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1

What is discovery and what are the two main categories?

Process for parties to obtain information from each other and third parties. Categories:

  1. Mandatory disclosures; and
  2. Requests for information

2

What are the 3 mandatory disclosures and the deadline for each?

Unless otherwise ordered by the court:

  1. Initial disclosures: 14 days after discovery conference. FRCP 26(a)(1)(C)
    • If party was served or joined after Rule 26(f) conference, deadline is 30 days after being served or joined. FRCP 26(a)(1)(D)
  2. Expert testimony: 90 days before trial. FRCP 26(a)(2)(D)(i)
    • If evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), then the deadline is within 30 days after the other party's disclosure. FRCP 26(a)(2)(D)(ii)
  3. Pretrial disclosures: 30 days before trial. FRCP 26(a)(3)(B)

3

What are the 6 methods of discovery?

  1. Mandatory disclosures;
  2. Interrogatories;
  3. Request for Admissions;
  4. Request for Documents and Tangible Items;
  5. Requests for Mental or Physical Examinations; and
  6. Depositions

 

 

4

What type of information is discoverable?

 

Unless otherwise limited by court order, any information that is:

  1. Relevant;
  2. Proportional to the needs of the case; and
  3. Not privileged

FRCP 26(b)(1)

5

What type of information is not discoverable?

Information that is: 

  • Irrelevant;
  • Privileged; or
  • Work product (unless there is a showing of substantial need or undue hardship)

FRCP 26(b)(1)

6

When is information considered relevant for discovery purposes?

If it is likely to make any fact in the dispute more or less likely to be true, regardless of whether it is admissible.

 

7

What is the sequence of discovery?

  1. Rule 26(f) discovery conference
  2. Initial disclosures
  3. Party-initiated discovery
  4. Pretrial disclosures

 

8

What is a Rule 26(f) conference?

Initiates the discovery process. Requires that parties meet "as soon as practicable" to:

  1. Discuss claims & defenses; and 
  2. The possibility for settlement
    • If no settlement is reached, the parties must develop a discovery plan to submit to the court within 14 days

FRCP 26(f)

9

What is the deadline to hold a Rule 26(f) conference?

At least 21 days before scheduling conference is held. Rule 16(b)

10

Within 14 days of the Rule 26(f) conference, what initial disclosures do parties need to make?

  1. Contact info for individuals likely to have discoverable information;
  2. Documents that support a party's claims or defenses;
  3. Damages calculation & material upon which the calculation is based; and
  4. Insurance agreements that could satisfy all or part of a possible judgment

Rule 26(f)(2)

11

What is a Rule 16(b) conference?

By when must the Rule 16(b) conference occur?

Conference where the judge issues a scheduling order detailing deadlines for disclosures, filings, and other discovery issues. FRCP 16(a)

Deadline: As soon as is practicable, but within 90 days of D being served, or within 60 days of when D appears, whichever is earlier. FRCP 16(b)(2)

 

12

Do insurance agreements need be disclosed regardless of whether the other party asks for them?

Yes, insurance agreements are initial disclosures required by Rule 26(a)(1).

13

What are the different types of privilege?

  • Attorney/client
  • Doctor/patient
  • Spousal
  • Priest/penitent
  • Work product
  • Journalist/source
  • 5th Amendment protection against self-incrimination

14

Is privilege an absolute bar to disclosure?

Yes, absolute bar.

15

Doctor-patient privilege protects what type of information?

Any information disclosed by a patient to a doctor for the purpose of diagnosis or treatment (unless the patient consents to disclosure).

⚠️ Note: In some states, this privilege extends to hospitals and other medical practitioners.

16

What types of communications are protected by attorney-client privilege?

Communications that:

  1. Are between the attorney and client;
  2. Were intended to be, and were, in fact, kept confidential; and
  3. Were made for the purpose of obtaining or providing legal advice

17

What are the two types of spousal privilege?

  1. Testimonial
  2. Marital communication

18

What is protected by spousal privilege?

Protects a spouse from testifying as a witness against their spouse. May be waived by the spouse witness (not the spouse defendant). Not allowed when the spouses are opposing parties (e.g. divorce proceedings).

Trammel v. United States, 445 U.S. 40 (1980)

 

19

What is protected by the marital communication privilege?

All information communicated by one spouse to another during the marriage that was intended to be confidential (i.e. not repeated to a third party)

20

How must a party assert a privilege?

  1. Expressly make the claim; and
  2. Describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim

FRCP 26(b)(5)(A)

21

What is considered work product?

Any documents or tangible things prepared in anticipation of litigation or trial by or for another party or its representative.

FRCP 26(b)(3)(A)

 

 

22

Are documents prepared in the ordinary course of business considered work product? 

No.

23

When is work product discoverable?

If materials are:

  1. Otherwise discoverable under Rule 26(b)(1); and
  2. The party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

FRCP 26(b)(3)(A)

 

 

24

What type of work product is almost never discoverable?

Mental impressions, conclusions, opinions, and theories regarding the case.

FRCP 26(b)(3)(B)

25

What pretrial disclosures are required for expert and lay witnesses?

  • Expert: List of all expert witnesses and any info used to form the basis of their opinions. FRCP 26(a)(2) (Deadline: 90 days before trial, unless ordered otherwise) 
  • Lay: List of all witnesses and documents that will used as exhibits at trial. FRCP 26(a)(3) (Deadline: 30 days before trial, unless ordered otherwise )

 

26

If the expert was specially retained to provide expert testimony, what must their discovery disclosures contain?

  1. Name and contact information of the expert;
  2. Expert's final report;
  3. Expert's opinion and credentials;
  4. List of all other cases in which the expert has testified in (past 4 years only);
  5. Data relied on by the expert; and
  6. Amount of compensation to be paid for the study

FRCP 26(a)(2)

 

27

Are materials developed by non-testifying experts in anticipation of litigation discoverable?

No, unless exceptional circumstances make it impracticable for the parties to obtain the info by other means.

28

If the expert does not provide a written report and/or is non-testifying, what must their disclosures contain?

  1. The subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
  2. Summary of the facts and opinions to which the witness is expected to testify

FRCP 26(a)(2)(C)

29
Define

depositions

Proceedings held during the course of discovery (before a trial) where a witness is questioned orally by an attorney under oath

30

When is court permission required for depositions?

  1.  The deponent is in prison; or
  2. If the parties have not stipulated to the deposition and:
    1. The deposition would result in more than 10 depositions being taken under this rule or Rule 31 by P's, or by D's or by the third-party D's;
    2. The deponent has already been deposed in the case; or
    3. The party seeks to take the deposition before the time specified in Rule 26(d), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time

FRCP 30(a)(2)