Discovery (Module 10) Flashcards
(28 cards)
Initial Required Disclosures*
Names, numbers, and addresses of people with discoverable information if might be used to support claims or defenses
* Documents (ESI, tangible things) if might be used to support claims or defenses
* Need to be in your custody and control
1. Identities of persons with discoverable information that the party may use to support thier claims or denses
2. Documents and things that the party may use to support her claims or defensess
3. Computation of relief and along with supporting documents/ESI
4. Insurance Coverage
If a party fails to disclose material that was required to be disclosed, that party cannot use the undisclosed material in the case unless the failure to disclose was substantially justified or harmless.
Required Disclosures about an Expert Witness*
- Consulting experts (help with preparing case) need not be disclosed absent exceptional circumstances
- Testifying experts must be disclosed
- Written report by expert must be disclosed
- Draft reports and communication are protected work product
What Expert Written Reprt Includes
- Opinions that the EW will express;
- The bases for the opinions;
- The facts used to form the opinions;
- The EW’s qualifications; and
- EW compensation
If a party fails to disclose material that was required to be disclosed, she cannot use the EW in the case unless the failure was justified or harmless.
Earlier drafts of the EW report and communications between the lawyer and the EW are work product.
Deposition of Expert Witness
After disclosure, a party may take the deposition of the EW.
* Best practice is for that party to subpoena the EW to compel her attendance. (Without the subpoena, the expert may not show up even if the parties agreed to the deposition.)
* The deposing party ordinarily will bear the cost of the EW’s deposition. (The court will set a per-hour fee.)
Pretrial Disclosures
- No later tha 30 days before trial
- Identities of witnessess
- Documents
- No surprises
Rule 26(f) Conference
Once the initial disclosures have been made, parties may request information from one another. However, assuming that no court order or stipulation provides otherwise, a party cannot send discovery requests to another party until after the Rule 26(f) conference.
* Minor exception: requests to produce can be served earlier (once 21 days has passed since service of process). Such a request is treated as though it was served at the Rule 26(f) conference. Generally, the cost of responding to discovery is borne by the responding party.
Deposition
Live testimony of parties or nonparties, under oath, given in response to questions by counsel (questions can be written)
* Both parties and nonparties may be deposed
* A Subpoena Duces Tecum requires the deponent to bring requested materials with her to the deposition.
* Cannot take more than 10 depositions
* Cannot depose the same person twice without court approval or stipulation.
* Depositions cannot exceed one day of seven hours unless the court orders or parties stipulate otherwise.
Notice to Parties; Subpoenas to Nonparties (Depositions)
Parties = Notice of deposition
Nonparties = served with subpoena (if no subpoena, not compelled to attend)
* Unless a nonparty agrees otherwise, the farthest she can be required to travel is 100 miles from where the nonparty resides or is employed.
Deposing an Organization
- When the party is suing an organization, she may “notice” a deposition of an organization, describing the facts that she wants to discover in the deposition.
- The organization then must designate a person(s) to testify on that matter.
Use of Depositions in Trials
Subject to the rules of evidence, depositions may be used at trial:
* To impeach the deponent;
* For any purpose if the deponent is an adverse party; and
* For any purpose if the deponent (regardless of whether a party) is unavailable for trial (for example, illness, out of the country, etc.), unless that absence was procured by the party seeking to introduce the evidence
Interrogatories
Written questions to be answered in writing under oath
* Only to Parties
* Limited to 25 (unless court order or stipulation)
* Must answer in 30 days
* A party must answer interrogatories based upon information reasonably available.
* If the answers to interrogatories can be found in business records and the burden of finding the answers would be about the same for either party, the responding party can allow the requesting party to have access to the records.
* Contention interrogatories = interrogatories that inquire about legal contentions, are permitted.
Request to Produce
A request to produce asks a party to make available for review and copying documents or things, including electronically stored information (“ESI”), or to permit entry on designated property to inspect, measure, etc.
* ESI must be produced in the form that the requesting party specifies, but the responding party may object.
* The disclosing party must respond to the request in writing within 30 days of service, stating that the material will be produced or asserting objections.
* Only parties can be sent a request to produce, but a nonparty can be served with a subpoena to require her to disclose the same types of information.
Medical Exam (Physical or Mental)
- (1) Health must be in controversy
- (2) Good cause
- Court order required
- Parties only (or person in parties custody or control)
- The requesting party chooses the licensed medical professional to perform the exam.
Once the court orders a medical exam and the medical professional conducts the exam, the medical professional will write a report and give it to the requesting party. The person undergoing the exam can get a copy of the report. If the person requests and obtains the report, she must (on request) produce all medical reports by her own doctors about that same medical condition. She also waives any doctor-patient privilege that she may have had with her doctor regarding that condition.
Request for Admission
Written request asking opponent to admit facts
* Must respond within 30 days
* Response = Deny, deny knowledge, object, or admit
* Reasonable inquiry must be made before answering
* If a party fails to deny a proper request, the request is deemed admitted
Signature Requirement for Discovery
Parties sign substantive answers to discovery under oath. Rule 11 does not apply to discovery documents. However, by another rule every discovery request and response is signed by counsel certifying it is:
* Warranted
* Not interposed for an improper purpose AND
* Not unduly burdensome
Duty to Supplement
If new facts come to light after responding to discovery that make a required disclosure, interrogatory, request for production, or request for admission incomplete or incorrect, the party must supplement her response to discovery.
* This is a self-policing obligation.
Scope of Discovery*
A Party can discover anything relevant to claim or defense and proportional to needs of case
* Can be required to disclose information that hurts you (this is not the same for intial disclosures)
Protective Orders (ESI)
- D can move for protective order or object to discovery of ESI
- Undue costs are considerations for ESI
- Court may allocate costs if P shoes good cause to obtain despite costs
Work Product Protection
Material prepared “in anticipation of litigation”
Discovery of Work Product:
* Must show substantial need and hardship(Qualified Work Product)
* Opinion work product cannot be discovered (Absolute Work Product)
Notwithstanding work product, a party has a right to demand discovery of any previous statement that she has made regarding the case.
Asserting Privilege and Work Product
Must claim protection expressly
Must prepare privilege log
* Materials protected by date, author, recipient, and privilege or protection claimed.
* It must be in enough detail to allow the judge to determine whether the material is protected.
Inadvertent Disclosure of Privileged or Protected Material
- If a party inadvertently produces privileged or protected material, she should notify the other party promptly.
- The other party then must return, sequester, or destroy the material pending a decision by the court about whether there has been a waiver.
Party Seeks Protective Order (Enforcement of Discovery Rules)*
Must try to work out without court involvement
Court can:
* deny and order discovery
* limit discovery
* permit discovery within terms
Party Responds, but not fully (Enforcement of Discovery Rules)*
May be compelled to comply by court order
No Response to Discovery Request (Enforcement of Discovery Rules)*
Will be subject to various sanctions plus costs
