Discovery

Front 1

Discovery (Rule 26)

Tools & Methods

Back 1

• Parties planning meeting
  
• Mandatory Disclosures
• Interrogatories
• Document Requests
• Depositions
• Examinations
• Required Expert Disclosures
• Requests for admissions
• Enforcement

Front 2

Discovery (Rule 26)

Limits

Back 2

• Relevance
• Privileges
• Work Product
• Protective Order
• Rule 26(b)(2)(C) limits (duplicative/burden/etc)
• Non-testifying experts
• Expert Draft reports
• Enforcement

Front 3

Discovery (Rule 26)

Standard 26b1

Back 3

a party can discover information relating to "any nonprivileged matter that is relevant to any party's claim or defense"

Front 4

Rule 26b

"Relevance"

Back 4

• must be relevant to claim or defense
  

(info that is relevant to the subject matter of the action but not a claim or defense can be discovered if party obtains court order showing good cause)

• need not be admissible at trial if it appears to be reasonably calculated to lead to discovery of admissible evidence (hearsay)

Front 5

Rule 26b

Relevance of Financial Info

Back 5

D's assets generally NOT discoverable because its irrelevant to whether P is entitled to judgement

Exceptions:

1. Punitive Damages
2. Insurance (at initial mandatory disclosure, party must disclose any liability insurance coverage)

Front 6

Rule 26b

Relevance & Privileges

Back 6

even if relevant, privileged info is NOT discoverable

a privilege protects info from being disclosed by a particular source

Front 7

All Discovery is subject to these 3 limitations:

Rule 26b

Back 7

1.discovery sought is unreasonably cumulative or duplicative, or can be obtainedfrom some other source that is more convenient, less burdensome, or lessexpensive

2.party seeking discovery has had ample opportunity to obtain the information bydiscovery in the action; or

3. burden or expense of the proposed discovery outweighs its likely benefit,considering the needs of the case, the amount in controversy, the parties’resources, the importance of the issues at stake in the action, and theimportance of the discovery in resolving the issues.

Front 8

Spoilation

Back 8

destruction or material alteration of evidence OR failure to preserve property for another's use as evidence in pending or reasonable foreseeable litigation

• Dutynot to destroy or materially alter evidence
• Dutyto preserve evidence
  

Front 9

DISCOVERY METHODS

Back 9

means for partys to obtain information

Front 10

Initial Disclosures

Rule 26a

(w.i. 14 days following planning conference)

Back 10

Requires each party to turn over 4 things:

1. Name(plus address and phone number if known) of each individual the party may useto supports its claims or defenses witnesses)– “unless the use would be solely for impeachment”

2. Copyor description of all documents, electronically stored information, andtangible things the party may use to support its claims or defenses – “unlessthe use would be solely for impeachment”

3. compution of damages

4. any liability insurance policy

**Rule 26e= duty to supplement or correct

Front 11

Document Requests

Rule 34

Back 11

Allows parties inspection of documents, Electronically Stored Information, and tangible things

Front 12

Rule 34

Document Requests:

Back 12

only serve on party (party must make it available for inspection if it is in possession of someone under that partys control)

Rule 45- allows party to obtain a subpoena requiring non-party to produce inspection

Front 13

Rule 35

Exams

(available only if info cannot be obtained by alternate means)

Back 13

• Mental or Physical condition exam sought must be "in controversy" (pleadings often put it in controversy)

• requires "good cause" (point to evidence in record)

(only as to a party
-or a person within party custody/legal control)

cannot force exam with contempt order

Front 14

Rule 33

Interrogatories

Back 14

written questions

• only to partys (under oath & signed)
• limited to 25 (unless stipulation/court order)
• must state objections w. specificity (moving party may move to compel-rule 37)

answering party has duty to reasonable investigate

Front 15

Rule 36

Admissions

Back 15

allows party to ask another party to admit certain matters (used at end of discovery to weed out matters in pleading that have been resolved)

• Admit only if you do not intend to contest the assertion at trial
  

• Admissions binding only in this lawsuit
  

• Admitted if you fail to object/answer

*no limit on #

Front 16

Rule 30

Oral Depositions

Back 16

• Can depose parties and non-parties (w. subpoena-rule 45)
• Limited to 10 depositions of 7 hours (without leave of court or stipulation)

• Notice may include Rule 34 (document)request

• Rule 30(b)(6)- deposing corporations (designated person or particular person)

Front 17

Rule 30b6

notice/subpeona to organization

Back 17

state reasonable matters for examination-must designate persons who consent on its behalf and set out matters on which each person will testify

subpoena must advise nonparty org of its duty to make this designation

Front 18

Rule 30

Oral Depositions Cont

Back 18

Objections (rule 30) :

-Concise

-Non-argumentativeand non-suggestive

(still have to answer)

Instruct not to answer only when:

-Necessaryto preserve privilege,

-Toenforce a limitation directed by court, or

-Topresent motion under Rule 30(d)(3)

Front 19

Rule 30

Oral Depositions Cont.

Back 19

Instruct not to answer only when:

-Necessary to preserve privilege,

-To enforce a limitation directed by court,

-To present motion under Rule 30(d)(3)

Motion to terminate:

-on grounds that it is bad faith

- court order to terminate or limit scope/manner

Front 20

Rule 26g (=11)-Certification

Ensuring Compliance

Back 20

Signaturecertifies to best of knowledge, information and belief formed after areasonable inquiry:

1. Discovery is complete and correct when made
   

Front 21

Rule 26g (=11) -Certification

Ensuring Compliance cont.

Back 21

2. Discoveryrequest, response, or objection is:

• consistent with these rules and warranted by existing law
• not interposed for any improper purpose
• neither unreasonable nor undue burdensome or expensive, considering the needs of the case, prior discovery, amount in controversy, importance of issue at stake in action

Front 22

Rule 26g (=11)- Certification

Back 22

2. Other parties have no duty to act on unsigned disclosure request, response, or objection

3. if certification violates this rule w.o substantial justification, the court (on motion or on its own) will appropriate sanction: Rule 37

Front 23

Rule 37:

Discovery Sanctions

Back 23

a. Motions to Compel (confer in good faith first)

b. Fail to comply

c. Fail to disclose/supplement/admit

d. Fail to attend deposition or response to Rule 33(interrogatories) or 34 (documents) requests

e. Fail to provide electronic information

f. Fail to join in Rule 26f conference

look at notes for details

Front 24

Privilege

Rule 26

Back 24

Parties may ONLY obtain discovery regarding nonprivleged matter that is relevant to the claim or defense

ex. attorney-client, doctor-patient, spousal, 5th amend against self incrimination

protects the communication source, can still get facts from non privileged sources. information not privileged, just the communication.

Front 25

Privilege

Rule 26

Back 25

must claim privilege expressly and describe nature of communication not disclose

*privilege can be waived by:

1. not asserting it

2. taking action inconsistent w. privilege

3. putting something into controversy

Front 26

Attorney-Client Privilege

Rule 26

Back 26

• Where legal advice of any is sought
  
• From professional legal advisor in capacity as such
• Communication relates to that purpose
• Made in confidence w.o presence of strangers and kept in confidence
• By a person who is or sought to become client
• Privilege has been claimed and not waived
• Information not privileged, just communication

Front 27

Attorney-Client Privilege

Rule 26: UPJOHN TEST

Back 27

for when client is a corporation, communications protected for any level if:

1. information is needed to supply basis of legal advice

2. Communication concerns matters within the scope of the employees duties

3. Employees know that they are being questioned so company can obtain legal advice

4. Employees understand that the communications are confidential

*federal privilege

Front 28

Work Product Doctrine

Rule 26

Back 28

Protection of documents/tangibles (that are otherwise discoverable) prepared in anticipation of litigation by party or party's representative

may only be obtained by showing NEED

otherwise discoverable =relevant to claim or defense and non-privileged

Front 29

When Work Product can be discovered:

Rule 26

Back 29

1. a party may discover work product only by demonstrating substantial need for the information, and

2. that same basic information cannot be acquired from another source without undue hardship

Front 30

Work Product Doctrine Cont.

Rule 26

Back 30

if court orders discovery of those materials, it must protect against disclosure of mental impressions, conclusions, opinions, or legal theories of party's attn. or representative concerning the litigation (redact out of doc.)

Front 31

Work Product Doctrine Cont.

Rule 26

Back 31

any party or person may obtain from the other side the person's own previous statement about the action or its subject matter without showing need

Front 32

Steps of Work Product

(Rule 26):

Back 32

1. Is it work product? Is it prepared in anticipation of litigation?

2. If it is work product, is there substantial need for the materials AND cannot, without undue hardship, obtain substantial evidence by other means?

written witness statements- work product

Front 33

Experts

Rule 26

Back 33

distinction b/w:

-experts who may testify at trial, and

-experts who were employed only for trial prep.

Front 34

"Expert" Defined

Rule 26

Back 34

someone with specialized knowledge in a particular subject area who gives an opinion based on facts presented to her or which she obtains via investigation

Front 35

Testifying Expert

Rule 26

Back 35

party may freely depose anyone identified as testifying expert

Front 36

Rule 26

Disclosing Experts

If witness is retained to provide expert testimony, must provide written report:

(must disclose identity of experts who may testify)

Back 36

1. Statement of all opinions and basis/reasons for opinions
   
2. Facts or data considered
3. Exhibits that will be used
4. Qualifications (including publications list for prior 10 years)
5. Cases in which testified at trial or depo in prior 4 years
6. Compensation paid for study and testimony

Front 37

Discovery of Testifying Experts

Rule 26

Back 37

• Maydepose any identified testifying expert.
• Trialpreparation protection for draft reports
• Trialpreparation protection for communications between a party’s attorney and expertwitnesses except to extent that

1. relate to compensation for experts study

2. Identifyfacts/data that the party's attny. provided and that the expert considered

3. Identify assumptions by party's atty provided to and considered by the expert in formingopinions

3.

Front 38

Discovery of NON-TESTIFYING Experts

Rule 26

Back 38

CANNOT discover facts known or opinions held by non-testifying expert who has beenretained in anticipation of litigation or to prepare for trial except:

1. asprovided in Rule 35(b) (good cause/in controversy), or

2. showing exceptional circumstances under which it is impracticable for the partyto obtain facts or opinions on the same subject by other mean

Front 39

Protective Orders

Rule 26

Back 39

allows court to enter a protective order limited discovery when needed to protect a person from:

-annoyance

-embarassment

-oppression, or

-undue burden or expense

must certify that you conferred/attempted to confer with other party first to try and fix dispute

Front 40

Range of Protective Orders

Rule 26

Back 40

• forbid
  
• specify terms
  
• prescribe another method
  
• limit scope
  
• designate person to bepresent, etc.
  

Front 41

Rule 37: Sanctions Cont

Back 41

• (a) Motion to Compel

-confer in good faith prerequisite
-must impose expenses/fee incurred in making motion unless substantially justified or unjust

• (b) – Fail to comply with order
  

-Priororder prerequisite

-Varietyof sanctions in addition to expenses/fees

Front 42

Rule 37: Sanctions Cont

Back 42

(c) – Fail to disclose/supplement/admit

-Failto disclose or supplement under Rule 26, not allowed to use info unlessfailure substantially justified or harmless plus, or instead, variety ofsanctions.

-Failto admit under Rule 36 and later prove true, may move for expenses and courtmust order unless A-D.

Front 43

Rule 37: Sanctions Cont

Back 43

(d) – Not attend depo or respond to interrogatory/doc request

-Conferin good faith prerequisite

-Objectionno excuse unless protective order filed

-Varietyof sanctions/fees

(e) – Electronically storedinformation

-Typicallyno sanctions if “electronically stored information lost as a result of theroutine, good-faith operation of an electronic information system”

• (f) – Fail to join in 26(f) conference

-Failto participate in good faith in developing and submitting a proposed discoveryplan

-Courtmay impose expenses/fees

Front 44

General Timeline for Discovery

Rule 26

Back 44

26(f) Planning Conference

-discuss discovery timeline, make recommendations, plan to submit to judge then create scheduling order (21 days before scheduling conf or scheduling order is due)

26(a) Initial Disclosure

-at planning conference or 14 days after

16(b) Scheduling Order

-court issues scheduling order

26(d) Discovery Requests

-must submit after planning conference