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74 Cards in this Set
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Ala. R. Civ. P. 26
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General Provisions Governing Discovery (a) Discovery Methods. (b) Discovery Scope and Limits. (c) Protective Orders. (d) Sequence and Timing of Discovery. (e) Supplementation of Responses. (f) Discovery Conference. (dc) District Court Rule.
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Ala. R. Civ. P. 26(a)
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"Discovery Methods." 1. Depositions upon oral examination; 2. Depositions upon written questions; 3. Written interrogatories; 4. Production of documents or things or permission to enter upon land or other property, for inspection and other purposes; 5. physical and mental examinations; and 6. Requests for admission.
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Ala. R. Civ. P. 26(b)
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"Discovery Scope and Limits." (1) "In General." (2) "Limitations." (3) "Insurance Agreements." (4) "Trial Preparation: Materials." (5) "Trial Preparation: Experts." (6) "Claims of Privilege or Protection of Trial-Preparation Materials."
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Ala. R. Civ. P. 26(b)(1) Part 1
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"In General." Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter...
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Ala. R. Civ. P. 26(b)(1) Part 2
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"In General." Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
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Ala. R. Civ. P. 26(b)(2)
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"Limitations" (A) ESI -- discovery exceptions for electronically stored information based on undue burden or cost. (B) Limits to discovery may be set by the court.
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Ala. R. Civ. P. 26(b)(2)(B) Limits to Discovery made by the Court
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(i) unreasonably cumulative or duplicative or another way is better; (ii) ample previous opportunity; (iii) unduly burdensome or expensive.
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Ala. R. Civ. P. 26(b)(2)(B)(iii) What the court takes into account in determination of unduly burdensome or expensive
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"…[T]he needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation."
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Ala. R. Civ. P. 26(b)(3)
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"Insurance Agreements." Insurance is discoverable. Discovery of insurance does not make the insurance admissible evidence. Applications for insurance are not discoverable.
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Ala. R. Civ. P. 26(b)(4)
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"Trial Preparation: Materials." Work product is generally not discoverable except for Rule 26(b)(5) expert testimony or except upon a showing of substantial need and undue hardship of other means. A court ordering such discovery shall also order certain protections against disclosure of mental impressions, legal theories, etc. A party does not have to make the required showing for his own prior statement on the action or its subject matter, and can get a court order compelling discovery if refused by another party.
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Ala. R. Civ. P. 26(b)(5)
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"Trial Preparation: Experts." Procedure for discovery of expert testimony. Generally a party can discover the list of experts expected to testify, but not those not anticipated to testify. A party can discover the facts known or opinions held by the testifying expert, but must show exceptional circumstances for the non-testifying expert. A party generally needs to pay the expert reasonable fees.
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Ala. R. Civ. P. 26(b)(6)
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"Claims of Privilege or Protection of Trial-Preparation Materials." Shall be made expressly and, upon written request by any other party, shall be supported by a description of the nature of the material. The claim shall be made within twenty-one (21) days of the date a request is served, unless otherwise ordered.
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Ala. R. Civ. P. 26(b)(6) When a claim of privilege or work-product is made.
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The claim shall be made within twenty-one (21) days of the date a request is served, unless otherwise ordered.
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Ala. R. Civ. P. 26(c)
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"Protective Orders." may be issued when justice requires to avoid a party's annoyance, embarrassment, oppression, undue burden, or expense.
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Ala. R. Civ. P. 26(c) Which court issues protective orders
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The court in which the action is pending, or alternatively, on matters relating to a deposition or production or inspection, the court in the circuit where the deposition or production or inspection is to be taken.
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Ala. R. Civ. P. 26(c) What a party may be protected from in discovery
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Annoyance, embarrassment, oppression, undue burden, or expense, as justice requires.
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Ala. R. Civ. P. 26(c) Eight (8) protective orders the court may issue for discovery (1-4)
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(1) that the discovery may not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place for the discovery; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into or that the scope of the discovery be limited to certain matters; (5) -(8) on another card.
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Ala. R. Civ. P. 26(c) Eight (8) protective orders the court may issue for discovery
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(1)-(4) on another card (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
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Ala. R. Civ. P. 26(c) What accompanies the motion for a protective order?
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A statement of the attorney for the moving party stating that the attorney, before filing the motion, has endeavored to resolve the subject of the discovery motion through correspondence or discussions with opposing counsel or, if the opposing party is not represented by counsel, with the opposing party.
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Ala. R. Civ. P. 26(d)
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"Sequence and Timing of Discovery." Unless ordered otherwise by the court, discovery may proceed in any sequence, and one party's discovery shall not operate to delay any other party's discovery.
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Ala. R. Civ. P. 26(e)
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"Supplementation of Responses." Generally, a party who made a complete response to discovery has no duty to supplement that response thereafter, including information thereafter acquired. This rule deals with the three (3) exceptions to that general rule.
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Ala. R. Civ. P. 26(e)(1)
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A party is under a duty seasonably to supplement the response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the expert witness is expected to testify, and the substance of the witness's testimony.
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Ala. R. Civ. P. 26(e)(2)
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A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which the party (A) knows that the response was incorrect when made, or (B) knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
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Ala. R. Civ. P. 26(e)(3)
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A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.
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Ala. R. Civ. P. 26(f)
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"Discovery Conference." Conducted to produce a discovery plan submitted to the court, which will issue a discovery order.
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Ala. R. Civ. P. 26(dc)
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Rule 26 applies in district courts. Exceptions: no physical or mental examinations; discovery methods are available only in the discretion of the court on motion of the seeking party or by agreement of the parties; unless parties agree otherwise, the court does not order deposition except when the witness will not be available to testify at trial.
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Ala. R. Civ. P. 37(a)
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Failure to Make Discovery: Sanctions. (a) Motion for Order Compelling Discovery. (1) Appropriate Court. (2) Motion. (3) Evasive or Incomplete Answer. (4) Award of Expenses of Motion.
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Ala. R. Civ. P. 37(b)
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Failure to Make Discovery: Sanctions. (b) Failure to Comply With Order. (1) Sanctions by a Circuit Judge or Court in Place Where Deposition Is Taken or Production Sought. (2) Sanctions by Court in Which Action Is Pending.
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Ala. R. Civ. P. 37(b)(2)(A) Court order establishing facts
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An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
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Ala. R. Civ. P. 37(b)(2)(B) Court order disallowing claims or defenses
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An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence.
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Ala. R. Civ. P. 37(b)(2)(C) Court order striking pleadings or staying proceedings, or dismissal or default.
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An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
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Ala. R. Civ. P. 37(b)(2)(D) Court order for contempt of court
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Except for failing to submit to physical or mental examination.
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Ala. R. Civ. P. 37(b)(2)(E) Producing another for examination
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The sanctions apply for a party to produce a non-party for examination unless the noncompliant party can show the inability to produce the person for examination.
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Ala. R. Civ. P. 45
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Subpoena. (a) Form; issuance. (b) Service. (c) Protection of Persons Subject to Subpoenas. (d) Duties in Responding to Subpoena. (e) Contempt. (dc) District Court Rule.
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Ala. R. Civ. P. 45(a)(1) Part 1
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"Form; issuance." Subpoenas state the name of the issuing court, the title of the action, the name of the court where the action is pending, a civil action number, the directed action, and text from Rule 45(c) and Rule 45(d)
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Ala. R. Civ. P. 45(a)(1) Part 2 - What a subpoena can direct
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1. To attend and testify; 2. to produce and permit inspection, copying, testing, or sampling of designated books, documents, ESI, or tangible things in the possession, custody, or control of the subpoenaed person; or 3. to permit inspection of premises at a designated time and place specified
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Ala. R. Civ. P. 45(a)(2)
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A subpoena commanding attendance at a trial or hearing or attendance at a deposition shall issue from the court in which the action is pending.
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Ala. R. Civ. P. 45(a)(3)
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The clerk issues subpoenas to the requesting party; there are additional requirements for subpoenas for production, inspection, copying, testing, or sampling separate from a subpoena commanding attendance.
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Ala. R. Civ. P. 45(a)(3)(A) Part 1
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"Notice of Intent to Serve Subpoena for Production or Inspection." The party seeking the subpoena for production, inspection, copying, testing, or sampling shall serve notice to every other party of the intent to serve such subpoena fifteen (15) days after service, with the proposed subpoena attached. The court may adjust the notice period.
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Ala. R. Civ. P. 45(a)(3)(A) Part 2
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"Notice of Intent to Serve Subpoena for Production or Inspection." Notice may be served without leave of court after Rule 4-4.4 service of the summons and complaint when 1. the defendant has previously sought discovery or 2. forty-five (45) days have passed since service of the summons and complaint.
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Ala. R. Civ. P. 45(a)(3)(B)
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"Objection to Issuance of Subpoena for Production or Inspection." Any person or party may serve an objection to the issuance of a subpoena for production, inspection, copying, testing, or sampling within ten (10) days of service of notice, which prevents issue of the subpoena. The objection may trigger a Rule 37(a) motion with respect to the objection. Absent objection, the subpoena issues at the end of fifteen (15) days from service of notice.
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Ala. R. Civ. P. 45(a)(3)(C)
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"Content of Subpoena for Production or Inspection." The subpoena shall be directed at a person at a stated address (or as close to that as possible). The subpoena shall set forth the items to be produced, inspected, copied, tested, or sampled, either by item or category described with reasonable particularity. The subpoena shall specify a reasonable time generally > fifteen (15) days, and the manner of making the inspection, production, copying, testing, sampling, and performing the related acts. Subpoenas take place where the items generally are or at another reasonable place designated by recipient. A subpoena may give the option to deliver or mail legible copies, and the recipient may condition this delivery on payment in advance of reasonable costs. Any other party shall have the right to be present at the time of compliance with the subpoena and the subpoena shall advise the recipient of the right to objection.
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Ala. R. Civ. P. 45(a)(3)(D)
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"Availability of Copies of Documents." If a party serving subpoena obtains copies of documents, ESI, or things, then that party shall make duplicate copies available at the request of any other party upon payment of the reasonable cost of making the copies.
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Ala. R. Civ. P. 45(b)(1) (for service of subpoena)
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"Service." Generally, a subpoena may be served by a sheriff, deputy sheriif, or any person over eighteen (18) years old who is not a party. Service may be upon the person, or by leaving a copy at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. If attendance is commanded more than one hundred (100) miles from the residence, the service of subpoena includes fees for one day's attendance and mileage reimbursement. A Rule 35(a)(3) Prior Notice of Intent to Secure the Issuance of a Subpoena shall be served IAW Rule 5(b).
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Ala. R. Civ. P. 45(b)(1) (for service of notice of intent to subpoena)
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Service of Notice of Intent to Secure a Subpoena under Rule 35(a)(3). Prior Notice of Intent to Secure the Issuance of a Subpoena to command production of documents and things or inspection of premises before trial shall be served IAW Rule 5(b).
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Ala. R. Civ. P. 45(b)(2)
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"Service." Part 2. Subject to the provisions for travel beyond one hundred (100) miles, a subpoena may be served anywhere within the state.
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Ala. R. Civ. P. 45(b)(3)
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Proof of service when necessary shall be made by filing with the clerk of the court by which the subpoena is issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service.
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Ala. R. Civ. P. 45(c)
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"Protection of Persons Subject to Subpoenas." (1) Those issuing subpoena shall take care not to impose undue burden. (2) A person under subpoena does not have to attend in person unless specifically ordered to appear. (3) There are specific protections for specific situations.
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Ala. R. Civ. P. 45(c)(1) and (2)
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"Protection of Persons Subject to Subpoenas." A party driving subpoena shall take reasonable steps to avoid imposing undue burden. A person under subpoena to produce or permit does not have to attend in person unless specifically ordered by the court. A person may object to subpoena by mail, and then does not have to comply without a court order to compel. An order to compel shall protect non-parties from significant expense.
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Ala. R. Civ. P. 45(c)(3)(A)
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On timely motion, the court quashes or modifies a subpoena if (i) there is not reasonable time for compliance; (ii) it requires a non-party to travel more than one hundred (100) miles; or (iii) requires disclosure of privileged or protected matter with no relevant exception or waiver; or (iv) subjects a person to undue burden.
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Ala. R. Civ. P. 45(c)(3)(B)
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The court may take steps to protect a person subject to or affected by a subpoena if the subpoena (i) requires disclosure of a trade secret or other confidential R&D or commercial information; (ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, or (iii) requires a non-party to travel more than one hundred (100) miles. Such steps include reasonable compensation or the order of appearance or production only upon specified conditions.
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Ala. R. Civ. P. 45(d)
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"Duties in Responding to Subpoena." (1) Produce documents as per business and organize them per categories in the demand; (2) When claiming privilege or work-product protection, make the claim expressly, and specifically enough to allow a contest of the claim; (3) ESI must be as for business and reasonably usable; (4) ESI does not have to be in multiple formats; (5) there is a procedure for ESI hassles; (6) There are procedures for information produced in discovery that is subject to a claim of privilege or protection.
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Ala. R. Civ. P. 45(d)(1)
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A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.
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Ala. R. Civ. P. 45(d)(2)
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When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial-preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.
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Ala. R. Civ. P. 45(d)(3)
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If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoena must produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably usable.
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Ala. R. Civ. P. 45(d)(4)
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A person responding to a subpoena need not produce the same electronically stored information in more than one form.
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Ala. R. Civ. P. 45(d)(5)
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A person responding to a subpoena need not provide discovery of electronically stored information from sources the person identifies to the requesting party as not reasonably accessible because of undue burden or cost. On motion to compel discovery or to quash, the person from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(B). The court may specify conditions regarding the production of the discovery.
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Ala. R. Civ. P. 45(d)(6)
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If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the claimant may notify any party that received the information of the claim its basis. After notification, a party must promptly return, sequester, or destroy the specified information and behave honorably until the claim is resolved, which includes presenting the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it try to unring the bell. The claimant must preserve the information until the claim is resolved.
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Ala. R. Civ. P. 45(e)
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"Contempt."
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Ala. R. Civ. P. 45(dc)
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"District Court Rule." Rule 45 applies.
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Ala. R. Evid. 502
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Attorney-Client Privilege
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Ala. R. Evid. 503
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Psychotherapist-Patient Privilege
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Ala. R. Evid. 503A
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Counselor-Client Privilege
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Ala. R. Evid. 504
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Husband-Wife Privilege
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Ala. R. Evid. 505
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Communications to Clergymen
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Ala. R. Evid. 506
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Political Vote
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Ala. R. Evid. 507
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Trade Secrets
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Ala. R. Evid. 508
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Secrets of State and Other Official Information
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Ala. R. Evid. 509
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Identify of Informer
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Ala. R. Evid. 510
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"Waiver of Privilege by Voluntary Disclosure." A person upon whom these rules confer a privilege against disclosure waives the privilege if the person or the person's predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged.
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Ala. R. Evid. 511
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"Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege." A claim of privilege is not defeated by a disclosure which was (a) compelled erroneously or (b) made without opportunity to claim the privilege.
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Ala. R. Evid. 512A
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"Comment Upon or Inference From Claim of Privilege in Civil Cases." Judge's commentary and appropriate inferences are permitted for parties and forbidden for non-parties in a civil case.
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Ex parte Rives, 511 So.2d 514 (Ala. Civ. App. 1986) (discovery allowed in juvinile cases)
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Protective order was improperly granted under rules of civil procedure in juvenile case after rules of juvenile procedure were amended to make discovery procedures in juvenile court consistent in all courts. Rules Civ.Proc., Rule 26(dc); Juvenile Procedure Rule 1.
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Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (state law controls in diversity cases)
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In federal courts, except in matters governed by Federal Constitution or by acts of Congress, law to be applied in any case is law of the state. 28 U.S.C.A. § 1652.
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