directed by the court, each party must identify expert witnesses who may provide testimony at trial and certain other disclosures

Question 7

Consulting Experts vs Expert witnesses

Answer 7

Consulting experts help a party prepare a case. They are NOT expert witnesses and not discoverable absent exceptional circumstances.

Question 8

Contents of required EW disclosures

Answer 8

Identity of and written report prepared by the EW. Includes:
1) Opinions that EW will express
2) Bases for opinions
3) Facts used to form opinions
4) EWs qualifications AND
5) How much the EW is being paid

Question 9

Deposition of EW

Answer 9

After EW Disclosures, party may take a deposition of the EW. Best practice is to subpoena.

Question 10

Failure to get required EW disclosures

Answer 10

Party cannot use the EW in the case unless the failure was justified or harmless

Question 11

Required PRETRIAL Disclosures

Answer 11

No later than 30 days before trial, parties must give detailed information about their trial evidence including identity of witnesses, ESI, and other things they intend to introduce at trial

Question 12

Discovery Tools Process

Answer 12

After initial disclosures, parties may request information.

Without court order/stipulaton, party cannot send discovery erqurests to another party until after the 26f conference. (EXCEPTION: requests to produce can be served earlier; once 21 days has passed since service of process)

Question 13

List of Discovery Tools

Answer 13

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

Question 14

Depositions

Answer 14

Person gives recorded live testimony under oath in response to questions by counsel/pro se parties. Both parties and nonparties can be deposed.

Parties don’t need to do research beforehand.

Question 15

Deposition Notice

Answer 15

Parties: No subpoena required. Just a notice of deposition.

Nonparties: Must be served with subpoena or else not compelled to attend.

Question 16

Subpoena Duces Tecum

Answer 16

Requires deponent to bring requested materials to deposition

Question 17

Limit on Deposition of Nonparties

Answer 17

Unless nonparty agrees otherwise, max 100 miles from residence or place of employment.

Question 18

Deposition of an organization

Answer 18

Party “notices” a deposition of the organization and describes the facts she wants to discover.

Organization designates a person to testify.

Question 19

Limits on Depositions

Answer 19

Max 10 depositions

Can’t double depose someone without court approval or stipulation.

Can’t exceed one day of seven hours unless court orders or parties stipulate otherwise.

Question 20

Use of depositions

Answer 20

May be used at trial to:
1) Impeach the deponent
2) For any purpose if the deponent is an adverse party; or
3) for any purpose if the deponent is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence

Question 21

Interrogatories and rules

Answer 21

Written questions to be answered in writing under oath.

Sent only to parties.

Generally max 25.

Must be answered within 30 days from service.

Answering parties must do homework. Answer based on information reasonably available.

Question 22

Interrogatories and business records

Answer 22

If answers are 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 23

Contention Interrogatories

Answer 23

Interrogatories that inquire about legal contentions.

Permitted.

Question 24

Request to Produce and rules

Answer 24

Asks a party to make available for review and copying “documents or things;” or to permit entry on designated property to inspect, measure, etc.

ESI (Electronically stored info) must be produced in the form requested, unless objected to.

Disclosing party must respond within 30 days of service, stating it will be produced and/or objections.

Only applies to parties, but a nonparty can be subpoenaed to the same effect.

Question 25

Medical Exams (Physical or Mental)

Answer 25

Court order required to compel. Requesting Party must show: 1) that the person's health is in actual controversy, and 2) Goods cause. Requesting party chooses the licenses medical professional to perform the exam

Question 26

Medical Exams, custody, and control

Answer 26

Narrow. Employee not in custody/control of employer, but a child is.

Question 27

Requesting a copy of the medical exam report

Answer 27

Person undergoing the exam can get a copy of the report. If requested and obtained, she must, on request, produce all medical reports by her own doctors about the same medical condition, and waives any doctor-patient privlege with her doctor regarding the condition.

Question 28

Request for Admission

Answer 28

A written request that someone admit certain matters. Must respond within 30 days of service. If responder made a reasonable inquiry and can't find enough information to admit or deny, she can say she doesn't know. IF aprty fails to deny, the matter is deemed admitted. Usually used to authenticate documents.

Question 29

Signature Requirement for Discovery

Answer 29

Parties sign substantive answers to discovery under oath. Every request and response is signed by counsel certifying it is: 1) Warranted; 2) Not interposed for an imporper purpose; and 3) Not unduly burdensome

Question 30

Duty To Supplement

Answer 30

If new facts come to light after responding to discovery that makes a required disclosure, interrogatory, RfP, or RfA incomplete or incorrect, party must supplement.

Question 31

Standard Scope of Discovery

Answer 31

Can discover anything that is relevent to a claim or defense and proportional to the needs of the case. Information need not be admissible to be discoverable.

Question 32

Privilege Objection

Answer 32

A party can object to discovery on the basis of evidentiary privlege (such as confidential communications).

Question 33

Work Product Protection and types

Answer 33

WP = material prepared in anticipation of litigation. Protected. Doesn't need to be generated by a lawyer in federal court. Two types: 1) Qualified 2) Absolute

Question 34

Qualified Work Product

Answer 34

Work product that can be discovered if requesting party can show 1) Substantial need and 2) undue hardship in obtaining the materials in an alternative way

Question 35

Absolute work product

Answer 35

Absoutly protected and cannot be discovered.

Question 36

Opinion work product

Answer 36

Absolutley protected. Consists of mental impressions, conclusions, opinions, or legal theories.

Question 37

Party's Own Statements

Answer 37

Notwithstanding work product, a party can demand discovery of any pervious statement she made regarding the case.

Question 38

Asserting privlege or work product

Answer 38

In a "privlege log," must claim the protection expressly and describe the materials in detail. Must be detailed enough to let judge make a decision.

Question 39

Inadvertent disclosure of privlege or protected material

Answer 39

Producing party should notify the other party promptly. The recieving party must then return, sequester, or destroy the material pending a decision by the court about whether there has been a waiver.

Question 40

Three Ways/scenarios courts get involved in discovery disputes

Answer 40

1) Party Seeks Protective Order 2) Party responds, but not fully 3) No response to discovery request

Question 41

Party Seeks protective order

Answer 41

If responding party thinks request subjects her to annoyance, embarassment, undue burden or expense, she can move for a protective order. Party must certify that she tried in good faith to resolve the issue without court involvment (asked otherside to meet and confer.) If the court agrees, court can: 1) Deny discovery 2) Limit discovery, or 3) permit discovery or specified items

Question 42

Party Responds but not fully

Answer 42

Responding party may be compelled to comply by court order

Question 43

No response to discovery request

Answer 43

Will be subject to sanctions plus costs

Question 44

Pre-seeking sanctions

Answer 44

Must certify they tried to meet and confer (good faith attempt without court involvment)

Question 45

Sanctions for partial responses process

Answer 45

1) Requesting party moves for an order compelling production + costs of bringing the motion 2) If producing party violates order, court can enter a "merits" sanction + costs and attorneys fees for bringing motion. Producing party could be held in contempt (exception: medical exam submission).

Question 46

Sanctions for no response process

Answer 46

Court can enter merits sanction + costs.

Question 47

What are merits sanctions

Answer 47

Judge can choose among the following "merits" sanctions: 1) Establishment order (establishes facts as true) 2) Strike pleadings of the disobedient party (issues re: discovery) 3) Disallow evidence from the disobidient party (issues re: discovery) 4) Dismiss P's case (if bad faith shown) 5) Enter default judgment against D (if bad faith shown)

Question 48

Litigation hold and ESI special rules

Answer 48

WHen litigation is reasonably anticipated, parties must preserve discoverable info. If ESI is truly lost b/c party in control failed to take reasoanble measures to preserve it, court may order measures to cure the harm. If lost in bad faith, court can enter adverse inference and/or merits sanctions and/or deafult judgment.