Discovery/initial disclosures

Question 0

Criticisms of discovery system

Answer 0

-expensive (ex, doc discovery, lawyer time)
-time consuming
-can get hostile, ugly
(Battle of wits, avoidance) (unreas might deny cooperation)

Question 1

Purpose of discovery in US?

Answer 1

-get info about claims,let people build case
-preserving evidence
-allows to evaluate case, may lead to narrower claim
-equity, access to info to parties who may not have had it (if didn’t have big lawyer)
INFORMED EVALUATON OF THEIR CASE
-quicker & fairer settlements, if settle less expense of trial

Question 2

Twiqbol

Answer 2

More rigorous the plausibility standard for pleading a claim in federal court. Allows def. To avoidthe expense of discovery

Question 3

Alternatives

Answer 3

Get judge more involved <-judge hours would be enormous

Question 4

Percantage of lawyer time in discovery

Answer 4

90%

Question 5

Buffalo creek

Answer 5

Pittston used as a tool to keep them busy
Medical exams, psych exams, travel time, Pltf had to respond to,
Interrogatories, had # days to respond
Pittston tried to keep depos of its employees secret, was a huge weapon once public….what u hiding.

Question 8

6 tools in discovery arsenal

Answer 8

Depositions, interrogatories, requests for production, medical examinations, & requests for admission

Question 9

Initial disclosures Rule 26(a)(?)(?)

Answer 9

(A)(1)(a)
Requires parties to provide info to each other-(i)names, addresses, # of those likely to have discoverable info ALONG WITH subjects of that info
(ii)- copy of all docs, etc that party may use to support claim or defense
(iii) computation of damages
(iv) identify any insurance agreement

Question 10

Why do we have initial disclosures?

Answer 10

Gets out of way earlier
No good reason to hide type of info
Save $
Save time

Question 11

“Used to support” in rule 26(A)(1)(a)(ii)

What really mean.

Answer 11

Meant to make party only produce FAVORABLE evidence, no need to produce unfavorable evidence party does not intend to use

Question 12

Why you should be so conscious of discovery when you are drafting claims?

Answer 12

The way you frame pleadings, defenses, etc will define the scope of discovery.
Ex) put battery claim in u negl claim because can get more in dicovery- intent, prior relationship, what was said that is usu. irrelevant to a neg claim

Question 13

26(b)(2)(a)

Answer 13

Discovery scope
Allows court to broader discovery. Need good cause for Any matter RELEVANT to CLAIMS & Def. To go beyond needs a court order

Question 14

Initial disclosure is done & somewhere through trial Paulina finds another witness to green light. Does she have to do anything else as far as initial disclosures?

Answer 14

Supplemental disclosures- rule 26(e)(1)
Must supplement disclosures & response in a timely manner when party learns response was incorrect or incomplete in a material way.

Question 15

How are supplemental disclosures different from rule 11.

Answer 15

Here have to go back & amend, if u dont, prevented from using that witness. Failure to disclose or supplement results in nit being able to use it.t

Question 16

Rule 11 (reminder)

Answer 16

Signing pleadings, motions & other papers: by signing certifying not presented for any improper manner, claims are warranted, factually supported and denials are warranted by evidence.

Question 17

What comes after initial disclosures?

Answer 17

Scheduling conference order:
gives dates for different stages of discovery.
Rule 16
(Judge ask how want to handle e-discovery, sets deadlines, addresses scope, custodians, types of media relevant)

Question 22

Rule 26

Answer 22

Broad outline of discovery rights

Question 23

Definition

Answer 23

“Any nonprivileged matter that is relevant to any party’s claim or defense - including the existence, description, nature, custody, condition & location of any documents or other tangibles.”

Question 24

Rule 26(f)

Answer 24

REQUIRES parties talk about electronically stored info (12-2006)

Question 25

Relevance language of rule 26

United oil v. Parts associates

Answer 25

“Parties may obtain dicovery of any matter, not privileged, that Is relevant to the claim or defense of any party”

FRCP RULE 26(b)(1)

Question 26

Relevance STANDARD-where does it come from?

United oil v. Parts Assoc

Answer 26

Parties have to make a “rudimentary showing of relevance by articulating a COGENT NEXUS between a claim or defense and the piece of information sought-a request that is RELEVANT ON ITS FACE.”
Comes for the Federal Rules of EVIDENCE

Question 27

Is relevance standard of discovery stage the same as at trial.

Answer 27

No. It’s higher at trial.

Question 28

How court applied relevance standard in united oil?

Answer 28

Pltf was suing for indemnity & contribution saying parts assoc KNeW their product was dangerous(liver cancer) & didn’t warn.
Pltf, since party requesting has burden to show relevance, then burden shifts to def to say not relevant.
Court decides based on cogent nexus , so have to turn over docs where same chemical and damage to liver (not where heart damage) (can’t just turn over cuz makes them look like bastards! )

Question 29

Can always find out if relevant at trial

Answer 29

& figure out later

Question 30

What if def. says the request for discovery is too burdensome

Answer 30

Court will say, not specific enough. Need to be very specific.