Flashcards in Discovery Deck (35):
What is the general discovery timeline under Rule 26?
Required disclosures [26(a)] -> Conference [26(f)] --> Conference Report (within 14 days following the conference) --> Expert Disclosures (90 days before trial) --> Depositions/ Interrogatories/ Pretrial Disclosures (30 days before trial) --> trial.
Rule 26: What are the reasons for discovery?
1. Preservation of relevant information that might not be available at trial.
2. Ascertain the issues and isolate them.
3. Allow parties to obtain evidence on disputed issues.
4. Helps to promote transparency.
5. Prohibits trial by ambush (Exception: Impeaching or discrediting a witness).
6. Liberal and almost unlimited definition of relevance. The definition is extremely broad.
What are the required disclosures under Rule 26(a)?
In general, a party must, without awaiting a discovery request, provide the other parties:
1) Witnesses: the name, address, telephone number of each individual likely to have discoverable information.
2) Relevant Documents: All documents, information, tangible things that the disclosing party has in its possession and may be used to support its claims. UNLESS THE INFORMATION WOULD BE USED SOLELY FOR IMPEACHMENT.
4) Insurance Agreements.
When must initial disclosures be made under Rule 26?
A party must make initial disclosures within 14 days after the parties 26(f) conference, unless they agreed to another time frame.
What is the automatic disclosure of expert testimony under Rule 26(a)(2)?
In addition to the other required disclosures, a party must disclose to the other parties the identity of any expert witnesses it may use at trial within 90 days of trial.
What are the pretrial automatic disclosures which must be made under Rule 26(a)(3)?
Within 30 days of trial, a party must provide to the other parties the following, even if used to impeach:
2) Deposition Witnesses;
What is the scope of discovery under Rule 26(b)?
The scope of discovery is as follows:
a) Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense.
b) for good cause, the court may order discovery of any matter relevant admissible at trial if the discovery appears reasonable to lead to the discovery of admissible evidence.
What is a protective order under Rule 26(c)?
The party can ask the court to keep specific information private for the protection of the party.
These can be used, for good cause, to protect the party from annoyance, embarrassment, oppression, or undue burden or expense.
What is the timing and sequence of discovery?
1) A party may not seek discovery from any source before the conference occurs;
2) Unless the court orders otherwise:
a) methods of discovery may be used in any sequence; and
b) Discovery by one party does not require the other party to delay their discovery.
Rule 26(e): what does the Duty to Disclose require?
Requires the parties to constantly review prior discovery and current discovery to ensure that it is up to date. So whenever anything changes or more information is found, the parties must supplement their interrogatories, discovery, etc. to ensure it is up to date.
When do the parties have to confer under rule 26(f)?
The parties must confer as soon as practicable and in any event at least 21 days before a schedule conference is to be held.
Rule 30: Deposition by Oral Examination. How does it occur and how does it work?
Can be used for both parties and non-parties (rule 45 for non-parties because they must be subpoenaed). This allows a formal oral examination of a witness while under oath.
How to arrange a deposition under Rule 30?
1) Parties are deposed according to notice to all parties;
2) Non-party witnesses are subpoenaed under Rule 45, then notice must be given to all parties.
3) Notice must give to all parties.
Rule 30(b)(6): How to subpoena and depose an organization-
1) In giving notice to the organization, a party may name the organization and must describe with reasonable particularity the matters for examination.
2) The named organization then must designate one or more officers, directors, or managing agents who consent to testify on its behalf.
3) The person designated MUST be capable of testifying to these matters to speak for the organization.
(a) if the person does not, the court may sanction the organization.
How do objections work during depositions according to rule 30(c)?
An objection at the time of examination must be noted on the record, but the examination still proceeds; with the objection noted. Then when introduced at trial, the objection will be examined and ruled on.
When may an attorney instruct a deponent not to answer a question under Rule 30(c)?
1) to protect a privilege;
2) T enforce a limitation of the court;
3) to present a motion under 30(d)(3) that the examination is oppressive or done in bad faith.
How long may a deposition last under 30(d)?
Unless otherwise ordered, a deposition is limited to one day of seven hours maximum.
What happens under rule 30(g) if a party cancels a deposition that doesnt occur?
If a party who, expecting a deposition to occur, attends in person they may recovery reasonable expenses for attending, including attorney's fees, if the noticing party fails to:
a) attend and proceed with the deposition; and
b) Serve a subpoena on the non party deponent, who did not attend.
What conditions are required under Rule 32 to use deposition testimony at trial?
1) The party was present or represented at the taking of the deposition or had reasonable notice of it;
2) it is used to the extent that is admissible under the federal rules of evidence; and
3) the use is allowed by Rule 32(a).
What purposes can a party use deposition testimony for at trial?
1) Impeachment: A party may use a deposition to contradict or impeach the testimony given by the deponent as a witness.
2) The Witness is unavailable: See the whole list that qualifies a party as unavailable (essentially the same as for evidence class).
What are interrogatories under rule 33?
Written questions that must be answered in writing and then sent back to the other party. These only applies to parties, not non-parties.
What is the number and scope of interrogatories allowed under Rule 33?
Number: Unless otherwise agreed to, 25 are allowed.
Scope: An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to act.
What can an interrogatory be used for?
It may be used to any extent allowed by the federal rules of evidence. Such as cross-examinations, impeachment, admissions, etc.
What is a contention interrogatory? And are they allowed?
Contention Interrogatories are designed to discover the factual basis of the allegations in a complaint, answer or counterclaim, or to determine the theory of the opposing parties case.
These are allowed by most courts.
What is the procedure for producing documents under Rule 34?
a) must describe with reasonable particularity each item or category or items to be inspected;
b) Must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and
c) May specify the form or forms in which electronically stored information is to be produced.
Rule 34: Producing Documents:
A party may serve another party a request within the scope of rule 26(b) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding parties possession, custody or control:
a) electronic data;
b) tangible items;
What procedures apply to requesting electronic documents or data under Rule 34?
a) Must produce them in the way they are kept for the normal course of business;
b) If the request does not specify then it must be produced in a way reasonable or usual;
c) A party does not need to reproduce the documents in more than one form.
What is a cost-shifting order and how does it work under Rule 26(c)?
Typically the responding party must pay for the cost of producing the documents for discovery, but sometimes the court can examine 7 factors to determine if a cost shifting order should be granted. They are:
1) Extent that the request is narrowly tailored;
2) Availability of information elsewhere;
3) Cost of production vs amount in controversy;
4) Total cost of production compared to the resources the party has;
5) Relative ability of each party to control costs and incentives to do so;
6) Importance o the issue at stake;
7) Relative benefits to the information sought.
When can the court issue an order or a physical or mental examination under rule 35?
1) The court may order a party whose mental or physical condition is in controversy to submit to an examination by a licensed examiner.
2) The order:
(a) may be made only with good cause and on notice to all parties;
(b) must specify the time, place, manner, conditions, and scope of the examination. As well as list who the examiner is.
Rule 36: Requests for Admission - what does it say and what is it used for?
a) Scope - A party may serve on any other party a written request to admit the truth of matters relating to:
1) Facts, the application of law to fact, or opinions about either; and
2) The genuineness of any described documents.
b) A matter is admitted unless, within 30 days, the party serves a written answer.
Basically, this rule is used to remove potential conflicts before trial by allowing both parties to agree to save time later on.
Rule 37(a): A motion to compel discovery -
If a party fails to make a disclosure required by Rule 26(a) [mandatory disclosures], any other party may move to compel disclosure or appropriate sanctions, or both.
Rule 37(b): A motion to Compel a Discovery Response
A party seeking discovery may move for an order compelling an answer, designation, production, or inspection.
This motion may be made if:
a) A deponent fails to answer a question correctly asked;
b) A corporation fails to make a designated respondent;
c) A party fails to answer an interrogatory;
d) A party fails to respond that inspection will be permitted.
What are Rule 45: Subpoenas used for?
Used to compel the attendance of non-parties because they are not bound to attend without it.
What are the requirements of a Rule 45 Subpoena?
Every Subpoena must:
a) State that the court has issued it;
b) State the title of each action;
c) Command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents; or allow the inspection of a premises.