Pci Week 10

Front 1

ELECTRONIC DISCOVERY

Back 1

WAIT!

Front 2

Is there a duty to preserve electronic discovery?

What is it?

Back 2

Same as regular duty to preserve

(1) Preservation – duty to maintain potential evidence when party knows or rzbly should know substantial chance of litigation & evidence is likely to be material & relevant thereto.
(a) More complicated in E-discovery context
(b) Who would be generating it?
(c) Where is it stored? PC, PDA, backup discs, e-mails, voice-mails, etc
(d) HUGE spoliation trap/opportunity (depending on which side you’re on)

Front 3

What is the propert way to request electronic discovery?

Back 3

(a) To be entitled to E-discovery, to trigger obligation to produce digitally, must:

1. SPECIFICALLY REQUEST it in electronic form; and

2. tell them the format you want it in
(i) Static images of the docs (not really searchable)
(ii) Native file format (includes metadata)
(iii) Middle-ground, some searchable/readable neutral format
1. text-recognized pdf
2. *.tif file w/ metadata
3. etc.

Front 4

What electronic data must the responding party produce?

Back 4

Must produce the electronic or magnetic data that is:

1. Responsive to the request; and
2. is REASONABLY AVAILABLE to the responding party in the ordinary course of business.
ex. pack up tapes are not as available.

Front 5

What does reasonably available mean?

Back 5

(3) Rzbly available → no costly conversion necessary to produce the data
(4) But, if data is only maintained on a tape backup system or something requiring special conversion to make it searchable, and that would take great expense/burden, probably not rzbly available.

Front 6

What if responding party can't rhough reas efforts retrieve the datat or inomation requsted or produce it in the fomr requested?

Back 6

They must state an objection complying with the rules.

Front 7

What is the most important rule in RFP?

Back 7

Tessting, sampling or examination of an item may not destroy or materially alter an item unless previously authroized bu the court.

This is especially important in E discovery because just the act of turning on the computer or accesing a file alters the metadata of the file.

Front 8

In RE Lowes:

Plaintiffs wanted production of a datablase of injuries.

Back 8

Lowes claimed TS but court didn't buy it.

COURT DID BUY THAT THEY DIDN'T SPECIFICALLY ASK FOR IT.

Point is you have to specifically ask for E discovery.

Front 9

What about just asking for emails?

Back 9

You have to specifically ask for deleted emails. BE SPECIFIC

Front 10

What if hte court orders the responding party to comply with the request after the party objects to it being not availabel in the ordinary course of business?

Back 10

THe must court msut also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the informaion.

If there is an exeive burden = that means the amount or cost is excessive.

Front 11

In re CI Host, Inc.
Plaintiffs sued CI, alleging that CI’s server had crashed and caused damages. Plaintiffs requested production of CI’s backup tapes. CI objected that the request was overbroad and demanded confidential information, trade secrets, and information beyond the scope of discovery.

Back 11

What should CI have done?
Essentially, CI should’ve followed the process of asserting privilege that we learned above. First, CI should have made an objection in writing within 30 days (as per TRCP 193.3). In that objection, CI should’ve specified that it was withholding certain materials based on privilege. At the first hearing, CI didn’t present anything. At the second hearing, CI presented very little. Conclusion: The trial court did not abuse its discretion in ordering production of the tapes due to CI’s failure to adhere to discovery rules.

Lesson: Even though e-discovery presents unique issues, you must still follow the process of asserting and objecting to privilege!

Front 12

Must you comply with the part of discovery that you can?

Back 12

A party must respond to as much of the request to which the party has made no objection to unless it is unreasonable under the circumstances to do so before obtaining a ruling.

Front 13

Can you compel e-data before you request it?

Back 13

i) Rule 196.4 – Relatively unique, nationwide
(1) If you don’t request E-data under 196.4, you can’t compel it! Must request production in E format
(2) Has a cost-shifting provision for extraordinary costs, above

Front 14

Rule 196.5 – destruction or alteration

Back 14

(1) Not specific to e-data, but frequently used in that context
(2) B/c any time you access a file, the original e-data, you’re altering/destroying evidence! Metadata!
(3) Under the rule, need court order to alter/destroy evidence – else contempt or spoliation sanctions

Front 15

Scope of Electronic Data

Back 15

(1) Requests for E-data must be rzbly tailored, like all other requests for discovery
(2) Order compelling depo and that computer be brought such that searches can be made at the deposing-party’s insistence was not rzbly tailored
(a) Overbroad in all ways
(b) Can’t just request an order to “go fishing” in the other party’s e-data

Front 16

As a genera propsition is examining a hard drive a reasonably tailored request?

Back 16

No. BUT in in re honza, the party was looking for 2 specific docs and asked to bring in a computer forensic specialist

Front 17

Is metadata discoverable?

Back 17

Generally, YES, if relevant to issues in the case
(2) But it’s not automatically relevant

Front 18

(3) What’s the protocol for discovery of opponent’s HD?

Back 18

1. Party seeking discovery selects a forensice expert to make a mirror image of the computer hard drive

2. the expert ir required to perform an analysis subject to the terms of a protetive order, generaly prohibiting the expet from disclosing confidential or otherwise privileged information other that under the terms fo the discovery

3. Expert searches mirror image for relevenat ocs and compiles a list of docs obtained and provide copies to party opposing discovery

4. the oposing party revies docs, produces those that are responsive and created a priv log for those that are withheld.

5. the TC will conduct an in camera reveiw to resolve any disputes.

Front 19

In texas are you required to meet and confer regarding the scope of e data?

Back 19

NO.

But there is an implied obligation. it is required in fed discovery.

Front 20

When a NON-PARTY is asked to produce e-data, is he entitled to recover the costs of production?

Back 20

A non-party must be protected from excessive burden

(1) When a non-party is asked to produce e-data, he is entitled to recover reasonable costs of production from the requesting party.
(2) But, those costs DO NOT include atty fees involved in reviewing the docs for privilege

Front 21

What must be done when you seek e data and then you have a privilege hearing?

Back 21

(1) At privilege hearing, party asserting privilege must produce EVIDENCE of privilege
(2) And even if part of your e-data is privileged, you must produce all non-objectionable part
(3) And if such production would be unduly expensive, use 196.4 to fee-shift extraordinary cost

Front 22

DISCOVERY SUPPLEMENTATION AND SANCTIONS

Is there a duty to ammend or supplement responses to written discovery?

Back 22

x) 193.5(a) Duty to amend or supplement
(1) If a party learns that the party's response to written discovery
(a) was incomplete or incorrect when made, or,
(b) although complete and correct when made, is no longer complete and correct,
(c) the party must amend or supplement the response:

Front 23

To what extent must the party supplement responses?

Back 23

(c) the party must amend or supplement the response:

(i) TO THE EXTENT THAT THE WRITTEN DISCOVERY SOUGHT THE IDENTIFICATION OF PERSONS WITH KNOWLEDGE OF RELEVANT FACTS, TRIAL WITNESSES, OR EXPERT WITNESSES, and

(ii) TO THE EXTENT THAT THE WRITTEN DISCOVERY SOUGHT OTHER INFORMATION,
1. unless the additional/corrective info HAS BEEN MADE KNOWN to the other parties IN WRITING, ON THE RECORD AT A DEPO, OR THROUGH OTHER DISCOVERY RESPONSES.

Front 24

What is the difference between a fprensic expert and a special master?

Back 24

A forensic expert is a nuetral paid for by the requesting party

a special master is a judges's helper with a more expansive role.

Front 25

Timing and form of supplementation of written requests for discovery

Back 25

xi) 193.5(b) – timing
(1) Must amend/supp “reasonably promptly”
(2) But, if it’s w/in 30 days of trial → rebuttable presumption of not rzbly prompt

Must be in the same form as the intitial response
(3) If original response had to be verified, supp/amend must be verified
(a) Lack of verification or in same form is waivable if opponent doesn’t raise it.

Front 26

What happens if you fail to make, amend or supplement discovery responses?

Back 26

Automatic exclusion:

The party may not introduce in eveidence the material or information that was not timely disclosed or offer the testimony of a witness (OTHER THAN A NAMED PARTY) who aas not tomely identifid unless the court finds:

(a) good cause, or
(b) lack of unfair surprise or unfair prejudice to other party

Front 27

Who has the burden of establishing good cause or unfair surprise?

Back 27

The party seeking to introduce the evidence or call a witness

a findig must be supported by evidnce on the record.

(Remember that in Texas there is a right to ammend PLEADINGS prior to trial as long as it is no later than 7 days (even wi 7 should be freely given unless suprise/prejudice and burden to establish surprise/prejudice is on party seeking to keep it out) - opposit of here).

Even if the burden is not met the court may grant a continuance to allow a response to be maed or allow parties to conduct discovery regarding any new information presented by that response.

Front 28

What must an expert amend/supplement in his deposition testimony

Back 28

xiii) 195.6 – Experts
(1) If he’s a retained expert, must amend/supplement any deposition testimony that changes???

Front 29

What if you don't properly name a party as a witness?

Does it call for sanctions?

Back 29

(1) Not properly naming a party as a witness in discovery calls for exclusion sanction
(2) It’s not “good cause” that the witness is a rebuttal witness
(3) It’s not “good cause” that counsel made a mistake
(4) It’s not “good cause” that the evidence is particularly crucial
(5) But even w/o good cause, continuance is available if equities demand it.

Front 30

xv) Johnson v. Berg
(1) Δ fails to object to π’s failure to properly identify X as a testifying expert

Back 30

xv) Johnson v. Berg
(1) Δ fails to object to π’s failure to properly identify X as a testifying expert
(2) Δ clearly knew about the expert
(3) Δ objects to testimony much later
(4) Court declines to exclude the expert testimony even w/o proper identification as expert
(5) B/c Δ was not unfairly surprised or unfairly prejudiced – he knew all along!

Front 31

xvii) Lewis & Swaine: Inadequate response vs. lack of response

When are you required to object to an inadequater response to written discovery?

Back 31

1. If the response is inadequate (meaning not complete, like not giving you experts address) it is at least there so you have a pretrial response.

Burden shifts to the REQUESTING PARTY to compell a better response.

objecting party waives error by waiting until trial to raise eror and failur to raise error in a pre-tria motion to compell waives issue.

2. However, a complete lack of response does not obligate the opp to file a pre-tria motion to compel and excluson is automatic absent showing of good cause.

D not required to file pre-trial motion to compell

Front 32

DISCOVERY SANCTIONS

what is the effect of your signature on a discovery response?

Back 32

g) Discovery Sanctions
(1) Your signature on a discovery response → guarantees complete/correct disclosure & rzbl inquiry
(a) If you find it wasn’t right, it’s your ass if you don’t fix it.

Front 33

Where do you file a motion to compel or motion for sanctions?

Back 33

(a) 215.1(a) – where to file a motion to compel/sanctions
(i) For depo to party – ct in which action is, or any ct in district where depo is to be taken.
(ii) For depo to non-party – ct in district where depo is to be taken

Front 34

(b) 215.4 – Failure to comply w/ requests for admissions

Back 34

A party who requests an admission may move to deeminte the sufficiency of the answer or objection.

if a party faild to admit the genuineness of any document or the truth of any matter and the other party has to prove it the costs of proving it wil be awarded to the party who had to prove it.

Front 35

– failure of notice to attend depo
(i) A party notices a depo then fails to show

Back 35

party noticing it can be sanctioned

(ii) Failure of witness to attend can lead to sanctions of witness, or atty that noticed depo

Front 36

What are just sanctions?

Back 36

(d) Requires “just” sanctions
(i) Direct relationship b/t offensive conduct & sanction
1. nexus b/t sanction and offending person, and b/t sanction and offending conduct
2. Thus, sanctions can be imposed on the lawyer alone, if the situation calls for it.
3. If conduct does not hinder π’s ability to present his case, striking Δ’s pleadings didn’t properly address the wrongful conduct. Also, was excessive.

Front 37

(ii) Are sanctions excessive? Does the punishment fit the crime?

Back 37

1. In death-penalty cases, shouldn’t be given except for a) flagrant bad faith or b) callous disregard for the rules of discovery

Front 38

(iii) When Δ withholds incriminating witness statements until the last possible minute, it was an excessive sanction to deem certain facts established as a matter of law

Back 38

1. It was excessively severe, and lesser sanction of making Δ pay the costs of continuance and time to allow π to depose the witnesses would have been enuff
2. It was also aimed at the wrong party – offender was atty, client was punished.

Front 39

Can a court impose discovery sancion post trial for discovery misconduct it knw about pre-trial?

Back 39

(e) A court may not impose discovery sanctions post-trial for discovery misconduct that it knew about pre-trial. It can’t hold it over the party’s head. Once trial begins, complaints about known pre-trial discovery violations are waived.

If you know pre-trial that your opp has committed sactionanable pretrial conduct you have to move pre-trial to

discovery abuses that are known before trial require you to move for sanctions before trial.

Front 40

Are witness statements an exception to the W P privilege?

if they are not provided, what is the propert discovery sanction?

Back 40

YES. they are not privileged.

What is the middle ground between gettign costs and haveing the statements being taken as true?

Perhaps excluding contradictory testimony?

Front 41

MANDAMUS RELIEF FOR DISCOVER ABUSE

Are you entitled ot mandamus relief for discovery abuse?

Back 41

i) In discovery: when the order denies client his rights and leaves him w/o adequate appellate remedy

ii) Side note: if you know what you’re looking for, you can send well-tailored discovery requests to non-parties, even if it seeks bias/interest impeachment evidence, if you know what you’re looking for.

Front 42

What is the cost benefit analysis that goes in to a decision of whether mandamus is an appropriate remedy?

Back 42

v) Elements:
(1) Clear abuse of discretion
(a) Rarely litigated – it’s all about adequacy of appellate remedy.
(2) Relator has no adequate remedy on appeal
(a) It’s now a cost-benefit analysis
(i) (if legislature indicates his opinion on balance, when it requires dismissal, e.g.)
(b) To avoid forcing legislature to make more interlocutory appeal statutes, they loosen up mandamus availability.
(c) If benefit of mandamus, in the view of the appellate court, outweighs the cost (in terms of delay, expense, staying trial court, disruption)→no adequate remedy→mandamus is proper.
(d) Currently, there are very few other guidelines.

Front 43

Independent Medical Examinations

what are they?

Back 43

(1) Medical exams
(2) Usually experts proposed/selected by Δ
(3) Very defense-oriented

Front 44

What is the idea behind IMEs and hwo are they performed?

Back 44

(5) Theory – person examined is going to their own doctor already, and Δ wants someone who they can say also examined the patient

Requires a motion (no later than 30 days before end of discovery period)
Requires “good cause”

Front 45

Is it restricted to just physical examinations?

Who can perform them?

Back 45

no can be a physical or mental examination

BUT

can be a physical or mental examination by a qualified physician (read psychiatrist for mental bc he is MD).

a party can request exam by psychologist (PHD) if the opposing party has designated a psychologist as a testifying expert ofr had disclosed a psychologists records for possible use at trial.

Front 46

Is a claim of mental anguish enough to put the mental condition at issue?

Back 46

(8) Claim of mental anguish dmgs is not sufficient to put mental condition “at issue” in a way that would allow a psych IME

Front 47

(9) Criteria for getting an IME

Back 47

(a) Examination relevant to issues genuinely in controversy in the case (“at issue”) OF LEGAL CONSEQUENCE (RK v. Ramirez)
(b) Rzbl connection b/t condition in controversy and the examination
(c) Not possible to obtain the desired information through less intrusive means

Front 48

Who designates who the examiner is?

Back 48

(10) TC usually gives in to Δ’s request of who the examiner is, but Δ does not have unbridled discretion to choose the examiner
(a) e.g. if you can show from expert’s/examiner’s history that they will be biased towards this Δ, or always diagnose the same way, anything that show’s he’s not truly independent

D also pays for these exams

Front 49

Discovery outside of Texas

if by agreement?

What about a non-tex resident outside of the control of the parties?

Back 49

1. Depo by agreement = no problem - notice party and go to where witness is.

2. Can't subpoena an out fo state witness with a TX subpoena.

Front 50

How do you get an out of state subpoena?

Back 50

4ways

1. Notice
2. Letter rogaotry
3. agreement
4. court order

Front 51

Letter Rogatory

Back 51

Make a motion in the court in which the action is pending.

Its a lette asking the sister court to compel a witness to show up to depo.

YOu have to look up what equivalent court you need this done in. BE specific

must have time and place to have witness submit to oral depo or written.

ask that the testimony be reduced to writing and returned along with exhobit to party requesting depo.

Front 52

FEDERAL COURT DISCOVERY RULES

When is discovery authorized?

Back 52

Not until there has been a discovey conference.

Front 53

ii) Federal (vs. Texas)
(1) Discovery cutoff:

Back 53

(a) No specific provision for discovery cutoff date (by default)
(b) (as opposed to level 2 discovery in TX, or specified cutoff by order in lvl 3)
(c) BUT, scheduling order routinely has discovery cutoff.

Front 54

What is set in the discovery conference?

Back 54

(2) Deadlines:
(a) Certain disclosures
(b) Experts
(c) Discovery supplementation, amendment, correction
(d) Parties can agree to vary the scheduling order by written stipulation, as long as it doesn’t impact trial/hearing dates.

Front 55

iii) Chronology of Federal Discovery

Back 55

(1) (TX – discovery starts as soon as the case is filed – can include discovery req. w/ the petition!)
(2) Can’t send discovery requests until there has been an initial discovery conference (R26(f))
(a) Conference just includes the parties
(b) Should be had as soon as practicable, but at least 21 days b4:
(i) scheduling conference; or
(ii) proposed scheduling order is due
(c) Can be via conference call
(d) Parties to discuss discovery issues necessary to compose proposed scheduling order

Front 56

In fed court does disovery have to be triggerred?

Back 56

No. You have discovery obligations without being told. like in texas where you wait to get an RFD

initial discovery conference triggers disclosures

Front 57

When must the parties meet for the discovery conference?

Back 57

(b) Should be had as soon as practicable, but at least 21 days b4:
(i) scheduling conference; or
(ii) proposed scheduling order is due
(c) Can be via conference call
(d) Parties to discuss discovery issues necessary to compose proposed scheduling order

Front 58

What is required to come of the conference?

Back 58

The parties have to submit to the court a written report within 14 days of the conference telling the court the schedule they have agreed upon or the positions they have with regard to the shit they can't agree upon.

Front 59

How soon must initial disclosures be made in fed court?

Back 59

Also within 14 days of the discovery conference. No trigering mechanism

(g) W/in 14 days after initial discovery conference, must have filed initial disclosure
(h) Initial disclosure is due w/in 14 days of initial discovery conference

(i) 26(a)(1) has the content required
(ii) Must disclose:

1. individuals w/ discoverable info wrt your claims/defenses (potential witnesses)
2. Copy of all docs (incl. electronic), or where the location thereof, which you may use in support of your claims/defenses
3. Computation of dmgs
4. any relevant insurance agreements

Front 60

What are the three rounds of discovery in fed?

Back 60

1. Intitial disclosures - have to disclose people that are aligned iwth you, etc. see previous slide
and creation of scheduling orders

2. Expert Discovery
(3) R26(a)(2) – automatic expert disclosures
(a) Identity
(b) Written report by retained exps (always required federally)
(c) etc.


3. Pre-trial Disclosures
(4) R26(a)(3) – pre-trial disclosures
(a) Witnesses you’ll be calling
(i) Live
(ii) by deposition
(b) exhibit list

Front 61

iv) Discovery Tools – most same as Texas

Back 61

EXCEPT no requests for disclosure

iv) Discovery Tools – most same as Texas
(1) Deposition
(2) Interrogatory
(3) Request for Production
(4) Request for Entry/Inspection
(5) Request for Medical Examination
(6) etc.
(7) No Request for Disclosure

Front 62

Expert Disclosure: R. 26(a)(2)

Back 62

(1) Applies to retained/specially employed expert witnesses
(2) Disclosure of Expert Testimony.
(a) a party must disclose . . . the identity of any [expert] witness

(3) . . . disclosure must be accompanied by a written report — prepared and signed by the witness — IF THE WITNESS IS ONE RETAINED OR SPECIALLY EMPLOYED to provide expert testimony . . . .

Front 63

What msut be in the expert report?

Back 63

(4) The report must contain:
(a) all opinions the witness will express and the basis and reasons for them;
(b) the data or other information considered by the witness in forming them;
(c) any exhibits that will be used to summarize or support them;
(d) the witness's qualifications, incl. list of all publications authored in the previous 10 years;
(e) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(f) a statement of the compensation to be paid for the study and testimony in the case.

Front 64

What is the timeint of the expert disclosures?

Back 64

(5) . . . must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:

(a) at least 90 days b4 THE DATE SET FOR TRIAL or for the case to be ready for trial; or
(i) (vs. 90 days b4 end of disc. period in TX, for party seeking affirmative relief)
(b) if the evidence is intended SOLELY TO CONTRADICT OR REBUT evidence on the same subject matter identified by another party under Rule 26(a)(2)(B), within 30 days AFTER THE OTHER EXPERT'S DISCLOSURE

Front 65

Are the parties requird to supplement the disclosures?

Back 65

(6) The parties must supplement these disclosures when required under Rule 26(e).

in a timely mannerif hte party leans that in some mterial respec the disclusure or repsonse in sinclimte, tz. and if the adidtional or corrective info has not otherwise been made known to the other side during discovery or in writing or

when ordered by the court.

Front 66

Are drafts to the expert reports privileged?

Back 66

In texas we have a waiver of WP between party and testifying expert, but not so in fed. New Rule: 26b4

drafts are privileged.

Front 67

Organizational depo (30(b)(6)):

Back 67

(1) Works like in Texas

Front 68

Depos in fed. how are they taken and when is leave required?

Back 68

30d - depos limited to 1 day of 7 hours.

vii) 30(a) depositions
(1) Taken w/o leave of court usually, but sometimes leave is required.
(2) Leave required if:
(a) You’ve exhausted your allotted depositions (default of 10) and would like to depose more
(b) You want to depose someone that has already been deposed once in this case
(c) You want to depose someone b4 initial discovery conference

Front 69

How long do you have to change depos in fed?

Back 69

once you ar notified by the officer that the transcript or recording is avail you must be allowed 30 days to review and make a list of the changes and ther reasons for making them.

Front 70

deposition on written questions

how much time do you get?

Back 70

No set deadline but you have to give time for 14 days to respond with cross, 7 days for redirect, 7 days for recross.

Front 71

How many interrogatories do you get?

Back 71

xi) 33 – interrogatories
(1) Limited to 25, except by leave of court

Front 72

c) Resisting discovery in Fed Ct.

Back 72

i) Rule 37(a)(3) – evasive answer/response → court should treat as a failure to respond
ii) Rule 45(c)(2)(B) – Objecting to a subpoena ordering to produce docs: written objection must be served b4 the earlier of the time specified for compliance, or 14 days after subpoena is served.

Front 73

d) Federal Spoliation Law:

Back 73

i) Federal spoliation/evidentiary law applies in diversity suits in federal court
ii) Duty to preserve evidence is same as TX
iii) Evidentiary presumption is governed by federal law
(1) Requires a showing of bad faith or bad conduct
(2) Some jdxs will give adverse inference instruction on lesser showing, e.g. negligence.

Front 74

Scope of Formal Discovery: Relevance

General Rule

Back 74

parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. Court MAY order discovery of ANY MATTER RELEVANT TO THE SUBJECT MATTER INVOLVED in the action only if the party seeking such discovery makes a showing of GOOD CAUSE.

Front 75

(1) Fine-line distinction, often not relevant.

Back 75

But e.g. Dillards case, where man bringing suit vs Dillards for wrongful detention, not yet asserting discrimination claim, sought wrongful detention claim data from all of Dillards 220+ stores nationwide. Wasn’t relevant to his claim or defense, but was relevant to the subject matter involved in the action.

Front 76

What is rolling discovery?

Back 76

an agreement thte the producing party id's electronic discovery through a cursory review for privilege subject to being snapped back.

Front 77

Pre suit discovery in fed:

how is it different from Texas?

Back 77

It is broader in Texas:

in texas you can tak a pre-suit dopo to:
1. perpetuate testimony
2. investigate a claim

you cannot take a pre-suit depo to investigate a claim in fed.

Front 78

What is the difference in fed and in texas for asserting a privilege?

Back 78

Texas 2 step:
1. say you are witholding due to privilege and
2. wait for objectin party to ask for a privilege log

In fed only one step:

we are witholding due to a privilege and here is our privilege log.

Front 79

Objecting to interrogatories

Back 79

object within time period and be specific or else you waive

Front 80

Objecting to RFPs

Back 80

1. an objection to a partmjst be specific and allow inspection of the part that was not objected to

2. You can object to the form of electronic docs requested. if you object to form or no form was specified, you must stte th efomr that you intend to use.

Front 81

Option to produce business records in lie of answering interrogatorires

Back 81

if burden is equal on both parties, the responding party may anser by specifing what records need to be reviewed to ge those answers and giving them a reas opportunity to come review them.

Front 82

Difference between texas and fed with regard to motion to quash depo

Back 82

in texas, if you respond with motion to quash within 3 biz days depos are frozen until ruling.

in fed, depos still happen. but if you have not been given 14 days notice of the depo an file a motion for protective order and the motion was still pending when the dep was taken, the depo mus tnot he used agains ttien mocin party.

Front 83

Duty to perserve in 5th

Back 83

Even though Lafayette says no sanction absent bad faith, the language was too broad. should be that no severe sanctions will be levied absent bad faith.

But know that there is a differenc in circuits (for example, 2nd says negligence is culpable conduct)

A FAILURE TO TAKE REASONABLE PRECAUTIONS DOESN'T EQUAL NEGLIGENCE, IT EQUALS BAD FAITH. a claim of inadvertance will fail absent the taking of reas precautions to preserve.

Front 84

Privilege Burdens in Fed court

Back 84

iii) Privilege Burdens –
(1) Party seeking discovery has to allege non-privilege + non-disclosure
(2) Party asserting privilege (resisting discovery) bears the burden of proving it

Front 85

Merrill v. Waffle House, Inc.:

Back 85

(1) Party resisting discovery has the burden to show the evidence is not relevant.

(2) i.e. party resisting discovery has burden to prove whatever objection/privilege

Front 86

E.E.O.C. v. Renaissance III Organization:

Back 86

(1) A case proposing that the party seeking discovery has to prove threshold issue of discoverability
(2) (i.e. relevant and admissible/rzbl likely to lead to discovery of admissible evidence, non-priv’d)

not majority view

Front 87

f) Scope of Formal Discovery: Privilege or Other Protection

i) U.S. v. Moore:
(1) Whose privilege law applies?

Back 87

(2) If state law supplies the rules of decision (diversity; state law COA), we use state privilege law
(3) If it’s a federal question/CoA, use federal privilege law

(4) No doctor/patient privilege under federal law.

Front 88

ii) Work Product
(1) FRCP 26(b)(3)

Back 88

(1) FRCP 26(b)(3)
(a) Protected, unless
(i) Otherwise discoverable; and
(ii) Shows substantial need + unable to acquire rzbl equivalent w/o undue hardship.

(b) But, must protect atty/other representative’s mental impressions or opinions
(i) Near absolute protection for “core” W/P

(2) Defined as:
(a) Produced in anticipation of litigation;
(b) By or at the direction of counsel

In fed, termed fact work product and opinion wp

Front 89

(3) Portis v. City of Chicago:
(a) Database of arrest data

Back 89

(a) Database of arrest data
(i) W/P? Yes.
(ii) But only “fact work product” (non-core)
(iii) Not “opinion W/P (“core” or similar)

Front 90

(b) How to identify implied mental impressions W/P:

Back 90

(i) Compare to exemplary cases
(ii) Cataloging 2400 boxes of docs – miniscule insight into atty’s mental processes by method of cataloging was insignificant
(iii) Selection of 3-4 documents to review out of 1400 gave great insight into what the atty thought was important about this case.
(iv) Take our situation and compare to the two – which is it more like?

(v) The Test: the extent to which producing the item/index/catalog to the other party would reveal the attorney’s opinions and mental impressions

Front 91

How do you show Unavailability/Substantial need in determining whether to allow discovery of "fact" wp (non-core)

Back 91

(a) If opposing party is planning to use it at trial, probably satisfies substantial need
(b) Undue hardship can sometimes be shown be demonstrating that refusing disclosure is just delaying the inevitable and jacking up litigation costs. It would be wasteful to make the other party re-create the data compilation/database that other party is withholding.

(c) This can be a good tool for π to pull databases of otherwise-accessible data made by Δ’s atty.
(d) BUT, you’ll generally have to reimburse the producing party for approx. half the cost.

Front 92

Protecting Privilege

First American

and Comm Bank

Back 92

1. meant to submit docs in camera and not under seal. waive the privilege as to the 7 docs but not as to entire subject matter that the former employees know.

2. parties tried to snap back but court refused because hey took no reasonable precaustions to protect themselvces. but the party in this case under the fed snap back has a duty to freeze the docs, instead hey used them in MSJ. so the court ordered them to not be able to use tehm

Front 93

Written Discovery

what is the same?

Back 93

i) Requests for Production or Inspection - same

ii) Interrogatories - same

Front 94

How are Requests for Admissions different?

Back 94

(1) Can admit ultimate facts, application of law to fact, but NOT pure questions of law
(2) Generally used to get admissions of undisputed facts and narrow the battlefield.

(3) To withdraw a deemed admission, must show:
(a) Would serve presentation of the merits of the case; and
(b) Would not prejudice the party that obtained the admissions

(c) “Good Cause” is NOT an element, but since setting aside is in judge’s discretion, I’m sure he takes presence/absence of good cause into consideration.

Front 95

Depositions
what are the rules

can you automatically review/ammed depo?

Back 95

(1) R 30(e) – must request the right to review/amend depo if you want to enforce the right.

Different than in Texas where you automatically get the right

Front 96

Federal Depo Objections

Back 96

(2) R 30(c)(2) – objections in depo
(a) Must be noted on the record
(b) But if objection is noted, the depo can continue on
(c) 30(d)(3) – motion relating to conduct of a deposition
(d) Much less limiting than TX rule
(e) But still, must object concisely and in a way that does not seem argumentative or suggestive of the answer.
(f) If you think opposing counsel is coaching, should object on the record.

(3) R 32(d)(3)(B) – objection to error or irregularity
(a) If the error could have been corrected at the depo, you must object then or waive the error.

Front 97

The Rule in a Depo:

Back 97

(4) The Rule in a Depo:
(a) The Rule can’t be invoked as a matter of right in a deposition
(b) Doesn’t mean people can’t be excluded, you just need a court order.
(c) No notice requirement in federal court, unlike Texas.
(d) What if another witness is sitting in at the depo when you get there?
(i) Object on the record
(ii) But do you go on w/ the depo? Probably
1. Unless the conduct is sufficiently egregious to justify suspending the deposition to get a ruling from the judge.
(iii) Notify opposing counsel you’ll attempt to exclude the depo on these grounds if they insist on the witness being present.
(iv) This’ll probably work today

Front 98

Conferences w/atty during depos

Back 98

(5) Hall v. Clifton
(a) Atty/client don’t have right to confer during depo or during recesses
(b) If witness has questions, should ask deposing atty
(c) Docs should be shown to witness’s atty, but atty cannot confer w/ witness about docs
(d) Only conference b/t witness & atty is about whether to assert privilege

Front 99

What is the diff between party and non-party witnesses

Back 99

(a) Conversations b/t non-party witness and atty during depo is non-privileged
(b) Thus, the first question after recesses is often “Did you speak with opposing counsel during the break? What did you talk about?”

Front 100

(7) Eiken:
(a) Under federal law, how do we treat changes/errata sheets correcting depos?

Back 100

(b) No strict rules on how the court will treat the changes
(i) Some allow only typographical corrections
(ii) Some allow legitimate substantives changes + reason
(iii) This court allows changes and allows impeachment by changes
(iv) Some courts wholly disallow changes

Front 101

i) Expert Discovery
i) Disclosure of Testimony – 26(a)(2)
(1) Second set of automatic disclosures

Back 101

i) Disclosure of Testimony – 26(a)(2)
(1) Second set of automatic disclosures
(2) Must designate experts you anticipate calling
(3) Automatically applies unless court sets a different date – must be designated 90 days b4 trial, unless being used only for rebuttal purposes (then must be disclosed 30 days after the other experts is deposed).
(4) For experts that you RETAIN, must also produce an expert report.

Front 102

When can/must you supplement?

Back 102

changes to experts reprot and deop must be disclosed by the time the party's pretrial disclosures are due.

Front 103

What is the timing with regard to when an expert's depo can be taken?

Back 103

iii) 26(b)(4) – deposition only to be performed after expert report. Other part is entitled to postpone depo until after report.

Front 104

Who pays experts when the opposing side deposes?

Back 104

iv) 26(b)(4)(D) – paying – different from Texas. Deposing party pays the expert’s fee for the time spent by the expert in responding to discovery/being deposed, even if it’s the opposing party’s expert.

unless manifest unjustice

Front 105

v) 26(e)(2) – additions/changes to expert report & deposition

Back 105

(1) Must be by the time of the pre-trial disclosures under 26(a)(3)
(2) Only applies to experts required to give reports → retained experts
(3) Must amend/supp for everything, not just basis/opinions

Front 106

– Failure to disclose or supplement

Back 106

(1) If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party IS NOT ALLOWED TO USE THAT INFORMATION OR WITNESS TO SUPPLY EVIDENCE ON A MOTION, AT A HEARING, OR AT A TRIAL, unless the failure was SUBSTANTIALLY JUSTIFIED or is HARMLESS. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(a) may order payment of the rzbl expenses, including attorney's fees, caused by the failure;
(b) may inform the jury of the party's failure; and
(c) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).

Front 107

When does a treating physician morph into a retained expert?

Back 107

(1) Treating physician not necessarily a retained expert, but HE CAN BE
(2) How can you tell?
(a) What is the expert’s role?
(b) If testimony limited to facts/circumstances of ordinarily treatment → just non-retained expert
(c) If doctor is going further, creating addt’l opinions or research strictly for the purpose of litigation, he transforms into a retained expert (presumably you must also pay him for it)
(d) And especially if you ask him to come up with the extra opinions/stuff

(3) If he becomes a retained expert – you must furnish an expert report
(a) And it covers all his opinions, including those made b4 he became “retained”

Front 108

Missed depo shit

a party msut obtain leave of court when:

Back 108

Parties have not stuputlate to the depos and:

1. the dopo would result i nmore thatn 10 depos being taken by ps ds or 3pds

2. the deponene t=ahs already been deposed

3. seeks to take depo before the intial conference

also written depos count as part of your 10.

Front 109

Notice to bring docs (duces tecum)

Back 109

again reasable notice, but...

in fed no 10 day notice before subpoena requirement to bring docs to depo

Front 110

Notice of another method

Back 110

requires prior notice of alt method of taking depot (does not require 5 days notice like TX for any recording of depo other than stenographic means)

Front 111

Reviewing docs in depos

can an atty ask what docs you have reviewed?

Back 111

Yes can ask. id of docs not privileged, what's in docs is.

but if used to refresh during, attty entiteld to see under fre 612.