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25 Cards in this Set
- Front
- Back
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Initial disclosures without request |
Name and contact information of persons likely to have discoverable information, along with subjects of their information unless use of the information would be solely for impeachment; and also a copy or description by category and location of all documents, electronically stored information, and tangible things that the disclosing party has to support its claims or defenses unless the use would be solely for impeachment. A computation of each category of damages claimed by the disclosing party and the documents on which that calculation is based must be available for inspection and copying. Insurance agreements that may be used to satisfy part or all the judgment. |
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Required disclosures without discovery request |
Pre-trial disclosures include lists of witnesses; lists of those whose depositions will be offered; identification of documentary evidence and exhibits. These disclosures must be made at least 30 days prior to trial. |
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Expert testimony disclosure |
The identity of an expert witness, plus a written report containing the opinions to be expressed and the basis and reasons for these opinions, plus listings of other cases in which the expert has been involved, and the compensation to be paid re this case. |
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Retained experts (or regular employees who routinely testify as experts on behalf of their employers) who WILL testify as experts |
Identity must be revealed and they must prepare and disclose a signed written report that states the opinions they will express at trial; the facts underlying those opinions; any exhibits they will use to summarize or support the opinions; their qualifications, including their publications over past ten years; and a statement of the compensation they are being paid. They must also be available for deep. by opposing side. |
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Retained experts who WILL NOT testify (usually those hired to help prepare for trial) |
They need not prepare any sort of report for the other side. Ordinarily a party may not, by interrogatories or deposition, discover facts known or opinions held by such experts |
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non-retained experts who WILL testify as experts (treating physicians at an emergency room, or employees of a party who will testify as experts about the particulars of the lawsuit). |
No written report need be prepared by them and shared with the other side; but disclosure must be made of the subject-matter on which they may testify as an expert; and a summary must be supplied of the facts and opinions to which they will testify. |
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Non-retained experts who will testify, but NOT as experts |
A factual witness, no special treatment as an expert witness because they are not acting in that capacity in trial. Person's identity must be disclosed unless the testimony will be used solely for impeachment. |
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Supplement prior disclosure or discovery |
A party who has made a disclosure or who has responded to an interrogatory, request for production, or request for admission, must supplement or correct that disclosure or response if the party comes to learn that the prior response is incomplete or inadequate. If the other party has otherwise learned this new information in discovery or in writing, supplementation is not needed. |
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Sanctions for inadequate disclosure or discovery |
If a party fails to provide disclosure/discovery materials properly, the party is not allowed to use that information or witness at trial unless the failure is substantially justified or harmless. The court may order payment of the other side's reasonable expenses; the court may inform the jury of the lapse; or other "appropriate sanctions" |
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Production of documents and things |
Any party may request from any other party to inspect, copy, test, or sample any documents which include electronically stored information, writings, drawings, graphs, charts, photos, sound recordings, images, and data, all stored in any medium directly or for reasonable translation into usable form; plus designated tangible things. |
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Inspection/Entry on land |
Any party may request entry upon designated land in the control of another party for the purpose of inspection and measuring, surveying, photographing, or testing. |
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Subpeona |
Issues from a court; commands the person to whom it is directed to attend and give testimony at a trial, hearing, or deposition, or to produce and permit inspection or copying of documents or tangible things. |
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Oral Depositions |
A party may take the testimony of any person, including a party, by deposition without leave of court (with some exceptions). It consists of an oral examination of a person that is recorded in some way. The person can be ordered to bring along documents or things. An “officer” [person authorized by the court to administer oaths, like a court reporter] will swear in the witness and record the answers. Cross examination is permitted. All objections to the questions or conduct of any party will be noted by the officer, but the examination will proceed subject to objection. In lieu of an oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition, who will transmit them to the officer, who in turn will propound the questions of the witness and record the answers.
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Duration, sanction, termination |
Unless otherwise stipulated or ordered by the court, the deposition of any given person is limited to one day only, consisting of seven hours. The court must allow additional time if needed to fairly examine the deponent or if the deposition has been somehow impeded or delayed. The court may impose sanctions or persons who impede or frustrates the fair examination of a deponent. |
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Interrogatories |
Without leave of court any party may serve to any other party up to 25 written questions, to be answered or objected to with 30 days. Questions must be answered separately and fully, in writing, and under oath. Objections to a given question must be noted with specificity. The party serving the interrogatory may move for a court order compelling an answer notwithstanding the objection. |
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Business Records |
If the answer to an interrogatory may be determined by examining or auditing business records, and if ascertaining the answer would be substantially the same for either party, the answering party may respond by specifying the records that must be reviewed in sufficient detail to enable the interrogating party to locate them as readily as the responder; and giving the interrogating party a reasonable opportunity to examine, make copies, or summarize the records. |
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Physical and mental examinations |
When the physical or mental condition of a party or person under the care/control of a party is in controversy, the court may order that person to submit a physical or mental examination for good cause. The scope of examination will be specified. The party who moved to have an examination ordered must then upon request turn over to the other side or to the person examined the report by the physician or other examiner. This report must be in writing and set out the findings, diagnoses, and the results of any tests. Once the examining party has turned over the examiner's report, that person is entitled to receive from the other party all earlier or later examinations of the same condition. |
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Request for admission |
A party may serve upon the other party a written request for the admission, for purposes of the pending action only, of the truth of pertinent statements of fact, opinions application of law to fact, or the genuineness of documents. |
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Moving to compel or be protected from discovery |
If a party fails to make a disclosure or proper discovery, any other party may move to compel disclosure or discovery and for appropriate sanctions. A party from whom discovery is sought may move for a protective order in the court where the action is pending or in the court where a deposition is being taken. |
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Relevance |
To be discoverable, information must be relevant. If information to be discovered is not relevant, then it is wasteful of resources, or an unnecessary invasion of privacy or both. If information is relevant, however, then unless some other policy comes into play, discovery should be permitted in reaching a just result based on all the facts. For a piece of information to be relevant to a legal proposition means, according to the governing substantive law, that the information tends to prove or disprove something that matters in that law. |
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General scope and limits of discovery |
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. |
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Privilege |
Relevant material is discoverable unless it is privileged (i.e. protected because it's from certain sources). Communications from certain sources (attorney/client, doctor/patient, penitent/priest) are deemed so socially important that the communications are not discoverable even though what was said in that communication may be highly relevant to the lawsuit. When a party withholds information by claiming the information is privileged or subject to trial-preparation protection, the party must expressly make the claim; and describe the nature of the documents, communications, or tangible things not produced, but do so in a manner that will not reveal the information itself. |
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Rule 26(b)(3) |
Opposing attorneys can discover documents and tangible things prepared in anticipation of litigation by or for another party only upon a showing by the discovering party of "substantial need" for the materials; and inability without undue hardship to obtain the substantial equivalent of the materials by other means. In applying the above, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney concerning the litigation. Parties and witnesses can obtain without the required showing statements made by those parties or witnesses themselves. |
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Parallel to Rule 11 concerning discovery |
Every request, response, or objection must be signed and constitutes a certification that to the best of the signer's knowledge, information and belief, formed after a reasonably inquiry, it is warranted by existing law or a good faith argument for the extension or modification of existing law; it is not interposed for any improper purposes such as to harass or to cause unnecessary delay or cost; it is not unreasonably burdensome or expensive, given the needs of the case the discovery already done, the amount in controversy, and importance of the issues. |
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Protective Orders |
A party or the target of the discovery request must certify to the court that the movant has in good faith conferred or attempted to confer with the other affected parties in an effort to resolve the dispute without court action. The movant must show good cause why, in order to protect against annoyance, embarrassment, oppression, or undue burden or expense, one or more of the following relief should be granted: that the discovery not be had; or that the discovery be had only on specified terms and conditions; that the discovery be had only by a different method of discovery than selected by the party seeking discovery; that certain matters not be inquired into, or the scope of discovery on those matters be limited; that the discovery be conducted with no present except persons designated by the court. That a deposition, after being sealed, be opened only by order of the court. That a trade secret or other confidential research, development, or commercial information not be revealed, or revealed only in a designated way; or that the parties simultaneously file documents in sealed envelopes to be opened as directed by the court.
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