Discovery Flashcards
(50 cards)
what are initial required disclosures
required even though parties have not asked for it.
- Names, #s and addresses of people with discoverable information if might be used to SUPPORT claims or defenses
- Copies /description of documents (ESI, tangible) in party’s control if might be used to SUPPORT claims or defenses
- computation of damages ( if monetary)
- any insurance coverage that might cover all/part of judgement (even though insurance probably would not be admissible at trial)
when must initial required disclosures be made
Unless a court order or stipulation of parties says otherwise, within 14 days of rule 26(f) conference
penalty for failure to disclose
Cannot use undisclosed material unless failure was substantially justified or harmless
when must required disclosures about an expert witness made
later in the case at a time directed by the court
what experts must be disclosed
Testifying experts MUST be disclosed
Consulting experts generally not discoverable, unless exceptional circumstances can be shown
Content of expert witness disclosures
Identity of EW and written report prepared by the EW including:
- opinions that EW will express
- bases for opinions
- facts used to form opinions
- EW qualifications AND
- how much EW is being paid
drafts of EW discoverable?
No! Earlier drafts of EW report and communications between lawyer/EW are protected work product
How to depose EW
By subpoena. Ordinarily, deposing party bears the cost (court sets per-hour fee)
failure to disclose material for EW
Cannot use EW unless failure was justified or harmless
what are the required pretrial disclosures
detailed info about trial evidence, including:
identities of witnesses, ESI, and other things that they intend to introduce at trial.
when are pretrial disclosures to be made?
No later than 30 days before trial
when can parties request information from each other
assuming no court order or stipulation provides otherwise, cannot send discovery requests until AFTER 26(f) conference
*exception: requests to PRODUCE can be served once 21 days have passed since service. Treated as though request was served at the rule 26(f) conference
who pays the cost of discovery
the responding party
who may be deposed
both parties and nonparties
how can a party compel a deposition
Party - Notice of deposition is sufficient
Nonparty - must be served with subpoena.
Effect of failure to properly give notice of deposition to deponent
If deponent fails to show up, noticing party may be liable for costs to the other parties for having to show up to the depo
subpoena duces tecum
requires deponent to bring requested materials to the depo
limits on deposition
Unless court orders otherwise:
1) no more than 10 depositions
2) cannot depose same person twice
3) cannot exceed one day of 7 hours
4) Nonparty only - Unless a nonparty agrees otherwise, the farthest nonparty is required to travel is 100 miles from where they reside or are employed
deposition of organization
when party is suing an org, she may notice the org and the org must designate a person to testify on that matter
how can depositions be used
- impeach deponent
- for ANY purpose IF deponent is adverse party
- for ANY purpose IF deponent (both party and nonparty) is unavailable - UNLESS absence was procured by the party seeking to introduce the evidence
who can interrogatories be sent to
only parties, never nonparties
limit on # of interrogatories
absent court order/stipulation - 25 including subparts
when must interrogatories be answered
must answer based upon information reasonably available within 30 days from their service
if answer to interrogatory can be found in business records
if the burden would be about the same on either party to find the answer in the records, responding party can just give requesting party access to the records
