Discovery Rules

Question 1

Rule 16(b)-scheduling order

Answer 1

Court issues pretrial scheduling order within 90 days of service on any defendant or within 60 days of any defendant’s appearance

Question 2

Rule 16(b)(3)(A)-scheduling order must

Answer 2

Scheduling order must limit time for 1) joining parties, 2) amending pleadings, 3) completing discovery, and 4) filing motions [it may also cover other subjects such as method of electronic discovery, pretrial conference dates, discovery timetables, etc.]

Question 3

Rule 26(f)-conference

Answer 3

Parties must meet at least 21 days before due date of 16(b) scheduling order to discuss the process of discovery and submit a report to the Court

Question 4

Rule 26(a)(1)-initial disclosures

Answer 4

Required Disclosures of information “reasonably available”; 1) people who have information to support a party’s claims/defenses, 2) documents to support a party’s claims, 3) computation of party’s damages, 4) insurance that may cover the litigation. Must be disclosed within 14 days of 26(f) conference unless stipulated otherwise

Question 5

Rule 26(a)(2), (b)(4)-experts

Answer 5

Experts; A party may obtain discovery from testifying experts. A party may not obtain discovery from consulting experts who will not testify. Parties must disclose all testifying experts and provide a report of their testimony. Reports due no later than 90 days before trail readiness date + within 30 days after disclosure for rebuttal testimony

Question 6

Rule 26(a)(3)-pretrial disclosures

Answer 6

Pretrial Disclosures: At least 30 days before trial, parties must disclose trial witness lists, exhibit lists, and deposition excerpts. Objections are due within 14 days

Question 7

Rule 26(d)-discovery timing

Answer 7

Parties must have 26(f) conference before starting discovery EXCEPT document requests can be prepared and served 21 days after service, but not yet answered

Question 8

Rule 26(b)(1)-limits

Answer 8

Can discover any matter, not privileged, relevant to a claim or defense of any party as long as it is proportional to needs of the case [importance of issues at stake, amount in controversy, resources, etc.]

Question 9

Rule 26(b)(2)(C), Rule 26(c)-unreasonable burden

Answer 9

Limits to Discovery; unreasonably duplicative/burdensome/harassing discovery may be limited by the court. Limits to discovery can be modified by the party (in negotiation). The court by order can alter limits on depositions and interrogatories and by local rule or order limit requests for admissions

Question 10

Rule 33(a)(1)-int. limits

Answer 10

25 limit unless stipulated otherwise

Question 11

Rule 33(b)(5)-signing ints.

Answer 11

Answers are to be signed by the responding party. Objections are signed by the party’s lawyer.

Question 12

Rule 33(b)(2)-must reply to ints.

Answer 12

Due within 30 days of service (asking)

Question 13

Rule 33(a)(2)-limits to ints.

Answer 13

Interrogatories seeking purely legal info are forbidden, but questions about facts or the application of the law to facts are expressly allowed and thus not violation of work product.

Question 14

Rule 33(d)-types of response

Answer 14

A party may respond with documents rather than a written response

Question 15

Rule 34(c)-doc request targets

Answer 15

Requests (which are not expressly limited) are to parties only. Third party requests are made through a Rule 45 subpoena.

Question 16

Rule 34(a)(1)-how to ask for doc reqs

Answer 16

Must ask for documents in the “possession, custody, or control” of the party

Question 17

Rule 34(b)(2)-replies to doc reqs

Answer 17

Due within 30 days of service (asking)

Question 18

Rule 34(b)(2)(E)(i)-production

Answer 18

should be produced as they “are kept in usual course of business” or organized to “correspond to the categories in the request”

Question 19

Rule 35(a)-who orders an exam?

Answer 19

The court can order an independent mental/physical exam when condition of a party (P or D) is in controversy.

Question 20

Rule 35(a)(2)-requirements for exam

Answer 20

Requires a showing of “good cause”

Question 21

Rule 36(a)-limit to admissions

Answer 21

Requests to admit facts are not expressly limited and answers are due within 30 days of service.

Question 22

Rule 36(a)(4-5)-respond to reqs

Answer 22

Responding party may in good faith admit, deny, or object in whole or in part to each request.

Question 23

Rule 26(e)-supplementing

Answer 23

Parties have a duty to supplement answers/disclosures when the additional or correct information has not already surfaced to the other parties in discovery or in writing. This does not apply to deposition of lay witnesses.

Question 24

Rule 30(a)(2)(A)-depo limit

Answer 24

Limit of 10 depositions per side unless otherwise stipulated, and no witness can be deposed more than once.

Question 25

Rule 30(d)(1)-how long

Answer 25

limit of one 7 hour day

Question 26

Rule 30(a)(1)-who to depo

Answer 26

May depose other parties and third-party witnesses (compelled through rule 45 subpoena).

Question 27

Rule 30(b)(1)-notice

Answer 27

Requires reasonable prior written notice to every other party.

Question 28

Rule 30(b)(6)-orgs

Answer 28

may obtain testimony of an organization by designating subjects of inquiry and deposing 1 or more people to testify on the organization's knowledge on the subjects

Question 29

Rule 30(c)(2)-refuse to answer

Answer 29

can refuse to answer only when preserving a privilege or enforcing a court ordered limit, or to present a motion for a protective order.

Question 30

Rule 32(a)(2-3)-use of depos

Answer 30

depositions can be used by any party for impeachment of deponent and/or by an adverse party for any purpose.

Question 31

Rule 32(d)(3)(B)-objections to depos

Answer 31

objections to the form or question/other matter that can be addressed upon timely objection at a deposition are waived unless made at the deposition.

Question 32

Rule 32(d)(3)(A)-non waived objections

Answer 32

objections to competency/relevance are not waived if not made at deposition.

Question 33

Rule 26(b)(2)(B)-electronic discovery burden

Answer 33

If undue burden/cost, a party may object to producing electronic discovery. If motion to compel, must prove burden. If still forced to produce, the court may impose limits.

Question 34

Rule 37(e)-failure to keep e.docs

Answer 34

If electronic information is lost that should have been preserved due to a party's failure to take reasonable steps AND it can't be restored/replaced, a court may (upon finding prejudice) order measures no greater than necessary to cure the prejudice OR, if intent to deprive is found, the court may 1) presume the lost information was unfavorable 2) instruct the jury as such or 3) dismiss the action/enter default judgement

Question 35

Rule 26(b)(5)(A-B)-accidental production of privileged docs

Answer 35

if information is produced that is subject to a claim of privilege/protection, party making the claim notifies recipient and they must return/destroy the information. Must keep a privilege log.

Question 36

Standard 503

Answer 36

Protected:confidential communication for the purpose of legal advice from a licensed lawyer regardless of who is initiating the conversation (also more broad when allowing agents/common interest parties to fall under privilege)

Question 37

Wigmore

Answer 37

Protected: legal advice from a licensed lawyer acting in capacity as lawyer that is a confidential communication by the client (unless waived)

Question 38

Rule 26(b)(3)-work product

Answer 38

Protected: docs and tangible tithings prepared in anticipation of litigation or trial by/for a party/representative UNLESS otherwise discoverable, substantial need, and the information cannot be found another way w/out undue burden

Question 39

Rule 26(c)(1-2)-protective orders

Answer 39

"for good cause" a court may at its discretion: forbid discovery, impose restrictions, prescribe method, limit matters, limit people present, require sealing, protect confidential info, request simultaneous filing. If order for protection denied, may order party to permit discovery

Question 40

Rule 26(g)-signature (Rule 11 equiv.)

Answer 40

signature on discovery request/response signifies it is consistent with rules, good faith, proper, and not unreasonable to the best of the signer's knowledge. Sanctions for violating this are mandatory (attorney's fees may be awarded)

Question 41

Rule 37(a)(2)-where to make motions to compel

Answer 41

motions at another party = filed in court where action is pending, motions at non-party = filed in court where discovery will be taken

Question 42

Rule 37(a)(1)-work things out

Answer 42

the parties must attempt to negotiate before filing an order to compel

Question 43

Rule 37(a)(5)-sanctions for motions to compel

Answer 43

the party that loses on the motion must face a sanction (unless motivation for moving/objection is substantially justified)

Question 44

Rule 37(b)-failure to obey court order

Answer 44

disobedient party must at least pay reasonable expenses of other side. May also extend other sanctions (orders striking out pleadings, excluding evidence, dismissing the action, default judgement, etc.)

Question 45

Rule 37(c)(1)-failure to disclose mandatory info

Answer 45

unless justified/harmless, party is not permitted to use non-disclosed info in evidence. Other sanctions may also be entered

Question 46

Rule 37(c)(2)-failure to admit

Answer 46

if requesting party proves what refusing party wouldn't admit, can recover reasonable expenses unless good cause for failure to admit

Question 47

Rule 37(d)-"no show"

Answer 47

failure to appear/respond results in reasonable expenses for the other side. May also add other sanctions

Question 48

Rule 37(f)-failure to participate in Rule 26(f) conference

Answer 48

if a party does not participate in good faith, court may require payment of reasonable expenses caused by the failure