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39 Cards in this Set
- Front
- Back
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What is the scope of discovery?
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relevant to the subject matter and not privileged
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What is work product?
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anything prepared in anticipation of litigation or preparation for trial
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What is the NC work product rule?
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If the sold purpose of gathering the material is in anticipation of litigation, work product has qualified immunity from discovery
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How can an opposing party obtain work product in NC?
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By showing substantial need and inability to obtain the equivalent without undue hardship
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What type of work product is always protect and what type of work product is always discoverable?
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1. attorney's mental impressions
2. a party's own statements |
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What must parties provide in interrogatories in NC regarding testifying experts?
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1. expert's name
2. subject matter 3. substance of facts and opinions and grounds for those opinions |
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What is the NC rule for non-testifying experts? What is the federal rule?
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NC - not discoverable
Fed - discoverable only under exceptional circumstances |
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What are actor/viewer experts? How are they treated?
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witnesses who may be expert witnesses but are also participants in the transactions that are part of the subject matter of the lawsuit. they are treated as ordinary witnesses (non discoverable work product)
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What are protective orders in discovery?
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Issued to limit or prevent discovery of otherwise discoverable matters
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How are protective orders in discovery obtained?
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party or person must show good cause that it needs protection from unreasonable annoyance, embarrassment, oppression or will suffer undue burden or expense
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When can protective orders in discovery be obtained?
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Before the discovery is due
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What is the standard for supplementation of discovery responses?
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reasonableness
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When do the parties have a duty to supplement?
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a) identity and location of witnesses
b) identity and subject matter related to experts c) if a prior response was incorrect d) if a prior response is no longer true and failure to amend is a knowing concealment e) court orders f) new discovery requests |
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What are the NC and Federal limits for interrogatories?
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NC - 50 per party
Federal 25 per party |
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What are the exceptions to the limits on interrogatories?
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leave of court for good cause shown or
agreement of the other party |
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How are depositions admissible at trial?
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For both substance and impeachment
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What must you give to parties for a deposition? Nonparties?
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Parties - notice
Nonparties - may have to compel attendance by subpoena |
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How do you get documents, things or entry upon land from a nonparty?
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Subpoena Duces Tecum
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What are the objections to discovery requests?
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1. imposes an undue burden
2. insufficient time to respond 3. protected work product or privilege |
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What are the time limitations for discovery?
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30 days to produce or object
45 days after service of complaint |
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When may the phsyical or mental condition of a party be examined?
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if it is in controversy and good cause is shown
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What rights and limitations do examined parties have?
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the right to get a copy of the examination, but must produce all similar examination results to the other side
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What does a party need to do before it can seek a motion to compel discovery?
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certifies in good faith that it attempted to meet with the other party to get discovery and the other party failed to comply
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plangent
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pounding
"From a doorway came the plangent sounds of a guitar" plaintive, sad |
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What is the NC rule for pretrial conferences?
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NC requires a pretrial conference in almost every case, unless excused by the court, to be held no later than 7 days before trial
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What are the two stages of default judgments?
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1. entry of default
2. judgment of default |
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What is required for entry of default?
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plaintiff must show defendant served with process and court has personal jurisdiction over defendant
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When is a judgment of default entered by the clerk? What must the claimant provide?
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When the claim is for a sum certain or can be made by certain computation. Requires affidavit or verified pleading by claimant
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What types of defendants cannot be given a judgment of default entered by the clerk?
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Infants or incompetents
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When is a judgment of default entered by the judge?
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All other situations
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A default judgment may not exceed or vary in kind from what?
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the relief sought in the pleadings
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If the party against whom the entry of default has been entered has made an appearance, what must happen?
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Notice must be given before a hearing on damages
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What is the NC rule on voluntary dismissal?
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NC allows one voluntary dismissal without prejudice or permission at any time before the plaintiff rests her case. If the original action was timely filed, the party has one year to refile the claim, even if the SL has run, unless the original complaint failed to state a claim and was not amended
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What is the federal rule on volunary dismissal?
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Requires written notice of dismissal prior to answer or motion for SJ, or by stipulation of the parties
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When is voluntary dismissal not allowed without consent from the other party?
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When the opposing party has a compulsory counter claim
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What is the NC standard for summary judgment?
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No genuine issues as to any material fact and any party is entitled to judgment as a matter of law
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How does the NC standard for SJ differ from the federal rule?
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The federal rule is limited to the moving party
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What evidence can a party offer to support motion for summary judgment?
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Sworn and admissible affidavits, depositions, interrogatories, admissions, pleadings, etc.
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What happens if a party submits unsworn affidavits to support a motion for summary judgment?
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the other party must object or the court may consider them
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