Pretrial Proced & Discovery Flashcards
(32 cards)
When may discovery requests b served?
Discovery requests generally cannot be served until the parties have held an initial planning conference to arrange for initial disclosures and prepare a discovery plan.
Depositions
Written or oral examination of party or witness under oath
10 per party
Request for production
Request served on party (or subpoena served on nonparty) to produce & allow inspection of documents, electronic information, tangible items, or land
No limit
Written response due within 30 days of service
Interrogatories
Written questions served on party
Serve up to 25
Written responses due within 30 days of service
Requests for Admission
Requests served on other party to admit truth of facts within scope of discovery
No limit
Written response due within 30 days of service
==> A matter is deemed to be admitted unless the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or her attorney.
Physical/ mental exam
Order by court or parties’ agreement for physical or mental examination of party if those conditions are in controversy
The court where a lawsuit is pending may order a physical or mental examination of a party when
(1) that party’s condition is in controversy,
(2) the motion is based on good cause, and
(3) the order provides notice specifying the time, place, manner, conditions, and scope of the exam, as well as the person who will perform it.
A party may conduct an oral deposition without the court’s leave or the parties’ stipulation unless …
(1) the deposition exceeds the 10-deposition limit,
(2) the deposition is sought before the initial planning conference, or
(3) the deponent was already deposed in the case.
Summary judgment should be granted if…
the movant shows that …
(1) there is no genuine dispute as to any material fact and
(2) the movant is entitled to judgment as a matter of law.
Voluntary Dismissal
π may dismiss suit without court order when:
-notice of dismissal filed before ∆ serves answer or summary judgment motion
or
-all parties sign stipulation of dismissal
π may request court order to dismiss suit unless: ∆’s counterclaim cannot be independently adjudicated
EFFECT: dismissal w/o prejudice unless:
-π previously dismissed federal or state action based on same claim or
-notice or stipulation states otherwise
Involuntary Dismissal
∆ may move to dismiss suit if π failed to:
-prosecute own action or
-comply with rules or court order
∆ may move to dismiss suit via:
-pre-answer motion
judgment on the pleadings or
-summary judgment
EFFECT: Dismissal with prejudice unless:
-court order states otherwise or
-based on lack of jurisdiction, improper venue, or failure to join required party
MSJ Deadline
Motion may be filed until 30 days after close of discovery OR time set by local rule or court
Two-dismissal rule
This rule applies when:
the plaintiff’s first action was voluntarily dismissed without a court order in state or federal court
and
the plaintiff brought a second action on the same claim in federal court and filed a notice of voluntary dismissal.
Rationale: The two-dismissal rule’s purpose is to prevent the plaintiff from harassing the defendant by perpetually filing and dismissing the same claim. Since a court order or stipulation does not pose this risk, the rule does not apply when the second action is dismissed by these methods.
When must a court clerk enter a default J
A court clerk must enter a default judgment when
(1) the plaintiff’s claim is for a sum certain or a sum that can be made certain by calculation,
(2) the plaintiff’s request for default judgment includes an affidavit establishing the amount due,
(3) the defendant failed to appear, and
(4) the defendant is not legally incompetent or a minor.
Absent the parties’ stipulation, a party may voluntarily dismiss a crossclaim, counterclaim, or third-party claim without a court order…
by unilaterally filing a notice of dismissal …
(1) before a responsive pleading is served or
(2) if a responsive pleading is not served, before evidence is introduced at a hearing or trial.
initial disclosures
Generally—subject to certain exceptions, must disclose:
1. information regarding individuals having discoverable information,
2. documents supporting claims/defenses,
3. computation and backup of damages,
4. relevant insurance agreement for satisfying judgment
==> Standard:
information reasonably available to it,
and
party not excused for not fully investigating case, challenges to insufficiency of another party’s disclosures, or
because another party failed to disclose
Timing—generally within 14 days after the parties’ discovery conference
==> parties may agree to modify the time in which initial disclosures must be made.
Expert testimony
- Generally—identify expert witnesses and produce expert report subject to certain
requirements - Timing—at least 90 days before trial or 30 days after disclosure of opposing party’s
expert evidence on same subject matter
Pre-trial disclosures
evidence to be presented at trial other than for impeachment
- Generally—witness list by testimony or deposition, and documents and exhibits
- Timing—at least 30 days before trial
- Objections—within 14 days after disclosures are made or else waived unless excused by court for good cause or pursuant to relevance rules of the FRE
What happens when a D files a notice of removal
==> the case is automatically transferred to federal court
==> subsequently, the court may remand a claim to the state court if the court determines that it lacks subject matter jurisdiction over the claim, or the defendant failed to follow proper procedures in removing the action to federal court
** in cases of removal based on federal question jurisdiction, only those defendants against whom the federal claim is asserted must join in or consent to the removal.
FNC
Forum non conveniens is a common-law doctrine that allows a court to dismiss an action—even if PJ and venue are otherwise proper—if the court finds that the forum would be too inconvenient for parties and witnesses, and that another more convenient venue is available.
==> The appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is to seek dismissal through the doctrine of forum non conveniens
Review of remand orders
A remand order is generally not reviewable on appeal or otherwise
EXCEPT
- for an order remanding a civil rights case removed pursuant to § 1443
-or a remand order in a class action, (if the application for review is made to the court of appeals not more than 10 days after the entry of the order).
A party may provide notice of and conduct an oral deposition without the court’s leave or the parties’ stipulation unless….
(1) the deposition **exceeds the 10-deposition limit, **
(2) the deposition is** sought before the initial planning conference**, or
(3) the deponent was already deposed in the case.
Sanctions may be appropriate if a party failed to preserve electronically stored information (ESI) that:
a.** should have been preserved **in the anticipation or conduct of litigation
b. **is lost because the party failed to take reasonable steps **to preserve it
and
c. cannot be replaced or restored through additional discovery.
If the court finds that the party intentionally deprived the requesting party of the ESI, the court may:
- **presume **that the lost ESI was unfavorable to the party that failed to preserve it
- instruct the jury that it may or must presume the lost ESI was unfavorable to that party
or
4. dismiss the action or enter a default judgment against that party
If ESI destruction was NOT intentional
A court may order measures** no greater than necessary to cure prejudice **caused by a party’s failure to preserve electronically stored information
