Pretrial Procedure and Discovery

Question 1

Mandatory Disclosures

Answer 1

Rule 26(a) requires the parties to make certain disclosures:

Initial disclosures
Disclosures of expert testimony 90 days before trial
Pretrial disclosures 30 days before trial
The three sets of disclosures are mandatory and must be made even if an opposing party does not ask for such information. Unless otherwise ordered by the court, the disclosures must be in writing, signed, and served.

Question 2

Discovery Scope and Limits

Answer 2

Rule 26 provides rules establishing the scope and limitations of discovery. In addition to obtaining information under the mandatory disclosure rules, parties may use a variety of discovery methods provided in Rules 27–36.

Question 3

Spoliation of Evidence

Answer 3

Spoliation of evidence is the negligent or intentional destruction or significant alteration of evidence required for discovery. Spoliation of evidence may result in sanctions under Rule 37, as well as liability under an independent tort cause of action.

Question 4

Suitable License and Certified Examiner

Answer 4

A suitably licensed or certified examiner includes physicians and other professionals licensed to report on physical or mental conditions, such as dentists and psychologists.

Question 5

Use of Discovery at Trial

Answer 5

Information gathered through the use of discovery devices is not automatically admissible as evidence at trial. To be admissible, the information must comply with the evidentiary rules. See the Themis Evidence outline for a complete discussion.

Question 6

Standard of Review

Answer 6

The abuse-of-discretion standard of review is a highly deferential standard of review under which an appellate court can reverse a trial judge’s discretionary ruling only if it was unreasonable or arbitrary.

Question 7

Case Management

Answer 7

Under Rule 16(a), the court may direct counsel and unrepresented parties to appear for one or more pretrial conferences for such purposes as:

1. Expediting disposition of the action
2. Effective case management
3. Facilitating settlement

Question 8

Without Prejudice

Answer 8

A dismissal is without prejudice when the plaintiff is permitted to sue the defendant on the same claim in the future.

Question 9

Genuine Issue of Material Fact

Answer 9

A genuine issue of material fact exists when a reasonable jury could return a verdict in favor of the nonmoving party.

Question 10

Partial Summary Judgment

Answer 10

A partial summary judgment is a court’s judgment for one party and against another on one or more—but not all—issues without a full trial.

Question 11

Declaratory Judgment

Answer 11

A declaratory judgment is a ruling in which the court tells the parties to a dispute what their rights, responsibilities, or obligations are, without awarding damages or ordering the parties to do or refrain from doing anything.