Discovery

Question 1

Discovery - Gral - Elements

Answer 1

• Procedure used to require adverse party
• To disclose information that is essential for preparation of the requesting party’s case
• That the other party alone knows or posses
• Request is for any non-privileged matter relevant to any party’s claim

Question 2

Discovery - Methods - PRIDE (5) (post mandatory initial disclosures)

Answer 2

1) Production of docs
2) Requests for admission
3) Interrogatories
4) Depositions
5) Examinations (physical and mental)

Question 3

Discovery - Methods - PRIDE - Special Rules for response after discovery request

Answer 3

For production of docs, req for admission and interrogatories (PRI):

• party has 30 days from request to submit or deemed as formally objected (responding parties bear own costs)

Question 4

Discovery - Timing and sequence

Answer 4

• Gral rule: any speed/order after Mandatory Discovery Conference
• but 14 days for mandatory disclosure
• court or statute can order differently

Question 5

Discovery - Mandatory Discovery Conference

Answer 5

• Btwn counsel
• Binding agreement on schedule for discovery
• Start of 14 days for mandatory disclosure

Question 6

Discovery - Ex-parte Informal Contact

Answer 6

• Duty for parties to communicate formally through counsel on discovery issues
• Prohibition of improper coms dealing with the opposing party, or its experts, consultants, physicians and for corps w/mgmt level employees
• Proper to com with lay witness and lower level former employees

Question 7

Discovery - Scope - Gral

Answer 7

• Very broad and liberal
• FRCP 26: info that appears to be relevant or likely to lead to admissible E
• NOT necessarily admissible
• Privileges apply hence confidential coms not discoverable unless waived

Question 8

Discovery - Scope -Restriction - Protective Order

Answer 8

• Court can order it to bar/limit discovery
• DUOP situations of request - avoid “fishing” for E

Question 9

Discovery - Scope -Restriction - Protective Order - DUOP grounds

Answer 9

1) Duplicative
2) Unduly burdensome
3) Oppressive
4) Protection of secret process/formula/software code/ other trade secrets

Question 10

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - Reqs for discoverable

Answer 10

WP prepared for litigation is NOT discoverable UNLESS:

• only source +
• “substantial need”

Question 11

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - “Only Source” Requirement

Answer 11

No justification of discovery when statement is obtainable as result of deposition

Question 12

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - “Substantial need for court” Requirement

Answer 12

Party needs to show to court:

• Importance of info to their case
• Difficulty of obtaining equivalent info from other sources

Question 13

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - Specific Restrictions to application (hence possible discovery) (3)

Answer 13

1) Attorney’s work at issue - i.e. malpractice case
2) Attorney’s impressions, legal theories and/or strategies
3) Attorney waives privilege - “open door” to counsel by showing materials to W to prepare for testifying/deposition

Question 14

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - Content Protected

Answer 14

• Docs - Tangible items
• i.e. investigative report, W statements, research notes, photos, videos - EVEN if not prepared by attorney but requested by him

Question 15

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - “Preparation in anticipation of litigation” Requirement

Answer 15

• broad definition: “Likelihood of litigation” is enough (even if not yet commenced)
• Right not to be discovered BUT also duty not to destroy them

Question 16

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - Difference with Attorney Client Privilege

Answer 16

• WP prevents discover of material prepared in anticipation of litigation

VS

• Privilege is protection of confidential coms in both criminal and civil. (Court might required preparation of privilege log to be submitted)

Question 17

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - Similarity with Attorney Client Privilege

Answer 17

Both can be waived

Question 18

Discovery - Scope - Insurance Availability

Answer 18

Mandatory disclosure of insurance policy that might cover all or part of judgment

Question 19

Discovery - Scope - FOIA

Answer 19

Allows for discovery when suing govt entity

• WP and other privileges still apply

Question 20

Discovery - Experts - 3 possible types of discovery

Answer 20

1) As Expert W
2) As consultant (not as W)
3) As “Fact Expert” aka “Occurrence Expert”

Question 21

Discovery - Experts W - Disclose obligations (5)

Answer 21

1) Subject matter
2) Substance of opinion
3) Grounds of opinion (factual basis and data used)
4) Compensation
5) Qualifications

Question 22

Discovery - Experts W - Gral

Answer 22

• Expert must be formally depose (no ex-parte contact possible)
• Failure to comply will prevent from giving testimony and be subject sanction

Question 23

Discovery - Experts as consultant - Gral

Answer 23

• Under WP doctrine (as part of legal team)
• Opposed party needs to show “Exceptional Circumstances” creating undue hardship and inability to obtain info from other source

Question 24

Discovery - “Fact Expert” aka “Occurrence Expert” - gral

Answer 24

• W on basis of personal involvement that otherwise would qualify as expert W
• treated as lay W
• no discovery protection

Question 25

Discovery - "Fact Expert" aka "Occurrence Expert" - Test

Answer 25

"Were opinions obtained for the specific purpose of preparing for litigation?"

Question 26

Discovery - Mandatory Initial Disclosure - gral

Answer 26

- Even if not requested by opposing party aims to limit delay tactics - Within 14 days from initial discovery conference

Question 27

Discovery - Mandatory Initial Disclosure - Content (5 + 1+ 1)

Answer 27

1) ID of W w/discoverable info 2) Physical/electronic docs on party's possession/custody/control + location 3) Other tangibles party may rely upon 4) Numerical calculations of dx 5) Summary of subject that W of fact will testify about + 1) Existing of insurance of policy + 1) Reqs for expert testimony (5)

Question 28

Discovery -Depositions - Gral

Answer 28

- Recorded oral/video/stenographic examination UNDER oath BEFORE TRIAL - From anyone - even non party - Proper venue is where action is pending OR at his house/work/regularly conduct business - Subpoena required from the court where action is pending

Question 29

Discovery -Depositions - Subpoena

Answer 29

- Service of subpoena is required to compel attendance of non party - Service to location within state or 100 miles from where lives/work/regularly conduct business - Deponent can present motion to quash subpoena - Deponent also tendered with check to pay for attendance fee and milleage cost

Question 30

Discovery -Depositions - "Duces Tecum" Subpoena

Answer 30

Deponent is also compelled to bring along all necessary documents

Question 31

Discovery -Depositions - Actual deposition

Answer 31

- Under oath - W reviews transcription and correct pre-official publication - Up to 7 hours per day

Question 32

Discovery -Depositions - Conduct During Deposition

Answer 32

- Answer w/o evasion or privately consult with counsel - Objection and instructions from counsel only to: a) assert privilege (i.e. spouses communication) b) object form of Q (not leading) c) Request protective order if DUOP circumstances

Question 33

Discovery -Depositions - Use of deposition transcript as E on trial as exception to hearsay

Answer 33

Transcription of deposition Exception to gral hearsay rule (is out-of-court statement ) * - when inconsistent previous statement or as opposed party admission * - Can be admissible as former testimony if if deponent is unavailable as W at trial

Question 34

Discovery -Depositions - Use of deposition as E on trial as exception to hearsay - Party deposition

Answer 34

- Used in place of live testimony - Exception hearsay: when used as opposed party admission

Question 35

Discovery -Depositions - Use of deposition as E on trial as exception to hearsay - Non- Party deposition

Answer 35

- Exception to hearsay allowed to show prior consistent or inconsistent items when acting as W at trial

Question 36

Discovery - Interrogatories - Gral

Answer 36

- Written Q's addressed only to opposing party - Cost bear by responsing party - Answers to Q are exceptions to hearsay rule as admission by party opponent

Question 37

Discovery - Interrogatories - Procedure

Answer 37

- Request must be answered within 30 days of service - Can be included as part of discovery request

Question 38

Discovery - Interrogatories - Written Supplementation of Responses

Answer 38

- Mandatory when answering party notices discoverable matter or additional experts expected to testify - Test: Will new info lead to more discoverable information?

Question 39

Discovery - Production of Docs

Answer 39

- Request to other party to produce/copy or present for inspection docs - Answer to request in 30 days by indication of ID of info, location and/or allow for examination - Can be also to 3rd party via "duces tecum" subpoena

Question 40

Discovery - Physical/Mental Examination

Answer 40

- When **party places his own condition at issue of controversy** (emo distress bc of physical condition is not enough to justify physical exam) - Gral rule: _by agreement_ w/other party - Granted by motion when court finds "good cause"

Question 41

Discovery - Request for Admission of factual E

Answer 41

- Deemed admitted if not affirmatively denied or object within 30 days - UNLESS court allows withdrawal or amendment - Request for pure admission of conclusion of law is not allowed * - i.e. "Do you admit that X statute applies?"

Question 42

Discovery - Supplementation of responses to discovery requests

Answer 42

No gral duty to supplement UNLESS: 1) Prior responses discovered to be materially incomplete or incorrect 2) Need for correction or completion not satisfied yet by other discovery request

Question 43

Discovery - Abuses - Gral

Answer 43

- Generates discovery dispute among parties (inconvenience not enough) - Parties must try to confer with other counsel and try to solve - If no success ask court for Protective or Compelling order and potentially for sanctions - Ultimate abuse = Spoliation

Question 44

Discovery - Abuses - Protective Orders

Answer 44

- When other party seeks excessive discovery AND/OR protected info - Order to limit scope of discovery

Question 45

Discovery - Abuses - Sanctions - Gral

Answer 45

- Court w/discretion to define severity - Attorney fees and costs from motion usually granted

Question 46

Discovery - Abuses - Sanctions - Types

Answer 46

1) Exclude E 2) Held party in contempt 3) Payment of costs and attorney fees 4) Dismissal w/prejudice for abuse by P\* 5) Default Judgment for abuse by D\* (ultimate sanctions- rare)

Question 47

Discovery - Abuses - Sanctions - Specific rule for W

Answer 47

W excluded if party fails to identify him before trial (bc of mandatory initial disclosures)

Question 48

Discovery - Abuses - Spoliation

Answer 48

- As intentional destruction of relevant E - relates w/duty to _preserve E_ when is CLEAR that opposing party has legal claim OR defense expectation EVEN before suit being filed - Applies also to electronic docs and for civil/criminal procedures

Question 49

Discovery - Abuses - Spoliation - Sanctions

Answer 49

- Harsher sanction that other abuses - Court will consider level of culpability AND degree of prejudice to other party - Also Negative Inference

Question 50

Discovery - Abuses - Spoliation - Sanctions - "Negative Inference"

Answer 50

- Evidence of destruction is admissible to suggest destruction of "smoking gun" - Opposing counsel may be allowed to have jury instruction inviting to such infered

Question 51

Motion in limine

Answer 51

- TO exclude admissible evidence - Usually before trial begins, but also before E is presented - Later is possible by jury instruction to ignore E (but is hard to "unring the bell")