Discovery

Question 1

Scope of Discovery - Standard

Answer 1

Anything relevant to claim or defense in the pleading & must be proportional to needs of the case

• Privileged Material not dicoverable

Question 2

Discovery - Relevance

Answer 2

Party can discover inadmissible evidence if relevant and proportional to needs of case

Relevant - it is likely to make any fact in dispute more or less likely to be true, regardless of whither it is admissible

Question 3

Scope of Dicovery - Proportional

Answer 3

Proportional to needs of Case

• Party can’t refuse discovery by making boilerplate objection that its not proportional

Question 4

Scope of DIcovery - Work Product

Answer 4

Material prepared in anticipation of litigation

• Absolute protection from discovery by opposing counsel (Work Product Doctrine)
  
  • Mental Impressions
  • Opinions
  • Conclusions
  • Legal Theories
• Witness Statements May be Discovered if there is substantial need & info isn’t otherwise avail.

Question 5

Scope of DIscovery - Objections

Answer 5

Objections must be Stated with Specificity

• the grounds for objection & whether any responsive materials are being withheld

Question 6

Required Discovery

Answer 6

Must be produced even if opposing P doesn’t explicitly request the info

Question 7

Required Discovery - Initial Disclosure

Answer 7

Initial Disclosures - Within 14 days of rule 26(f) conference

• List of relevant witnesses - name and address (if known) and #
• Documents supporting claims or defenses - copies or electronically stored information
• Computation of Damages
• Relevant Insurance Policy
  
  • any insurance agreement where insurance business may be liable to:
    
    • satisfy all or part of possible judgment in the action or
    • to indemnification or reimbursement for payments made to satisfy the judgment

Question 8

Required Discovery - Pretrial

Answer 8

Must give detailed info about trial evidence no later than 30 days b/f trial including:

• documents and
• ID of witnesses to testify

Question 9

When are discovery tools available?

Answer 9

Only after Rule 26(f) Conference

Question 10

Depositions

Answer 10

Witnesses out of court testimony that is reduced to writing for later use in court or for discovery purposes.

• Deponent gives sworn oral answers to questions by counsel

Question 11

How many depositions is each party entitled to ?

Answer 11

10 but the court may grant more

Question 12

Deposition - Non party

Answer 12

Not required to attend without subpoena

Question 13

Depositions - Party

Answer 13

No subpoena required

• Notice of deposition properly served on a Party is sufficient to compel his appearance at the deposition

Question 14

Deposition - Limitations

Answer 14

1. Time Limit

• Can’t exceed 1 day of 7 hours
• BUT ct. must allow additional time if needed to fairly examine deponent, another person, or any other circ.

1. No duplicate depositions - can’t depose same pers. twice
2. Max 100 Miles from residence or place of business for nonparty

Question 15

Depositions - Experts

Answer 15

Trial expert - may be deposed (expert whose opinion may be presented at trial)

Consulting expert - can NOT be deposed (expert retained in anticipation of lit. but wont testify at trial (Unless exceptional need)

Question 16

How can a deposition be used at trial ?

Answer 16

• Impeach deponent (Inconsistent testimony)
• Any Purpose if deponent is an adverse party or deponent is unavailable at trial

Question 17

Interrogatories

Answer 17

Questions written by 1 P and sent to another (Can never use against non P)

Question 18

Interrogatories - Requirements

Answer 18

1. Must respond or object within 30 days - answers must be in writing, under oath
2. Limit of 25 - can’t serve more then 25 questions without ct. approval or stipulation by parties
3. Duty to reasonably investigate and find out the answers to the questions
   
   • If answer is in business records and would be burdensome to find, the answering party can hand over records instead of going through the records herself

Question 19

Request to Produce Physical Material or Permit Entry onto Property for Inspection

Answer 19

• Nonparty - Subpoena required
• Must be described with reasonable particularity

Question 20

A party served with a request for production has how many days to respond?

Answer 20

Must respond within 30 days of service

• either that material will be produced or stating objection to request

Question 21

Request to Produce - Early Request to Produce

Answer 21

Early request to produce

• b/f 26(f) conference, may serve only after 21 days of service of summons and complaint
• Responding party has 30 days after 26(f) Conf. to respond instead of 30 days after service of request

Question 22

How is a request for a mental or physical examination made?

Answer 22

Court order required, will be issued on show of:

• Health in actual controversy, AND
• Good cause Exists

Question 23

Request for Admission

Answer 23

Request by one party to admit truth of any discoverable matter.

• Commonly used to authorize documents
• Can’t be used against non party
• Must respond within 30 days
  
  • Admit
  • Deny - Fail to deny is an admission BUT party can amend if failure isn’t done in bad faith
  • Party may claim lack of information - only if made a reasonable inquiry

Question 24

When must Expert discovery disclosures occur?

Answer 24

Absent stipulation/order, must be made at least 90 days b/f date of trial

Question 25

Duty to Supplement

Answer 25

Party has affirmative duty to correct material mistake or admissions in required disclosures, interrogatories, Request to produce, and request for information

Question 26

Discovery - Procedure

Answer 26

Procedure (aka separate Certification) - Rule 11 does not apply to discovery * Every request must be signed by attorney - Signature certifies: * warranted * No improper purpose, And * Not unduly burdensome * Substantive answers signed under oath

Question 27

Discovery - Enforcement

Answer 27

1. Protective Order 2. Sanctions

Question 28

Protective Order

Answer 28

P that gets request for discovery objects on basis that its overburdensome or involves trade secrets

Question 29

Discovery Enforcement - Sanctions

Answer 29

P seeking sanctions must prove to court that she made GF effort to get info w/out court involvement

Question 30

Enforcement - Sanction Partial Violation

Answer 30

(Minimal Sanctions) P receiving discovery request answers some but objects to others and objections aren’t upheld by court * Motion to Compel - If P fails to comply with order compelling discovery there is a total viol, AND * Sanctions for total violation and recovery costs available

Question 31

Enforcement - Sanction Total Violation

Answer 31

(Severe Sanctions) P receiving request completely fails to respond * Recovery of costs, AND * other sanctions available when total violation * Contempt of court (except order to submit to phys./mental exam) * Establishment order - matters or designation of facts take as established for purpose of the action * Strike Pleadings in whole or in part * Disallow Evidence - prohibit disobeying P from supporting or opposing designated claims or defenses or from introduction of designated matters into evidence * Dismiss Plaintiffs case in whole or in part - BF required * Enter default judgment against disobedient party - BF required

Question 32

Enforcement - Failure to Preserve Electronically Stored Information

Answer 32

Failure to Preserve Electronically Stored Info in the anticipation or conduct of litigation * lost b/c failed to take reasonable steps to preserve & can’t be restored or replaced through add. disc. * Prejudice to another P - May order measures no greater than nec. to cure prejudice * Party acted with intent to deprive another party of info’s use in litigation ct. may: * presume lost info was unfavorable to P, * Instruct jury that it mat or must presume unfavorable to P, OR * Dismiss action or enter default judgment

Question 33

What must expert discovery disclosures contain?

Answer 33

1. Identity - Must ID expert who must be used at trial * Unless, Limited purpose expert only 30 days b/f date set for trial 2. Written Opinions - Must include data by experts and their qualifications 3. list of publications authored in previous 10 years 4. List of other cases 5. Compensation- Statement of comp. to be paid for the study & testimony in the case

Question 34

When must pretrial discovery disclosures be made?

Answer 34

30 days b/f trial

Question 35

What must pretrial discovery disclosures contain?

Answer 35

1. List of the witnesses she expects to call at trial 2. The witness she may call if the need arises 3. A list of witnesses whose testimony will be presented through a deposition or deposition transcript 4. A list of documents or phys. evidence she expects to present

Question 36

What can not be asked for in discovery?

Answer 36

Info. that is: 1. Irrelevant 2. violates priv. 3. is considered work product or causes an undue burden

Question 37

When is info. pertaining to experts undiscoverable?

Answer 37

When the expert is a non-testifying expert unless there is an extraordinary need to get the info.

Question 39

What information is discoverable for a testifying expert?

Answer 39

1. Info related to the final report 2. Co. relating to compensation for testimony 3. Co. relating to the data provided by the attorney to the expert 4. co. relating to any assumption the attorney asked the expert to make in developing the expert opinion