Req. Disclosures
5 Tools
Scope of Discovery
Enforcement
Everything Else!
100

When are required initial disclosures?


R. 26(a) 

Very early in case

At least 30 days before trial



100

What are depositions?

R. 30 & 31 Deposition (deponent testifies orally under oath, answering q’s that are posed)

  • q’s might be oral – depo under R. 30
  • written q’s – depo under R. 31
  • May take depo of party OR non-party. But should subpoena the non-party otherwise they don’t have to show up
  • Notice of Deposition for everyone and subpoenas for non-party
100

What is the standard of discoverability? Explain!

Parties can discover material that is relevant to a claim or defense and proportional to the needs of the case

R. 26 (b) (1) Standard of Discoverability

(1) Not proportional if burden of producing it outweighs the likely benefit (ex. Emails deleted from server – not likely info would help case, v. expensive and difficult. But up to court and lot of discretion there)

(2) Relevant can be broader than admissible to trial

100

What is a protective order/motion to compel? 

(FRCP 26(c)/37(a))

addressed to anyone to trigger judicial oversight

courts granted broad discretion to protect parties from annoyance, embarrassment, oppression, or undue burden or expense

court may also allow only limited discovery on certain issues to see if it will be necessary to move forward on other matters

100

Does Rule 11 apply to discovery?

Nope! 

Check out 26(g) instead

200

Expert Testimony?

26 (a)(2) 

Much later in case

Need to turn over even if other side didn't ask for it 

200

What are interrogatories?

R. 33 Interrogatories

  • Written questions answered in writing under oath. 30 days to answer
  • Interrogatories can be sent ONLY to parties. Can NOT use interrogatories to get info from non-parties
  • If the burden of finding info is substantially same for the party serving the interrogatory as for the party served, it is sufficient answer to provide serving party reasonable opportunity to examine records
200

How do you override work product protection? (hint: what two things do you need to show)

(1) substantial need and (2) the information is not otherwise easily available

Some kinds of work product are absolutely protected: mental impression, conclusions, opinions, and legal theories

200

What are signing/sanctions?

addressed to anyone to police behavior

attorney signature constitutes certification that discovery inquiry is proper

sanctions only obtainable if failure to adhere to discovery request is willful rather than merely negligent

200

Why protect work product?

Avoid free-rider problem 

(example: getting advantage from the paid work of a PI)

300

Harper sues Brittany for negligence -- asking for repayment for a shoulder injury following a vehicle accident. Brittany disputes the seriousness of the injury. During discovery, Brittany seeks access to any images associated with Harper's private Instagram account that show Harper using his arm (such as by playing Twister).

Should the court require the discovery?

Yes, the information is relevant and not privileged.


300

What is a Request to Produce?

R. 34 Request to Produce

  • Written request for access to things (ESI, documents, tangible things…)
  • R. 34 (c) says can use this to get info from parties or non-parties but better serve non-party w/ subpoena
300

What are privileged relationships? Why?

privileged relationships include lawyer-client, doctor-patient, priest-penitent, husband-wife

it is believed that encouraging confidence in these relationships more important than allowing full access to this information for litigation purposes

300

Three ways courts usually become involved in discovery squabble?

(1) Protective Order; responding party asked for a protective order R. 26 (c): asking court to protect you because the discovery request subjects you to undue burden, expense… court has wide discretion—court can deny, limit, etc.

(2) Partial Response; where responding party responds incompletely (ex. answers some interrogatories but objects to others) if party seeking discovery thinks objections are bogus, party seeking discovery will make a motion to compel. Court has to rule on objections

*If court grants that motion to compel R. 37 (a), it is bad to violate that order. There attorney’s can get hit with serious sanctions found in R. 37 (b)(2)*

No Response; party fails completely attend depo, respond to interrogatories…parties seeking discovery does not have to make a motion to compel. Here, you go directly to motion for sanctions R. 37 (d)(1)(a) (very serious, including merit sanctions)

300

What happens before a scheduling order? (hint: meeting)

R. 26(f) Conference of Parties--Planning for Discovery

Before scheduling order, parties have to meet. Talk about potential discovery issues, future litigation issues…parties must also put together very detailed discovery plan

  • R. 26(a)(1) required disclosures must be produced at least 14 days before R. 26(f) scheduling meeting
400

What to include in required disclosures? 

26(a)(1)

Must identify people w/ discoverable info that may use to support your case

Give copies or descriptions of things that you may use to support your case (not info that could hurt your case)

P must give calculation of damages

D must disclosure any insurance

400

Can you request a medical exam? What is a request for admission?

R. 35 Medical Exam

  • MUST get court order. Pretty hard to get—need to show medical situation is in controversy and cause (see 35 (a))
  • Can get a court order or medical exam ONLY for party or someone in the party’s custody or legal control – very narrow (does not include employer/employee)
  • Best example would be parent/child. If parent sues for medical malpractice for child. Assuming good cause and issue in controversy, can get court order

R. 36 Request for Admission

  • To admit or deny any discoverable matter
  • If you do not deny w/in 30 days, you have admitted
  • ONLY available to PARTIES
400
What are three reasons to resist discovery? 

1. relevance

2. privilege

3. procedural violation

400

What can courts do when they get involved?

Courts can issue orders and even sanction people

Courts usually make sides certify they have tried to work it out themselves

400

What are policy justifications for attorney/client privilege?

Hickman v. Taylor

  • attorneys must be free to work with a certain degree of privacy from opposing counsel
  • ultimately interest of clients and justice would be poorly served because lawyers would stop writing down trial strategy and preparation of discoverable
  • “Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary”
500

B bought a car from Harp and later sued for breach of warranty - the Harp Car was a lemon. B believes that Harp Car has flaws in its vehicle manufacturing process.

The lawsuit asks for $36,000, the cost of the vehicle. During discovery B requests "all documents related to the development and manufacture of Harp Car's engine and drive train." Harp estimates that the cost to fully comply with the request will be $45,000.

Is the discovery request valid?

Creates a potential problem under the Rule 26(b)(1) proportionality standard because the amount in controversy is less than the cost of the proposed discovery.


500

What is the purpose of modern discovery?

(1) preservation of relevant information that might not be available at trial

(2) ascertains the issues that are actually in controversy between the parties

(3) allows a party to obtain information that will lead to admissible evidence on issues that are in dispute

500

Tell me about Hickman v. Taylor (issue and holding) :) 

Must opposing counsel demonstrate necessity, justification, or undue prejudice for access to counsel’s written statements, private memoranda, and personal recollections?

Yes. Opposing counsel must demonstrate necessity, justification, or undue prejudice for access to counsel’s written statements, private memoranda, and personal recollections.

500

Riley filed suit in Federal Court against Harper alleging brain injury caused by Harper's negligence. Harper wants Riley to undergo a mental examination in accordance to Rule 35. Riley agreed to a mental examination on the condition that it be conducted by her counselor who is a non-licensed non-certified mind-spirit therapist (who moonlights as a therapeutic vet). Should this examination be ordered?

No, the examiner is not suitably licensed or certified


500


Employee Crouch (Plaintiff) sued Corporate Employer (Defendant) for unlawful discriminatory conduct. Following the Rule 26(f) discovery conference, Employee Crouch wanted to depose an officer with knowledge of the Employer's policies for handling internal complaints. How might she proceed?

Name Employer as the deponent in the written notice, and include that information is being sought on internal complaints procedures so Employer can designate the correct official under R. 30(b)(6).