Rule 26
What are the three required disclosures?
1. Initial disclosure
2. Expert testimony
3. Pretrial disclosure
What two things cannot be discovered?
1. privileged information
2. work product
What are the 6 discovery tools?
1. required disclosures
2. depositions
3. interrogatories
4. document production requests
5. physical and mental examinations
6. requests for admissions
What are four ways to control discovery?
1. R.26(g) sanctions
2. Objections
3. Spoliation
4. R.26(c) protective orders
What rule generally governs pretrial case management?
R.16
What is the scope of discovery?
1. Relevant to any claims or defenses
2. Non-privileged
3. proportional to the needs of the case
What is attorney/ client privilege (3 elements)?
1. communication
2. between an attorney and client in confidence
3. for the purpose of providing legal advice
What are the 4 required/initial disclosures?
1. witnesses
2. documents
3. computation of damages
4. insurance
What is the difference between R.26(g) and R.37(b) sanctions?
R.37 offers a more robust list of sanctions
What is the pretrial timeline?
1. file a complaint
2. service
3. R.26(f) meet and confer
4. R.16(b) scheduling conference
5. Other pretrial conferences
6. R.16(e) final pretrial conference and pretrial order
What is R.26(e)?
Supplementation-- a party who has made disclosure under R.26(a) must supplement or correct its disclosure in a timely manner if the party learns that in some material respect the disclosure is incomplete or incorrect and corrective information has not been made known to other parties.
What is work product (3 elements)?
1. Material
2. Prepared in anticipation of litigation
3. By a party or representative
How many written interrogatories can you have?
25 max
When can you file a R.37(b) motion for sanctions?
1. After the party fails to comply with a court order compelling discovery.
2. R.37(d) if the opposing party does not object or respond at all
When can a scheduling order be modified?
for good cause
What is R.26(f) and when does it occur?
Meet and confer
occurs 21 days before scheduling conference or order.
When can work product be discoverable? Name the case.
Hickman v. Taylor
1. substantial needs
2. undue hardship
Can never obtain mental impressions, conclusions, legal theories, and opinions
How do you request documents?
R.34(b)- describe with reasonable particularity the documents or category of documents or things you seek.
What are the requirements for a protective order?
Movant must (1) have good faith conferral and (2) show good cause for the protective order to protect from annoyance, embarrassment, oppression, or undue burden and expense.
When can a final pretrial order be modified?
only to prevent manifest injustice
What is R.26(g)?
Certifications
lawyers must sign a discovery response certifying that she has made a (1) reasonable inquiry, (2) it is correct and complete, (3) no improper purpose, and (4) neither unreasonable nor unduly burdensome before submitting a response.
What are the policy reasons for work product protection?
1. Chilling effect
2. Giving the requesting party a free ride
3. lawyer as a witness
When will the court order a physical or mental examination?
Sacramona v. Bridgestone/Firestone
1. the physical condition is in controversy, and
2. good cause is shown
What are the requirements to prove spoliation?
1. the party with control had a duty to reserve
2. destroyed due to culpable mental state
3. destroyed evidence was relevant
What are the factors the court considers when deciding to modify a final pretrial order?
Davey v. Lockheed Martin
1. prejudice or surprise to the party opposing trial of the issue
2. the ability of the party to cure any prejudice
3. disruption by inclusion of the new issue
4. bad faith by the party seeking to modify the order
5. timeliness of the motion to amend