Discovery Flashcards
What is the purpose of discovery?
1) trial preparation
2) focus on contested issues
3) save judicial resources
4) eliminate surprise
STAGES OF DISCOVERY: When does informal discovery take place?
before a complaint or before file an answer
STAGES OF DISCOVERY: Rule ii. 26(a)(1); Mandatory/required/initial disclosures
- info that needs to be given to the other side w/o any requests from the other side i.e.: documents, witnesses, insurance
STAGES OF DISCOVERY: Rule 33: Interrogatories
1) 25 questions to ask a party & a party may agree to more
2) simple info
3) No follow up questions
STAGES OF DISCOVERY: Rule 34: document requests/entry upon land/requests for tangible things
Why it sucks:
- difficult to produce
- not limited
- requests to parties. Subpoena for non-parties (rule 45)
STAGES OF DISCOVERY: Rule 30 depositions
- can ask follow up questions
- can pin witnesses down in terms of what their story is
- costly: take time, more thought/strategy
- witnesses must answer unless have a protective order
STAGES OF DISCOVERY: Rule 36: requests for admissions
- not limited
- conclusively proves something
- ask other side to either admit or deny or say don’t have info
- taking issues off the table
SCOPE OF DISCOVERY: Rule 26(b)(1) Limit on relevance & privilege
- A party can seek discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense”
SCOPE OF DISCOVERY: Davis
looking for complaints from previous employees. It was okay since it was narrowly tailored to the specific claims of the case. Relevant to establish pretext.
SCOPE OF DISCOVERY: Steffen
Motion for protective order. Steffen refused to answer whether he engaged in gay sex because he felt it was irrelevant to his speech and had had 5th amendment priv against self-incrimination
LIMITS ON DISCOVERY: Privacy Stalnaker case:
D motioned for protective order in sexual harassment/hostile work environment case. Potential harassment towards another employee. Allowed, but kept confidential from other 3rd parties.
LIMITS ON DISCOVERY: Rule 26(c): an order protecting non-party witnesses from discovery concerning voluntary romantic conduct of their sexuality related activities.
Court has the discretion to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. Must show good cause (particular and specific demonstration of fact)
LIMITS ON DISCOVERY: Privilege Types
- Physician
- Psychotherapist-Patient
- against self-incrimination (5th Amendment)
- spousal communications
- priest-penitent
- journalists and confidential sources
LIMITS ON DISCOVERY: Elements of Attorney-Client Privilege
1) A communication
2) Made between privileged persons
3) In confidence
4) For the purpose of obtaining or providing legal assistance for the client
LIMITS ON DISCOVERY: Hickman tug boat case
Tug sank while helping to tow a car float of a RR. 5/9 crew members drowned. Oral and written statements were accessible, but one side tried to obtain the other’s files. No bueno.
1. Work Product
LIMITS ON DISCOVERY: Rule 26(b)(3) Work Product is
(1) documents and tangible things; (2) prepared in anticipation of litigation or for trial
LIMITS ON DISCOVERY: Not work product
(1) a relevant “statement” by the party seeking the statement
(2) a relevant “statement” statement of a person not a party
EXPERTS: Rule 26(a)(2)
- Must identify
- Expert witness’ involves giving expert testimony must disclose written report: opinions and reasoning; facts/data used to arrive at opinion; exhibits used to summarize/support opinions; qualifications; list of prior expert testimony; fee paid
- Other expert witness’ (e.g. a treating physician) need to disclose the subject matter and the summary of facts and opinions
- Timing: within 90 days before trial (or 30 days if it’s a rebuttal expert)
EXPERTS: Thompson
(P) alleged sexual harassment. The (P) was reduced to a severely emotional state and her employment was terminated. She went to see a dr and wanted to get protective order for treatment record. However still discoverable b/c (D) could not obtain info any other way.
EXPERTS: Chiquita
in determining whether a person qualifies as a non-testifying expert, as opposed to a fact witness, the court focuses on how the potential witness came about his information. Here, the court found that Winer qualified as a non-testifying expert because he was specifically engaged by Plaintiff to examine the vessel in connection with the cargo loss claim.
EXPERTS: Rule 26(b)(4)(D)(ii):
facts and opinions from a non-testifying expert can be obtained “on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.”
EXPERTS: Silvestri
This case highlights that even before litigation is commenced, you may have certain duties (in this case, a duty to preserve evidence [spoliation]).The court has discretion to dismiss an action for the spoliation of a key piece of evidence, particularly when such conduct of the spoliator may have been either deliberate or negligent and becomes “highly prejudiced” to the defendant. court dismissed
EXPERTS: Spoilation
refers to the destruction or material alteration of evidence or to the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation
PERSERVING EVIDENCE: Rule 37(a)
- 37(a)(1): general framework for motions to compel
