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148 Cards in this Set
- Front
- Back
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Describe Discoverable materials.
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Those materials whose production must be requested by the adverse party.
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Which items must be disclosed?
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Only those items that the disclosing party intends to use in the case are disclsable.
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May courts opt out of disclosure rules?
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Courts do not have the option of opting out of disclosure rules.
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Describe disclosure
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Materials which must be provided to an opposing party without that party's specific request.
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When must automatic disclosure occur
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Automatic disclosure must occur before the discovery period has began.
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What are the four types of materials which need to be disclosed?
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The four types of materials which needs to be disclosed are witness reports, documents and tanglible things, documentation pertaining to damages, and insurance information.
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What information must be disclosed regarding witnesses?
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If known, the name, contact information, and pertinent subject matter of testimony for each witness must be disclosed unless they are to be used solely for impeachment purposes.
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Which witness information is subject to disclosure?
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Information concerning every individual which the disclosing party is likely to use to support its claims or defenses must be disclosed.
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Which documents and tanglible things must be disclosed?
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Those documents and tanglible things in the possession of the disclosing party which the disclosing party intends to use in its claims or defenses with the exception of privileged and impeachment materials must be disclosed.
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Which relevant documents and tanglible things are not included in disclosure?
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Those which will be used solely for impeachment, those which are privileged, those which are work product.
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Is there a duty to return copies of docs and tanglible things?
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Any documents given to an adverse party must be returned to the original party without need to show cause or leave.
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Must all disclosable documents be provided?
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In certain situations, it is sufficient for a party to merely provide the description by category and location of documents and tangible things in its possession.
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When must a disclosure be automatically supplemented
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An automatic disclosure mus tbe supplemented at regular intervals if the party (1) learns that in some material respect the information disclosed is incomplete or incorrect & (2) the additional or corrective information has not been made known to the othe
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What is opinion work product
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Opinion work product includes dosuments and tangible things prepared in anticipation of litigation that contain the mental impressions, opinions, and legal strategies of the attorney concerning the litigation.
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What is ordinary work product?
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Ordinary work product includes documents and tanglible things prepared in anticipation of litigation.
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When must ordinary work product be produced?
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Ordinary work product must be produced if (1) failure to produce would cause substantial hardship to the requesting party and (2) the requesting party cannot obtain the substantial equivelant by other means.
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What must a priveledge log contain?
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A priveledge log must contain a detailed chronicle of the materials which a party is withholding and reasons for their protection.
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What must be disclosed regarding requested damages?
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Automatic disclosure must be made of a computation of any category of damages claimed by a disclosing party including all materials bearing on the nature and extent of the injuries suffered.
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What documents pertaining to insurance must be disclosed?
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A party must disclose any insurance policies that would apply should there be a judgement in the case at bar.
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When and how must expert witnesses and exhibits be disclosed
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Witness testimony which is to be presented at trial by means of their deposition must be identified and exhibits must be disclosed within 30 days of the trial and info filed with the court.
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What information regarding witnesses must be provided?
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The name of each witness who may be called must be provided, as well as a differentiation of which may and will be called.
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What must be disclosed regarding evidence to be used at trial?
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A written reoprt must be disclosed regarding all non-impeachment evidence to be used at trial.
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When may an adversary's expert witness be deposed?
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An adversary's expert witness may only be deposed after a report of his testimony is written and recieved by adverse counsel.
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Which expert opinions are discoverable?
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Those which <b>will</b> or <b>may</b> be part of testimony at trial.
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When may a judge order discovery of facts found or opinions formulated by non-testifying experts?
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(1) expceptional circumstances , (2) under which it is umptacticable for the party seeking discovery to obtain facts or opinions on the same subject matter by any other means.
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How may a court punish a party who fails to comply with mandatory disclosure orders?
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A court may (1) prevent that party from offereing certain evidence or (2) may bar certain claims or defenses.
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When are discovery related sanctions mandatory?
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Discovery related sanctions are mandatory when a party (1) fails to disclose required materials without substantial justification or (2) fails to amend a prior response to discovery.
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When are sanctions for failure to disclose not mandatory
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Sanctions are not mandatory when a failure to disclose or amend is deemed to have been harmless.
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When is a failure to disclose or amend deemed to be harmless?
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A failure to disclose or amend is deemed to have been harmless if the information failed to be disclosed was <b>already in the possession of the opposing party</b>.
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What factors should a court weigh when determining relevance?
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A court should weigh the<br> (1) the likelihood that the discovery request will produce admissible evidence & <br>(2) unless there is a reasonable basis to predict that it will, discovery may be refused.
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What are the three categories of relevant discoverable materials which are inadmissible?
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Leads, legal theories, and witness information (regarding witnesses who may have discoverable information) are all discoverable.
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How is attorney work product different from attorney client priviledge?
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Attorney work product covers all preperatory work done by an attorney or his agents for a trial. Attorney client privilege protects condidences between the client and his attorney.
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What factors are to be considered when determining undue hardship?
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(1) The cost of obtaining the desired information through means other than discovery of qualified priviledged material, (2) The finanaces of the finances of the other party seeking discovery, (3) Hositility of the witness to the discovering party in circu
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What are the factors to be considered consituting good cause for production?
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(1) The specificity of the discovery request., (2) The quantity of information available from other sources, (3) The failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources, (4)
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What must an appellant show to demonstrate that a trial judge erred in compelling discovery?
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That but-for the compulsion of the discovery, the appellant would not have been prejudiced
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When may a party obtain copies of a statement not made by that party?
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A party to an action may obtain from his adversary the statement of a non-party only on a showing sufficient to overcome qualified work product.
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When must eye-witnesses be disclosed?
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Even without the specific requiest of the adversary, a party must disclose (1) the names and addresses of (2) any persons possessing information that the disclosing party may use in support of its claims or defenses.
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Is info about non-testifying witnesses subject to disclosure?
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A court will generally not allow discovery of the identies or whereabouts of experts who have been retained by a party, but who will not be called at trial. However, this may be waived upon a showing of (1) extraordinary circumstances which it is (2) impr
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What are the five classes of experts?
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(1) Experts who will be called at trial, (2) Experts who have been retained by counsel, but who will not be called at trial, (3) experts who have not been retained and who will not be called at trial, (4) participant experts, (5) parties who are experts t
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When must disclosure of of experts occur?
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Disclosure of experts must occur at least 90 days before a trial.
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What must be included in an expert's report?
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(1) Expert opinions, and reasons for them, (2) the data considered by the expert in formulating the opinion, (3) any exhibits used by the expert, (4) qualifications, (5) compensation, (6) other cases in which the expert has testified.
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When and How may a party depose an opposition expert
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Upon request and after submission of the mandatory report, a party may depose an opposition expert for a reasonable fee.
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When may experts retained by counsel but not used at trial be deposed by opposing counsel?
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Only upon showing of (1) extraordinary circumstances under which it is (2) impracticable for the party seeking discovery to obtain (3) facts or opinions by other means.
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Are physician's reports discoverable
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Physician's reports are discoverable by opposing counsel.
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Is there a mechanism for discovery of experts who have been consulted but not retained?
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It is virtually impossible to discover an opposing party's experts who have been consulted but not retained.
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How are participant experts discovered?
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participant experts are subject to the disclosure rules that govern normal witnesses.
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Which impeachment materials must be disclosed before trial
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Witnesses and exhibits intended to be used as impeachment devices need no t be disclosed before trial.
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When may a court order disclosure of impeachment materials?
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A court may order disclosure of impeachment materials for good cause.
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Which discovery modes are designed to operate extra-judicially?
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(1) Depositions, (2) Interogatories, (3) Requests for production of documents.
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When will a court intervene in discovery?
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A court will intervene in discovery only when a party refuses to comply fully with the other party's request.
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What does a certification imply?
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That the request or objection is, (1) consistent with the FRCP, (2) is not emposed to harass or cause delay, (3) is not unreasonable or unduly expensive
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What sanctions may a court impose for a false certification?
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(1) An order to pay the expenses incurred because of the violation, (2) Reasonable attorney's fees
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Who must recieve notice of depositions?
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(1) The deponent, (2) All parties to the action
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What must deposition notice include?
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Deposition notice must include the time and place of the deposition as well as the identity of the person being deposed and the manner of recording.
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Is a subpeona required to depose a party?
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No, and failure of a party to comply with a request to depose may be cause to incur sanctions.
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What are the consequences of using a subpeona as opposed to requesting a deposition?
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(1) Discovering party must pay witness fees., (2) Risk of antagonizing the deponent.
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What are the consequences of a non-supeona'ed deponent not attending?
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The deposing party may be required to pay his opposing party's fees.
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What is the range of a subpoena?
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A subpoena is only valid if its deposition is held within 100 miles of where the deposee resides, is employed, or regularly transacts business.
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How may a corporation respond to a subpoena?
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A corporation or partnership is responsible for applointing a representative to answer questions at a deposition.
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When may a party deponent be induced to produce documents?
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A request to produce documents may be filed contemporaniously with the notice of deposition.
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When may a non-party deponent be compelled to produce documents?
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For a non-party deponent to be compelled to produce documents, he must be served with a separate subpoena duces tecum for those documents.
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Who decides the manner of recording for a deposition and when must notice be given of this?
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The party taking the deposition may decide the manner in which it is recorded unless otherwise specified by the court. Notice of this choice must be given in the notice of the deposition.
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Who bears the cost of recording the deposition?
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The deposing party bears the cost of recording the deposition.
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When may a stenographic recording be used at trial?
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A stenographic recording may be used at trial if it has (1) been given to the parties and the (2) court (3) in advance of the trial.
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How should objections during a deopsition be made?
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Objections to depositions should be made concisely and in a non-suggestive manner.
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Which forms of discovery may be addressed only to parties?
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(1) Interogatories, (2) Requests to produce or inspect tanglible property, (3) Requests for admission, (4) mental physical examinations
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How are answers to interogatories to be given?
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(1) Under oath, (2) With a signature
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When is it possible for a party to not respond to an interogatory without objecting?
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When the answer which the requesting party seeks may be found in discoverable records, a party may direct the appropriate records.
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How many questions are interogatories limited to?
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Interogatories are limited to 25 questions unless the parties or the court permits more.
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How may a party answer a request to admit?
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A party may (1) admit the truth of the matter (2) deny the truth of the matter (3) Set forth reasons why he cannot truthfully admit or deny the matter (4) Qualifying admissions as necessary.
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Is it allowable for a party to request the admission of a triable issue of fact?
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Yes, so long as the request for admission is sufficiently narrowly focussed that the responding party has the ability to admit or deny individual issues.
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What are the consequences for failure to admit?
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If a party which requests admission of a matter of substantially importantance proves that matter at trial, a party which failed to admit it may be penalized if they did not have good reason that they could prove the matter at trial.
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What are the consequences of not responding to a request for admission?
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If a party does not respond within 30 days to a request for admission, then the matter is considered admitted.
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What may be covered by a request to produce?
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Documents and tanglible things (1) relavent to the subject matter of the case and (2) in the possession of one of the parties.
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May a party circumvent a request to produce by turning over actual control or possession?
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No, a party which has legal control of the requested item is obligated to honor the request.
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How may a non-party be compelled to produce documents and tanglible things?
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Upon service of a subpoena duces tecom, a non-party may be compelled to produce documents and tanglible things or be put in contemp of court.
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How is good cause with regards to discovery shown?
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(1) Th erequested information cannot be otherwise obtained, (2) The request is relavent ot the subject matter to be tried.
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When may a party be compelled to submit to physician's examination?
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(1) When the mental or physical condition of a party is in controversy, (2) Good cause, -----the info can be obtained not other way, -----it is relavent to the subject matter to be tried
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How many depositions is a party allowed in a case?
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10
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How often and for how long may a single person's deposition be taken
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One of seven hours.
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How many interogatories is a party allowed?
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25
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Are all question and answer sessions depositions? If not, what's the difference?
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A party may interview non-party witnesses under oath with a stenographer present without triggering one of the 10 depos. However, these transcripts are inadmissible where there are true depositions available.
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Under which circumstances is a court instructed to limit the frequency and extent of use of discovery methods
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(1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive., (2) The part seeking discovery has already had ample opportunity to obtain the desire
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How may a party resist discovery?
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(1) An objection, (2) A request for a protective order
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Against which discovery devices may an objection be raised?
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(1) interogatories, (2) depositions, (3) requests to produce
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What are the general reasons for objections to discovery devices?
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(1) No within the scope of discovery, (2) material is priviledged
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What are the consequences to an objection to interrogatories being sustained for being burdensome?
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Either the entire set of interogatories or single questions may be excluded a the court's discression.
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What are the consequences of an objection to a question during a deposition?
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The question is not answered pending resolution of the objection.
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What are protective orders designed to guard against?
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(1) Annoyance, (2) Embarrassment, (3) Oppression, (4) Undue Burden, (5) Expense
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Where may a party seek a protective order?
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A party may seek a protective order in both the district where the deposition is taken and in the district where the action is pending.
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When may a plaintiff voluntarily dismiss without consequences?
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A plaintiff may voluntarily dismiss an action once without consequences so long as it is done befor ethe answer is filed.
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May a plaintiff voluntarily dismiss after an answer has been filed?
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Yes, but only with the court's approval.
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What must be demonstrated to succeed on a motion for summary judgment?
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(1) there are no issue of material fact, (2) the plaintiff is entitled to judgement as a matter of law
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Who bears the burden of pursuasion in a motion for summary judgment?
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The movant bear the burden of pursuasion.
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What must an movant show (celotex)
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That the existin grecord contains no evidence that the other side will be able prove an essential element of its case.
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What must an opponent for summary judgment demonstrate?
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he must set forth specific facts showing that these is a genuine issue for trial.
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In whose favor are the facts in a motion for summary judgment construed?
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Motions for summary judgment are contrued most favorably for the non-movant.
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When must auto-disclosure of the 4 general categories occur?
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Not more than 14 days after the discovery meeting
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When must auto-disclosure of expert testimony occur
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At least 90 days before the trial date.
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When must auto-disclosure of impeachment testimony occur?
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Not more than 30 days after the disclosure of the claims intended to be impeached.
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When must disclosure of witnesses and exhibits occur?
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Not less that 30 days before the trial.
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What is a motion in limine?
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A motion in limine is a pre-trial motion which requests the suppression of proposed evidence by a judge as prejudicial.
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When is a motion to compel discovery appropriate?
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if a party fails to , (1) answer a written or oral depo, (2) answer an interrogatory, (3) allow a request for inspectoin or request to produce, (4) designate an officer to answer deposition questions
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Where can a motion to compel discovery be sought when dealing with parties to the litigation?
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Either in the district where the case is being tried or the district where discovery is being sought
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Describe Discovery
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Parties may obtain discovery regarding any matter releveant to the claimsdefenses in the pending litigation that is calculably leading to admissible evidence that is not privildeged, not WP and not subject to any court ordered limitation.
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What must be claimed to establish attorneyclient prividege
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(1) The communication was made with an expectation of confidentiality, (2) the communication is essential to a socially approved relationship or purpose., (3) Confifidentiality has not been waived by previous disclosures.
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What must be demonstrated to overcome qualified wp immunity?
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(1) Substantial Need for the materials, (2) Inability (without undue hardship) to procure their substantial equivelant
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What must be considered when determining good cause for production?
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(1) Specificity of the discovery request, (2) Quantity of information available from other sources, (3) No longer available from other sources, (4) Likelihood that the request will produce information not available elsewhere, (5) Predictions as to the use
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Under what circumstances may a party be forced to disclose the opinions of its experts not to be called at trial?
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Through a showing of (1) Extraordinary circumstances (2) under which it is impracticable for the party seeking discovery to obtain facts or opinoins on the same subject (3) but other means.
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How does disclosure certification differ from discovery certification?
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Disclosure certifications imply that the party believes after reasonable inquiry that the disclosures are correct at the time they are made. Discovery certification implies that discovery requests are not motivated by improper motives.
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What sanctions may be imposed for a false discovery certification?
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(1) Expenses caused by the violation (2) reasonable attorney's fees
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From whom may a deposition be taken?
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Deposition may be taken from any person thought to have information within the scope of discovery.
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What must be contained in notice of a depostition and who must it be sent to?
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The notice must go to every party in the action as well as the deponent. It should include The (1) Time (2) Place (3) Party names (4) Recording Method.
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What two courses of action may a deposition take after an objection has been made? Which is preferred?
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(1) Suspend the deposition for the time beeded to make a motion to terminate or, (2) Note and save the objections and submit them to the judge later as one large packet (preferred)
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Which discovery methods may be addressed only to parties?
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(1) Interrogatories, (2) Requests to produce or inspect tangible property, (3) Requests for admissions, (4) MentaPhysical Examinations
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What is the consequence of an objection to an interogatory?
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The question goe sunanswered until the court rules on the objection.
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Is it sufficient to direct a party to the location where the pertinent information may be found?
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Yes, this is done in order to disperse the costs of procuring the information to those parties which seek it.
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What types of admissions may be requested?
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(1) Opinion, (2) Fact, (3) Application of law to fact, (4) The genuineness of any documents
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What is the consequence of not responding to a request to admit?
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If a party does not respond to a request to admit within 30 days, the matter is considered to have been proven at trial.
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What must a request to produce documents contain?
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(1) Designate the documents, things, or land to be produced with peculiarity, (2) Specify the time, place, and manner of production or entry to be had
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What two general classes of offenses to protective orders guard against.
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(1) being asses [cumulative, duplicative, discovery requests], (2) being lazy [party has already had ample opportunity, too bumch burdenpayoff]
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What must a court consider prior to the impossition of sanctions?
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(1) The seriousness of the violation, (2) Whether a prior court order compelling discovery has been administered.
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For what reasons may a judge grant a protective order
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to prevent, (1) annoyance, (2) embarrassment, (3) oppression, (4) undue burden, (5) expense
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Where may a party seek a protective order?
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In either the district where the action is under way or where the discovery will occur.
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Given the dicotamy of two courts possibly ruling on a discovery issue, who gets deference?
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Whomever rules first.
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What is an order to quash?
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An order that the requested discovery not be had at all.
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What is required for a judge to limit public disclosure?
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(1) Good cause
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Does a non-disclosure order apply to information gained from non-discovery sources?
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No, information gained from sources outside the discovery process may be disseminated regardless of a bar on public disclosure.
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For what reasons may a court grant an order to terminate or limit a deposition?
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(1) depo Being Conducted in Bad Faith, (2) Which, annoys, embarrasses, or oppresses.
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When may a court make an order compeling discovery?
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When a party refuses to comply with a discovery request, including incomplete answers.
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What sanctions may a court levee along with an order to compel discovery?
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fees for the time it took to prepare and prosecute the order.
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Under what circumstances will a court that grants a motion to compel not levee sanctions?
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(1) Substantial justification, (2) Lack of good faith on the part of the discovering party, (3) The circumstances would make the award of fees unjust.
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What procedural sanctions are available to the court?
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(1) Establish Facts, (2) Bar Claims Defenses, (3) Enter Judgment, (4) Contempt
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What level of offense justifies contempt
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willfullness or gross negligence
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In which scenarios will a failure to disclose not result in sanctions?
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(1) Sunstantial justification, (2) The failure is harmless
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When are mandatory sanctions appropriate?
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(1) discoveree refuses to answer depo questions, (2) discoveree fails to attend his own deposition, (3) discoveree fails to answer interogatories, (4) discoveree fails to answer a request for inspection.
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What are the purposes of the pre-trial conference?
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(1) Narrow the issues for trial, (2) Identify witnessess to be presented at trial, (3) keep the case moving forward, (4) facilitate settlement
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What must be present in a judge's pretrial order?
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(1) Summarize the facts admitted by the atty's, (2) list the witnesses to be presents, (3) narrow the issues to be litigated
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When may a defendant make an offer of judgment?
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A defendant may propose to allow judgment on specified terms, so long as the offer is made more than 10 days before the trial begins.
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What happens with an unaccepted offer of judgment?
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The offer is considered withdrawn, and it is not admissible later in the proceeding except to determine costs.
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What are the reasons for which a court may order an involuntary dismissal?
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(1) For want of prosecution, (2) For non-compliance with a federal rule or with a court order
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How are the consequences of a voluntary vs. involuntary dismissal different?
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A voluntary dismissal does not consider the matter as having been adjudicated, while an involuntary one does.
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What is a default judgement?
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A default judgement is a binding judgment in favor of the plaintiff.
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In what situations may a court grant default judgment?
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When a defednant fails, (1) to appear before a court, (2) to timely answer, (3) has appeared and later fails to appear.
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How are damages upon default judgment computed?
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The damages pled are awarded.
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In what scenarios may a defendant have a default judgment vacated?
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Upon showing of proper excuse.
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When must a party be notified of impending default judgment?
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A party or its representative must be served with written notice of the application at least 3 days before the hearing for default judgment.
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When may a party use an objectionable discovery practice as a defense at trial?
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Only if the discoveree had already sought a protective order from the discovery practice in question.
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