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24 Cards in this Set
- Front
- Back
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Discovery Devices
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PAIDMAID
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Time to Respond to Disc Requests
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b. At least 20 days must be given to allow response to a PAID MAID discovery demand, EXCEPT a demand for addresses (10 days), OR a demand for a bill of particulars (30 days)
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Incomplete/Misleading Discovery Responses
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c. If a party supplies PAID MAID information, but later learns prior to trial that the earlier response was incomplete, or materially misleading, there is an ongoing obligation to properly reveal this info to the opposing party
i. Failure to do so may result in disclosure sanctions (STRIPS) |
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Proper Discovery Matter
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d. NY allows full pre-trial disclosure of all matter that is material and necessary (useful) to assist a party in preparing for trial, REGARDLESS of who has the burden of proof at the trial
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Duty to confer
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e. In ANY ct motion involving pre-trial discovery, the atty making the motion MUST submit an affidavit of good faith showing that prior to the motion, she conferred with her adversary in good faith to resolve the issue, OR a good reason why no conversation took place
i. Obligation to settle the matter between themselves and not bother the court |
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Duty to disclose Insurance Policies
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f. Upon demand, a D must disclose the contents of ALL liability insurance policies
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Testimony of Experts
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g. Unlike federal practice and 44 other states, NY DOES NOT permit depositions or written interrogatories of opponent’s expert, BUT upon request, a party intending to offer the testimony of an expert retained to testify at the trial MUST disclose IQ SOS:
i. I – expert’s identity, EXCEPT in med mal cases (because doctors apply peer pressure on testifying doctors) ii. Q – the expert’s qualifications (his CV) iii. S – the subject matter on which the expert will testify iv. O – expert’s opinion v. S – a basic overall summary of the grounds that form the basis of that opinion vi. NYAA 49-50 (timeliness of notice of issue – no set date) |
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Parties also entitled to:
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h. On demand, a party is required to reveal the names of any known eye witnesses, but their statements are protected as work prepared for litigation
i. A party is entitled to a copy of his own statement that the opposing party has obtained (Essay 4 Feb 2011) j. A party is entitled to a copy of any surveillance videos made by the D REGARDLESS of whether D intends to offer them at trial – must be demanded |
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What is NOT discoverable under art 31
1/2 |
i. Evidence protected by a privilege, BUT the privilege MUST be raised (CHIMP’S RAP),
ii. Pre-trial discovery into allegations of fault in a divorce action 1. because it would defeat any hope of reconciliation, and it could compel one party who is at fault to settle the action to avoid exposing intensely personal issues 2. Exception: if there exists egregious fault, then fault can be explored in pre-trial discovery, because it could affect the equitable distribution award (i.e. just having affair is not egregious; trying to kill spouse is) iii. Atty’s work product involving the atty’s subjective analysis, trial strategy, mental impressions or conclusions, and other material protected by the atty-client privilege, which is absolutely privileged |
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What is NOT discoverable under art 31
2/2 |
iv. Material prepared by a party in anticipation of litigation, which is conditionally privileged from discovery UNLESS it can be shown:
1. The material cannot be duplicated without undue hardship, 2. The opposing party has a substantial need for that material in order to prepare for trial, AND 3. Withholding would work a hardship v. NYAA 52-54 l. When an atty meets with a witness, her interview notes are protected as material prepared for litigation i. BUT when she meets with a client, those notes are absolutely privileged under the atty-client privilege and the atty work product privilege ii. Accident reports prepared in the regular course of business ARE discoverable UNLESS the report was prepared solely for litigation purposes 1. Ex. At the request of its liability insurance carrier as material prepared for litigation |
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In personal injury litigation, π should ALWAYS
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demand to see if there are any WAIFS hiding
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Protective Orders
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i. Any party or non-party subject to PAID MAID can make a motion for a protective order denying, limiting, conditioning, or regulating the use of any discovery device to prevent unreasonable DEEP abuses:
1. D – disadvantage to a party 2. E - embarrassment 3. E - expense 4. P – other prejudice |
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PAID MAID Pre-Trial Discovery Devices:
P |
a. P - Physical or Mental Examinations NYAA 54-55
i. A party MUST submit to a pre-trial mental or physical exam, BUT ONLY IF: 1. A blood relationship of a party is in controversy, a. Ex. Paternity proceeding, or personal injury claim alleging the D gave π sexually transmittable disease 2. That party has put her own physical or mental condition into issue (can’t compel another party to submit a physical exam) a. Examples: i. ∏ in a personal injury action ii. A D in a K action asserting mental incompetency iii. If child custody is an issue in a case, then both parent automatically place their physical or mental condition (intuition) ii. In personal injury and med mal cases, D’s atty is not entitled to conduct an informal ex parte interview with π’s treating physician UNLESS: 1. Π must give defense counsel HIPPA authorization to allow the discussion, AND 2. Π’s counsel CANNOT participate in the discussion and CANNOT suggest to π’s doctor that she should not talk with defense counsel. |
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PAID MAID Pre-Trial Discovery Devices:
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b. A - Request for Admissions → used to eliminate from the trial the burden of having to prove undisputed, clear-cut matters of fact, which would waste the court’s time to prove
i. Ex. You know exactly where you were hit by a car. No expert has to testify where you were. ii. A demand to admit is deemed admitted UNLESS denied within 20 days 1. BUT that party’s admission is limited to the pending action only iii. If a party unreasonably refuses to admit, then the cost of probing that issue at trial WILL BE imposed on that party iv. The notice to admit can be served at any time after D’s answer, or 20 days after service of complaint, whichever is earlier, AND it can be served up to 20 days before trial 1. A notice to admit can be served in a special proceeding WITHOUT a court order (BAR SAPS |
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PAID MAID Pre-Trial Discovery Devices:
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c. I - Written Interrogatories → numerous pages of written questions sent by one party’s atty to the other party’s atty (depositions are much more valuable than interrogatories)
i. CANNOT be served on non-party witnesses, EXCEPT in matrimonial actions involving a party’s finances and ONLY with court permission ii. ✪Absent a court order, there is a BAN on the use of interrogatories: 1. B – except in matrimonial actions, a party cannot serve both a demand for a bill of particulars and demand interrogatories from the same party (one or the other, but NOT BOTH) 2. A – πs CANNOT demand interrogatories UNTIL after D’s time to answer has expired a. BUT a D can immediately demand interrogatories from a π after being served with process 3. N – where negligence is the underlying sole claim in π’s complaint, then either interrogatories OR depositions can be demanded, BUT NOT BOTH a. If join with another type of coa, then can use both |
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PAID MAID Pre-Trial Discovery Devices:
1stD (1/2) |
d. D - Discovery and Inspection NYAA 47; Essay 1 Feb 2009
i. Unlike EBTs and written interrogatories, which seek testimony, the D&I device seeks real evidence (tangibles/objects/documents) from a party or non-party ii. The party seeking D&I shall set forth the items to be discovered and inspected AND must describe each item and category with particularity iii. A court order is no longer required to demand D&I from a non-party 1. Simply serve a subpoena on a non-party, BUT a copy of that subpoena MUST be mail to all other attys in the lawsuit who also MUST be notified within 5 days from when the evidence is received AND must be made available for their review iv. A medical provider does NOT have to respond to such a subpoena requesting an injured π’s medical records UNLESS it is accompanied by written authorization signed by the patient authorizing release of the records |
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PAID MAID Pre-Trial Discovery Devices:
1stD (2/2) |
v. Documents must be produced in the same way those records are kept in the regular course of business OR ALTERNATIVELY, they must be organized and marked to correspond to the categories in the interrogatory request
vi. A non-party’s response to D&I of business records can be accompanied by an affidavit signed by someone in the business possessing personal knowledge of the practices and procedures of the business setting forth: 1. The records produced are accurate and represent all documents sought by the subpoena, AND 2. The elements of the hearsay business record exception, which then allows those business records to be easily introduced at the trial, WITHOUT the testimony of someone from that business (TRUMP) a. At least 30 days before trial, the party intending to offer this affidavit MUST GIVE the adversary written notice and the opposing party may object within 10 days before trial |
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PAIDMAID
MAI |
e. M – Mental Examination see Physical Exams above
f. A – Demand for Addresses: this demands a certified statement setting forth the residence of a party i. It MUST be complied with within 10 days g. I – Inspection of evidence |
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PAIDMAID
2ND D Depositions (aka EBTs “examinations before trial”) (1/ |
ii. Generally, no court order is required to obtain an EBT, just give at least 20 days notice (25 if by mail) by serving a demand on a party’s atty OR serving (CID’S MAIL) a subpoena on a non-party witness
iii. A court order is required for the following EBTs: BAR SAPS 1. B – before commencing an action 2. A – after a case has been placed on the trial calendar a. BUT REQUIRES unusual or unanticipated circumstances 3. R – party’s refusal to comply with demand 4. S – special proceedings (AID) 5. A – arbitration 6. P - prisoners 7. S – when the state of NY is not a party iv. When a lawsuit is first commenced, ONLY Ds can demand depositions of πs UNTIL D’s time to answer (20, 30, or 40 days) has expired 1. During this period, πs are precluded from deposing any other party |
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PAIDMAID
2ND D Depositions (aka EBTs “examinations before trial”) (1/ |
v. In an attempt to prevent rude and disruptive tactics at depositions, three ct rules:
Rule 1: Attys are prohibited from advising a witness not to ans a question UNLESS: a. It seeks info protected by a privilege b. It seeks patently irrelevant information AND if answer would cause significant prejudice c. The questions violates a prior court order d. The objection would be waived unless an immediate objection was made i. Ex. An objection to the form of the question (see A CLAM’S BAR) Rule 2: Any objection to a question must be succinct and a clear statement for the basis of the objection can be made a. BUT there can be no speaking objections (trying to guide client) Rule 3: A lawyer CANNOT interrupt the deposition for purposes of communicating with the witness UNLESS: a. All parties consent, or b. It is necessary to determine as to whether the witness’s answer would violate Rule 1 above c. Unless otherwise stipulated at the start of the EBT, an objection must be raised immd or waived |
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PAIDMAID
2ND D Depositions (aka EBTs “examinations before trial”) (1/ -aclamsbar |
d. An atty can advise a client not to answer a question if the atty objects to the form of that question - A CLAM’S BAR:
A – it’s ambiguous C – it’s a compound question L – leading questions on direct examination, except for a HAIRY witness (impeaching a witness) A – argumentative and badgering questions that seek no new facts, but counsel is fighting or arguing with the witness M – misquoting a witness’s earlier statement S – it seeks a speculative answer 1. Ex. “What would you had done if you knew what you now know?” B – an overly broad q A – the question assumes a fact not yet in evidence R – it is a redundant question on direct examination that has been previously asked and answered e. If don’t object, the improperly formed question will be introduced at trial vi. After the depo is complete, it is typed by the stenographer, and forwarded to the party or non-party witness to read, make corrections, and sign and return within 60 days; if not prty who took ebt can treat it as signed |
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Deposition testimony can be used at the trial in 3 ways:
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1. If the nonparty witness is unavailable to testify at the trial, then the EBT testimony is admissible as a hearsay exception of prior testimony, and it can be read to the jury as evidence in chief, PROVIDED the following foundation (condition) is first laid:
a. Notice of the EBT was given to the party against whom the EBT is being used b. The non-party witness is unavailable to testify at the trial i. She died, is too sick, outside the state, or she is more than 100 miles from the trial ii. EXCEPTION: EBT of a doctor that can be introduced without evidence of unavailability 2. EBT of a party or non-party who is testifying at the trial can always be used to impeach that witness as a prior inconsistent statement 3. The deposition of an available or unavailable adverse party is always admissible as the admission of a party opponent for ANY purpose a. Ex. As evidence in chief in proving a prima facie case or defense, or it can be used in rebuttal |
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Discovery Sanctions
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a. Sanctions MAY be imposed if a party:
i. Chronically and willfully refuses to comply with court-ordered PAID MAID discovery ii. Negligently or intentionally failed to preserve critical evidence before it could be inspected by the opposing party, resulting in prejudice to the other party iii. Failing to make a required supplemental disclosure iv. Improperly obtaining pre-trial discovery, which prejudiced a substantial right of another party. NYLO 194-95; Essay 4 Feb 2011. |
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Discovery Sanctions (Procedure)
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b. Usually, when a party fails to comply with a discovery demand, the procedure is to make a motion to compel disclosure and to ask the ct for DRI2PS sanctions:
i. D – dismiss the action against the DRIPS π, or enter a default judgment against a D ii. R – court will resolve certain issues against that party iii. I – impose atty’s fees and punitive sanctions iv. I – where a party destroys evidence either negligently or intentionally, then an adverse inference will be given to the jury, which may infer that the destroyed evidence would be unfavorable to the party destroying it v. P – preclude that party from offering evidence on that issue vi. S – strike that party’s pleading or any part thereof |
