Discovery and Disclosures
Rule 26(c)
Protective Orders
Court may make an order to protect a party from annoyance, embarrassment, oppression, undue influence or expense, etc.
Rule 30
Depositions
a) w/o court's leave, there is a limit to 10 depos on each side (one person may only be deposed once)
b) Subpoenas to an organization must identify a specific person
c) state objections concisely
Unless exempt, stipulated or ordered, parties MUST w/o awaiting discovery provide
1) the name and contact info of anyone w/ discoverable information and the subject of said discoverable info
2) copy or description of all docs, ESI, and things in party's custody/control
3) computation of damages and materials that computation is based upon
4) disclose any applicable insurance
Rule 26(a)(1): Initial Disclosures
Record of the type of documents not disclosed
1) expressly make claim
2) describe nature of material w/o revealing its privileged contents
Rule 26(b)(5): Privilege Log
Time to respond
Unless court specifies otherwise, any required response to an amended pleading must be made
1) within time remaining to respond to OG pleading
OR
2) within 14 days of service of amended pleading
-> whichever is later
Timing and Sequence
Rule 26(d)
Interrogatories
Rule 33
At or w/n 14 days of Rule 26(f) conference
For parties joined later there is 30 days
Rule 26(a)(1)(c): Timing for Initial Disclosures
Communications between attorneys and clients
Does not require anticipation of litigation to be protected
Subject Matter Waiver: If a certain subject must be revealed, all related discovery may be discoverable because of the related subject matter
Confidential: not intended to be revealed to third parties
Attorney-Client Privilege
Rule 15
A party may amend its pleading as a
matter of course w/n
1) 21 days after service of pleading
OR
2) if it is a pleading that requires responsive pleading - w/n 21 days of service of pleading, w/n 21 days of responsive pleading, or w/n 21 days of service of a motion under 12(b), (e), or (f)
->whichever is earlier
Rule 26(e)
Supplementation
Rule 34
a) A party may request production from any other party of any docs, ESI, tangible things, entry to property, photograph, inspection, etc.
-> must be w/n responding parties control
-> no limit on # of productions
->limits overly broad, cumulative requests
b) Contents:
describe with reasonable particularity, specify reasonable time, place, and manner, and specify form of ESI
c) Responses and Objections:
respond in writing w/n 30 days of service
must respond to each item
objections must specify part of request
may object to form of ESI but must state alt form
At least 30 days before trial, parties must present witnesses deposition testimony and exhibits to be presented at trial
Rule 26(a)(3): Pretrial Disclosures
If a party accidentally reveals privileged info, the receiving party must dispose, destroy, sequester the info
It is not to be used at trial
Party who accidentally revealed info has to recognize they made a mistake and then make efforts to fix it
Rule 26(b)(5)(B): The Clawback
AKA answer to counterclaim
Only necessary in response to a counterclaim
Not necessary in response to affirmative defense
Reply
Signing of Disclosures, Discovery Requests
Rule 26(g)
Court may order a party to submit a mental/physical exam Exam must be made with good cause and with notice to party
Rule 35
a) A person who qualifies an expert may be deposed and their written report must be disclosed before depo
b) drafts are protected because they are part of trial prep
c) communications between expert and attorneys are protected EXCEPT for
i. compensation for depo/testimony
ii. facts/data provided
iii. assumptions provided by attorney and relied upon by expert
Ordinary Fact Witness: No protection
Testifying Expert: Some protection
Non-Testifying Expert: Immune from discovery
Rule 26(b)(4): Trial Prep: Experts
Prepared in anticipation of litigation
Work Product Doctrine
The amendment being made presents a claim/defense that arises from the same transaction as the original pleading
Relation Back of Amendments
Parties may obtain non-privileged and relevant discovery that is proportional to its use at trial
The benefit of discovery must outweigh the burden/expense of obtaining it
Court will limit discovery that
1) overly cumulative, duplicative or other discovery would be more convenient or less burdensome
2) the party seeking discovery had ample opportunity to obtain the info via discovery
3) the proposed discovery is outside scope
Rule 26(b): Scope of Discovery
Rule 36
Requests for admission
a) must present identity of any expert witnesses it may use at trial
b) the experts written report
c) if the expert is an OFW and does not have a written report, they must disclose the subject matter
Rule 26(A)(2): Disclosure of Expert Testimony
a) Typically, a party can not discover privileged material EXCEPT for
1) there are exceptional circumstnaces
2) when there is no other means for the info necessary to be discovered
b) even if court orders discovery of above info it must still protect mental impressions, conclusions, opinions, or legal theories of an attorney or any other representative of a party concerning litigation
c) a party's previous statement may be requested
Rule 26(b)(3): Trial Prep Materials
Other Amendments require...
A) Opposing party's written consent
or
B) The court's leave