Discovery Flashcards
(56 cards)
What is discovery and what are the two main categories?
Process for parties to obtain information from each other and third parties. Categories: Mandatory disclosures; and Requests for information.
What are the 3 mandatory disclosures and the deadline for each?
- Initial disclosures: 14 days after discovery conference. 2. Expert testimony: 90 days before trial. 3. Pretrial disclosures: 30 days before trial.
If party was served or joined after Rule 26(f) conference, deadline is 30 days after being served or joined. If evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party, then the deadline is within 30 days after the other party’s disclosure.
What are the 6 methods of discovery?
Mandatory disclosures; Interrogatories; Request for Admissions; Request for Documents and Tangible Items; Requests for Mental or Physical Examinations; and Depositions.
What type of information is discoverable?
Any information that is: Relevant; Proportional to the needs of the case; and Not privileged.
What type of information is not discoverable?
Information that is: Irrelevant; Privileged; or Work product (unless there is a showing of substantial need or undue hardship).
When is information considered relevant for discovery purposes?
If it is likely to make any fact in the dispute more or less likely to be true, regardless of whether it is admissible.
What is a Rule 26(f) conference?
Initiates the discovery process. Requires that parties meet ‘as soon as practicable’ to discuss claims & defenses and the possibility for settlement.
What is the deadline to hold a Rule 26(f) conference?
At least 21 days before scheduling conference is held.
What initial disclosures do parties need to make within 14 days of the Rule 26(f) conference?
Contact info for individuals likely to have discoverable information; Documents that support a party’s claims or defenses; Damages calculation & material upon which the calculation is based; and Insurance agreements that could satisfy all or part of a possible judgment.
What is a Rule 16(b) conference?
Conference where the judge issues a scheduling order detailing deadlines for disclosures, filings, and other discovery issues.
By when must the Rule 16(b) conference occur?
As soon as is practicable, but within 90 days of D being served, or within 60 days of when D appears, whichever is earlier.
Do insurance agreements need to be disclosed regardless of whether the other party asks for them?
Yes, insurance agreements are initial disclosures required by Rule 26(a)(1).
What are the different types of privilege?
Attorney/client, Doctor/patient, Spousal, Priest/penitent, Work product, Journalist (protection from revealing confidential sources), 5th Amendment protection against self-incrimination.
Is privilege an absolute bar to disclosure?
Yes, absolute bar.
What is considered work product?
Any documents or tangible things prepared in anticipation of litigation or trial by or for another party or its representative.
Are documents prepared in the ordinary course of business considered work product?
No.
When is work product discoverable?
If materials are otherwise discoverable under Rule 26(b)(1) and the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
What type of work product is almost never discoverable?
Mental impressions, conclusions, opinions, and theories regarding the case.
What types of communications are subject to attorney-client privilege?
Communications that are between the attorney and client; Were intended to be, and were, in fact, kept confidential; and Were made for the purpose of obtaining or providing legal advice.
What pretrial disclosures are required for expert and lay witnesses?
Expert: List of all expert witnesses and any info used to form the basis of their opinions. Lay: List of all witnesses and documents that will be used as exhibits at trial.
If the expert was specially retained to provide expert testimony, what must their discovery disclosures contain?
Name and contact information of the expert; Expert’s final report; Expert’s opinion and credentials; List of all other cases in which the expert has testified in (past 4 years only); Data relied on by the expert; and Amount of compensation to be paid for the study.
Are materials developed by non-testifying experts in anticipation of litigation discoverable?
No, unless exceptional circumstances make it impracticable for the parties to obtain the info by other means.
If the expert does not provide a written report, what must their disclosures contain?
The subject matter on which the witness is expected to present evidence; and Summary of the facts and opinions to which the witness is expected to testify.
