Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
25 Cards in this Set
- Front
- Back
|
Duty to Preserve/Spoliation
|
[1] Upon notice of pending litigation/the potential for future litigation
[2] A party/person anticipating being a party [3] must preserve unique, relevant evidence w/ potential use to adversary [4] in the possession ofindividuals likely to have discoverable material [5] and put a litigation hold on routine document destruction |
|
|
Scope of Discovery
|
Rule 26(b)(1) Things are discoverable if
[1] Relevant to claims/defenses [2] W/ court's leave, if relevant to subject matter [3] Reasonably calculated to lead to admissible evidence |
|
|
Duty to Preserve/Spoliation: Sanctions
[Duty to Preserve/Spoliation] |
[1] Party who allows relevant material to be destroyed will be sanctioned
[2] summary judgment or dismissal awarded if either [a] bad faith [b] highly prejudicial |
|
|
Limits of Discovery
|
Rule 26(b)(2) Things aren't discoverable if
[1] Would cause Undue Cost or Burden, Embarassing [2] Duplicative [3] Was available previously [4] Is avaliable by other source [4] Costs > benefits) Other factors not in the rule [1] Privileged [2] Trial Prep Materials |
|
|
Work Product
[Limits of Discovery] |
Rule 26(b)(3)
[1] Documents prepared in anticipation privileged unless need/burden shown [2] Impressions and opinions always privileged [3] Where document has priveleged and non-privileged material, may have to produce it (sanitized) |
|
|
Privilege
[Limits of Discovery] |
Certain Sources Protected
[1] Attorney-Client communications [2] doctor-patient [3] spouse-spouse Waived if [1] privilege not asserted [2] actions inconsistent w/ privilege (3rd party present) [3] communications about fraud |
|
|
Protective Orders: purpose and scope
|
Rule 26(c) requested by party, issued by court
[1] limits discovery (even where protected material relevant) [2] To protect a party or person from annoyance, embarassment, oppression, or undue burden or expense [3] movant must show attempt to confer with other party before seeking the order Rule (c)(1)(A)-(H) lists means of protection |
|
|
Ensuring Compliance w/ Discovery: Motion to Compel & sanctions
|
Rule 37(a) motion to compel
[1] Must show attempt to confer 1st [2] Granting the motion, court will file Order to Compel and mandate Rule 37(a)(5) sanctions (expenses incurred in motion) unless no conferrence or objection justified [3] Refuse order to compel, 37(b) sanctions (matter embraced, prohibit claim, dismissal, default judgment, contempt of court) [4] Rule 37(b) failure to disclose evidence = can't use it for your case either (in addition/instead: pay expenses, inform jury of failure, rule 37(b) sanction) |
|
|
Ensuring Compliance w/ Discovery: Motion to Compel DENIED
|
Rule 26(c) protective order
Rule 37(a)(5) Movant and/or counsel pay reasonable expenses incurred in opposing motion |
|
|
Initial Disclosures
[Mandatory Disclosures] |
26(a)(1): W/out awaiting request, party must disclose anything they will be using in court
[1] Potential Witnesses: names & contact info (not if used to impeach) [2] Docs: descriptions and locations [3] Calculations of Damages: evidence for how computations done [4] insurance agreements that could satisfy judgment |
|
|
Expert Witnesses
[Mandatory Disclosures] |
Rule 26(a)(2): only for testifying experts, disclose
[1] identity [2] opinions: their basis and supporting data [3] exhibits they will use [4] qualifications & publications in last 4 years [5] history of expert testimony in last 10 years [6] their compensation for testifying |
|
|
Pre-Trial Discovery
[Mandatory Disclosures] |
Rule 26(a)(3) 2nd Mandatory disclosure, of everything to be produced at trial
[1] Witnesses: if not already disclosed [2] Exhibits: identification & summary (distinguing which will or may be used) [3] Unless to be used solely for impeachment |
|
|
Discovery by Request
|
Must wait until after all initial disclosures
[1] Interrogatories [2] Admissions [3] Production Requests [4] Depositions |
|
|
Interrogatories: Purpose, Scope and Limits
[Discovery by Request] |
Rule 33: After disclosure, submit written request w/in scope of Rule 26(b) to other party.
[1] Parties only [2] No follow up Qs [3] Only 25 (w/out permission/leave) Uses: [1] cheap, easy to make [2] learn about matters not discussed in disclosures [3] figure out what materials you'll want to request or persons to depose |
|
|
Interrogatories: Response to
[Discovery by Request] |
[1] By party/agent of the organization or company (signed)
[2] W/in 30 days [3] Answers: each unobjected one separately, fully, in writing, under oath [4] Objections: grounds stated w/ specificity, timely (waived w/out court's leave) [5] if answer available in business records, may give location and access to them (if burden equal) |
|
|
Admissions: Scope and Limits
[Discovery by Request] |
Rule 36: Written request to
[1] Parties only [2] request to admit truth relating to facts or documents [3] must state each matter separately, include mentioned documents if not already available *Uses* [1] eliminate undisputed issues cheaply and early on [2] allow litigation to focus on disputed facts |
|
|
Admissions: Response to
[Discovert by Request] |
[1] Admitted: automatically unless responded to w/in 30 days
[2] Denials must be specific (respond to substance of the matter) [3] Show why if can't truthfully admit/deny (like lack of knowledge) [4] Objection: show grounds [5] Requesting party may make motion to determne sufficiency of any response or objection |
|
|
Production: Scope and Limits
[Discovery by Request] |
Rule 34 & 35: no limit to how much you can request, the workhorse of discovery
[1] anything relevant according to Rule 26(b) (includes damages) [2] Parties: request under Rule 34 [3] Non-Parties: subpoena under Rule 45 [4] Must describe doc/object/property w/ reasonable particularity [5] Specify time for inspection |
|
|
Production: Response to
[Discovery by Request] |
Parties must
[1] w/in 30 days [2] Specifically state permissions and objections [3] Objections to eDocs: may object to form of storage and state the form they will send it in [4] Must produce docs either[a] as they are stored in usual course of business [b] organized & labeled in correspondance w/ categories in request |
|
|
Production: Physical & Mental Exams: Scope
[Discovery by Request] |
Rule 35(a)
[1] parties only [2] must show good cause [3] physical/mental condition should be in controversey |
|
|
Production: Physical & Mental Exams: Examiner's Report
[Discovery by Request] |
Rule 35(b)
[1] On request, movant must deliver contents of exam [2] By requesting the report, party examined waives privilege concerning testimony about all exams of same condition |
|
|
Depositions: scope
[Discovery by Request] |
Rule 27-32:
[1] Rule 28: must be taken b4 Officer authorized to administer oaths (or person appointed by court) [2] Rule 29: Parties may stipulate any time, place, notice for the deposition [3] Rule 30(a) may depose parties and non parties (require subpoena) [4] Rule 30(b): Give Notice of deposition to every party (including deponents) [5] Rule 30(b): Recorded at expense of noticing party |
|
|
Depositions: companies/organizations
[Depositions: scope, limits] |
Rule 30(b)(6): subpoena company organization, request matters for examination, other side may designate an agent (specialist) to testify on behalf
|
|
|
Depositions: Limits
[Discovery by Request] |
[1] Rule 30: 10 per party, one 7 hour day per, one per person (sans permission or leave)
[2] Objections: do not prevent answer of question (except in case of privilege) [3] Deponent's counsel may cross-examine client (only useful for getting stuff on record/if a trial deposition) |
|
|
Deposition: Use & Role
[Discovery by Request] |
Expensive but vital to getting testimony/info from people:
[1] learn info [2] authenticate docs [3] lock in story [4] evaluate future witness [5] get admissions |
