1
Q
What is discovery?
A
Discovery is the pre-trial exchange of information.
2
Q
What discovery devices are available for parties?(8)
A
- Required initial disclosures
- Oral depositions
- Interrogatories
- Deposition on written questions
- Request for production
- Subpoenas
- Physical & mental examination
- Requests for admissions
3
Q
What discovery devices are available for non-parties? (4)
A
- Oral depositoins
- Deposition on written questions
- Subpoenas
- Physical & mental exam ONLY IF the non-party is subject to a party’s legal custody or control
4
Q
Generally, what does “scope” of discovery mean?
A
Scope means “What can I get?”
5
Q
What does Rule 26(b)(1) govern?
A
Discovery scope and limits. (1) nonprivileged, (2) relevant, (3) proportional
6
Q
What does Rule 26(b)(2) do?
A
limits the general scope of discovery
7
Q
What is the three step analysis for scope of discovery?
A
- is it relevant to any party’s claim or defense?
- is it privileged?
- is it proportional to the needs of the case?
8
Q
What does Rule 26(b)(2)(C)(iii) do?
A
Allows the court by motion or sua sponte to limit (or expand) the frequency or extent of discovery
9
Q
What does Rule 26(d) govern?
A
The timing and sequence of discovery.
10
Q
What is the difference between discoverability and admissibility?
A
Admissibility refers to evidence used at trial. Scope of discovery is broader than scope of relevant evidence at trial. Evidence need not meet the standard of admissibility at trial in order to be discoverable.
11
Q
What rule governs discovery protective orders?
A
Rule 26(c)
12
Q
What is the function of a discovery protective order?
A
A protective order shields parties from annoyance, embarrassment, undue burden, etc. by limiting or altering a discovery request.
13
Q
What is the procedure/analysis for a protective order?
A
- Parties must “meet and confer” and make a good faith effort to resolve their dispute without first seeking the court’s intervention.
- If the meet and confer is unsuccessful, then the party files a motion seeking a protective order under 26(c).
- The court must find good cause for the protective order (annoyance, embarrassment, oppression, burden, etc.)
14
Q
What is a subpoena duces tecum?
A
A subpoena which also orders the production of documents or things
15
Q
What rule governs subpoenas?
A
Rule 45
16
Q
Where may a subpoena be issued?
A
100 mile bulge rule - in a courthouse within 100 miles of the person’s residence or work
17
Q
Can a non-party object to a subpoena? What rule?
A
Yes. Rule 45(d)(2)(B).
18
Q
If a non-party were to object to a subpoena, how long do they have? Rule?
A
within 14 days of service or by the date of compliance, whichever is sooner. Rule 45(d)(2)(B).
19
Q
What does Rule 45(d)(3) do?
A
Allows a court, on motion, to quash or modify a subpoena if one of the situations inthe rule is present.
20
Q
What does Rule 26(b)(2)(C) govern?
A
When discovery limits are required.
21
Q
When is a court required to limit discovery? (3 situations)
A
- Unreasonably cumulative or duplicative, or can be obtained elsewhere that is more convenient, less burdensome, or less expensive.
- Party seeking discovery had ample opportunity to obtain information by discovery in the action
- The proposed discovery it ouside the scope of 26(b)(1)
22
Q
What is the idea behind proportionality in discovery?
A
Discovery is not permitted where its costs and burden outweigh its potential contribution to the litigation.
23
Q
What are the five factors used in considering proportionality?
A
- The amount in controversy
- The importance of the issues at stake in the action
- The parties’ resources
- The importance of the discovery in resolving the issues
- Whether the burden or expense of the proposed discovery outweighs its likely benefit.
24
Q
What is the American Rule?
A
Courts generally follow the American Rule, meaning that each party usually bears its own expenses, including the expense of production of discovery.
25
What is cost-shifting as it relates to discovery?
When courts may diverge from the American Rule and shift some or all of the cost of discovery to the requesting party to protect the producing party from having to endure undue expense.
26
Generally, what two things are weighed in a cost-shifting analysis?
Courts will usually weigh the value of the information sought against the cost of producing it.
27
What are the seven factors weighed for cost-shifting?
1. The extent to which the request will discover relevant information
2. The availability of such information from other sources
3. the total cost of production, compared to damages
4. The total cost of production, compared to each party's available resources
5. The relative ability of each party to control its costs and its incentive to do so
6. The importance of the issues at stake in the litigation
7. The relative benefits to the parties of obtaining information
28
Are the seven cost-shifting factors weighed equally?
No. The first two factors are most important: relevancy and availability from other sources. The last is the least important: relative benefits to parties of obtaining information.
29
What rule governs electronically stored information?
Rule 26(b)(2)(B)
30
What is the four point summary/analysis of electronically stored information?
1. Must be relevant and reasonably accessible
2. Party from whom ESI is sought bears burden to show whether ESI is not reasonably accesible because of undue burden or cost
3. Even if showing is made, Court may still order ESI to be produced if requesting party shows good cause
4. What is reasonably accessible changes with changing tech.
31
What is a privilege?
A privilege rule allows certain parties the right to withold information from disclosure. These are areas where the law has recognized and protected the need for open communication in certain relationships.
32
What is attorney-client privilege? (Broken down into 8 points)
1. Where legal adivce of any kind is sought
2. From a professional legal advisor in his capacity as such
3. The communications relating to that purpose
4. Made in confidence
5. By the client
6. Are at his insistence permanently protected
7. From disclosure by himself or the legal advisor
8. Except when the protection is waived
33
Are just attorneys governed by attorney-client privilege?
No. It's anyone who works in the law office.
34
What is protected by attorney-client privilege? (3)
* The privilege protects only communications between the attorney and client, not the information or facts underlying those communications.
* Almost anything that connects in any way to what the issue is, is privileged.
* The client must be communicating with the attorney for purposes of securing legal advice, even if only seekin representation.
35
Who can waive attorney-client privilege?
Only the client
36
When is an attorney-client privilege waived?
If a third party is present, there is no privilege. The attorney and the client must believe that the communication is being made in confidence.
37
What rule governs work-product privelege?
Rule 26(b)(3)
38
Under work-product privelege, what documents or things are protected?
those prepared in anticipation of litigation
39
What is the majority view regarding the definition of materials prepared "in anticipation of litigation" for work-product privilege? What factors are considered?
Broadly, documents prepared because of litigation. Looks at the date a document came into existence, the date of attorney involvement, and the date on which the lawsuit was first filed or threatened.
40
What is the minority view regarding the definition of materials prepared "in anticipation of litigation" for work-product privilege?
Narrowly, primarily or exclusively used to assist in litigation.
41
What type of information is generally not protected by work-product privilege?
Material generated in the ordinary course of business is generally not considered to have been developed in anticipation of litigation.
42
Under Rule 26(b)(3)(A), when may a court order material to be discovered that would otherwise be protected by work-product privilege?
When (1) they are otherwise discoverable under 26(b)(1) AND (2) the requesting party shows substantial need for it and cannot obtain substantial equivalent without undue hardship from somewhere else.
43
How is "substantial need" shown by a party attempting to overcome work-product privilege?
The party requesting must present a solid indication that the information is important to its case and an inability to obtain equivalent evidence without undue hardship.
44
Under Rule 26(b)(3)(B), if the court orders discovery of materials otherwise protected by work-product privilege, are there any restrictions as to what can be discovered?
Even if substantial need is shown to overcome work-product privilege, the mental impressions, conclusions, opinions, or legal theories of a party's attorney are still protected.
45
What is an expert?
Someone with specialized knowledge
46
What are the two types of experts?
Testifying and consulting
47
What rule governs experts?
Rule 26(b)(4)
48
Between the two types of experts, which ones can be deposed and propounded interrogatories? Which ones can't? What rules state this?
* Testifying can (Rule 26(b)(4)(A))
* Consulting can't (Rule 26(b)(4)(D) - with exceptions
49
What two things are protected under work-product doctrine regarding expert witnesses? What rule?
1. drafts of any report or disclosure (Rule 26(b)(3)(B))
2. communication between attorney and witness - with exceptions (Rule 26(b)(4)(C))
50
What are the exceptions to the work-product privileged communications between experts and attorneys? (3)
1. compensation
2. facts and data used in forming opinion
3. assumptions provided by the attorney
51
When deciding which discovery device to use, consider which of the three purposes it is needed for.
1. preserve evidence
2. find out facts
3. narrow issues
52
What are the 8 discovery tools available?
1. initial disclosures
2. requests for production
3. interrogatories
4. oral depositions
5. depositions on written questions
6. physical and mental exams
7. requests for admissions
8. subpoenas
53
What is a discovery conference? What rule?
Rule 26(f). Parties must "meet and confer" and create a plan for discovery.
54
What does Rule 26(d)(1) do?
Puts moratorium on discovery until Rule 26(f) conference has occurred
55
What rule governs required initial disclosures?
Rule 26(a)
56
Very broadly, what information is required in an initial disclosure under Rule 26(a)(1)(A)? (4)
1. contact information
2. documents
3. damage calculations
4. insurance information
57
When must disclosures be made under Rule 26(a)(1)(C)?
Within 14 days after Rule 26(f) conference or as stipulated or ordered by court
58
When must initial disclosures be made by parties served or joined later under Rule 26(a)(1)(D)?
within 30 days after being served or joined, or otherwise stipulated or ordered by court
59
What does Rule 26(a)(2) require for disclosure of expert testimony?
The identity of testifying witnesses
60
What must parties disclose about evidence in initial disclosures? (2)
* witnesses
* documents
61
What rule governs production of documents?
Rule 34
62
What does Rule 34 Requests for production permit?
Permits parties to demand an opportunity to inspect and copy documents, ESI, and other tangible things possessed by the opposing party that fall within the scope of Rule 26(b).
63
Are requests for production broad or narrow?
Document requests may be very narrow or broadly focused; the dangers of overly broad requests, however, are that they will likely elicit an objection and that even if the documents are produced in response, they may be so voluminous that the actually relevant information is hard for the requesting party to identify.
64
If Rule 34 Requests for Production are not able to be served on non-parties, is there a way to request documents from non-parties? What rules allow this?
Rule 34(c) and 45(a) allow a party to make a similar request of nonparties by serving a subpoean duces tecum
65
What must a request for production state/specify? What rule?
Must describe with reasonable particularity each item or category of items to be inspected; must specify a reasonable time, place, and manner for the inspection; and may specify the form or forms in which ESI is to be produced. Rule 34(b)(1).
66
How long does a party have to respond to a request for production? Rule?
30 days after being served, unless otherwise stipulated. Rule 34(b)(2)(A).
67
How must a party respond to a request for production? Rule?
In writing, specifying the items to be made available, and with objections. Rule 34(b)(2)(B)-(C).
68
How must ESI be produced? Rule?
A party may request a form for ESI to be produced and the responding party may object. If there is no specified form for ESI, it must be produced in a form in which it is ordinarily maintained or in a reasonably usable form or forms. Rule 34(b)(2)(E)(ii).
69
What are the two most common disputes over the form of production of ESI?
1. Production in native format v. production in PDF/TIFF: native format is searchable and provides underlying information
2. Production of metadata: Information describing the history, tracking, or management of the file that is not usually apparent to the reader viewing a hard copy or screen image.
70
What form of ESI production will the requesting party usually prefer? Why?
In native format with metadate intact because it provides information to which it would not otherwise have access to.
71
What form of production will the producing party typically prefer? Why?
PDF/TIFF that withholds metadata beause those formats are less subject to manipulation
72
What happens if the parties cannot agree on the form of ESI production?
They will turn to the court. courts will not always require production in a certain format. Rather, the test is whether the underlying information meets the relevance standard of Rule 26(b)(1) and whether there will be an undue burden or cost on the producing party.
73
Can a producing party strip metadata from ESI?
If it doesn, this is destruction of evidence(spoliation) and subject to sanctions
74
What rule governs interrogatories?
Rule 33
75
What are interrogatories?
written questions sent to the opposing party that msut be answered under oath
76
What is the scope of interrogatories? Rule?
Any relevant area, and may seek opinions, contentions, or applications of law to facts. Rule 33(a)(2).
77
What are contention interrogatories?
Explore the basis for an adversary's position. The court may defer the duty to answer these until discovery has been completed.
78
What is the limit to number of questions interrogatories may ask? Rule?
25, unless otherwise stipulated or ordered by the court. Rule 33(a)(1).
79
How and when does a responding party respond to interrogatories? Rule?
In writing must be answered or objected to. Within 30 days of being served, unless otherwise stipulated. Rule 33(b)(1)-(2).
80
What are examples for how interrogatories are useful?
Can be useful in identifyign witnesses and discovering the location of documents or other tangible evidence, to the extent it hasn't already been provided in the mandatory initial disclosures.
81
In what two ways are interrogatories susceptible to abuse?
* Questions that are simple to write may be very burdensome to answer, especially given the verification requirement
* Although the information within the interrogatory answers is gathered from clients, answers themselves, which are written by lawyers, invariable reveal very little and give generalities when specifics are sought.
82
What rule governs oral depositions?
Rule 30
83
What is an oral deposition?
Rule 30 allows a party to question, under oath, any person thought to have testimony relevant to the dispute, whether or not they are a party to the action.
84
What is the primary benefit of oral depositions?
The questioner may compel the witness the answer questions spontaneously and allows the questioner to follow up on the answers, particularly unexpected revelations, with further questions.
85
What is the role of the deponent's counsel during a deposition?
The deponent has his or her own legal counsel presentt to defend the deposition by objecting to questions based on privilege, confidentiality, form, and relevance. Deponent's counsel also conducts redirect questioning.
86
What limitations exist for oral depositions? Rule?
Each party is entitled to 10 depositions of one day and 7 hours each, unless court grants leave for more/longer. Rule 30(a)(2) and Rule 30(d)(1).
87
Where do depositions usually occur?
In a mutually convenient location, often the interrogating lawyer's office.
88
Is a judge present for oral depositions?
no
89
What notice is required for oral depositions? Rule?
The party taking deposition must provide reasonable written notice to other parties.
90
How is a non-party given notice of an oral deposition?
through a subpoena
91
What must the noticing party specify in its deposition notice? Rule?
The method of recording the proceeding (audio, visual, or stenographic means). Rule 30(b)(3)(A).
92
Is a deposition transcript reviewed? For what? Rule?
A deponent may review the transcript. The review is for error by the court reporter, not a mistake by the parties/counsel. Rule 30(e).
93
What rule governs deposition by written question?
Rule 31
94
What is a deposition by written question?
Similar to interrogatories but is answered in presence of court reporter who takes down responses.
95
When may depositions by oral question be taken without leave of court? Rule?
Any time as long as it is within limits. Rule 31(a)(1).
96
When is a party required to obtain leave of court to conduct deposition by written questions? (4) Rule?
1. If it would result in more than 10 depositions under rules 30 or 31;
2. if the deponent has already been deposed in thecase;
3. if outside the time specified by 26(d);
4. if deponent is in prison.
Rule 31(a)(2)
97
What rule governs physical and mental examinations?
Rule 35
98
Does Rule 35 allow for both physical and mental examinations?
It's one or the other: physical or metnal. It depends on the injuries/information needed.
99
What exception allows non-parties to be subjected to physical or mental examinations?
If the non-party is a person under the custody or control of a party.
100
What rule governs requests for admissions?
Rule 36
101
What are requests for admissions?
Written questions submitted to a party which it must admit or deny.
102
How should requests for admissions be formatted/worded?
They should be broken up as much as possible
103
What may a party request a responding party to admit? Rule?
Anything within the scope of Rule 26(b)(1) relating to facts, the application of law to fact, or opinions about either; and the genuineness of any described documents.
104
What is required to be included if a request for admission seeks the genuineness of a document? Rule?
A copy of the document. Rule 36(a)(2).
105
How long does a party have to respond to a request for admissions? What is the effect of not responding? Rule?
Within 30 days of being served, unless otherwise stipulated or ordered by the court. If not responded to, it is deemed admitted.
106
How should an answer to a request for admission be formatted? Rule?
If not admitted, must specifically deny or state in detail why cannot truthfully admit or deny. Rule 36(a)(4).
107
What rule governs subpoenas?
Rule 45
108
When does the classic discovery dispute arise?
When the requesting party wants information to be produced and the responding party refuses to produce it based upon grounds such as relevance, privilege, work-product protection, or the undue burden or cost it will impose.
109
What are the steps/options for resolving discovery disputed?
1. Meet and confer
2. motion to compel or for protective order
110
What rule governs motions to compel?
Rule 37
111
What are the two specific motions to compel? Rules?
1. Rule 37(a)(3)(A): Motion to compel a disclosure required by Rule 26(a)
2. Rule 37(a)(3)(B): Motion to compel an answer, designation, production, or inspection
112
In what two situations are motions to compel appropriate?
Where the requesting party believes the responding party:
1. Is not legitimately claiming protection for the withheld material (i.e. asserting a privilege that doesn't apply)
2. Has delayed in complying with the production request and appears to be stonewalling rather than making a good faith effort to produce the requested material
113
What rule governs motions for protective orders?
Rule 26(c)
114
What are the two functions of motions for protective orders that we are concerned with? Rules?
1. Forbidding the disclosure of discovery
2. Forbidding inquiry into certain matters or limiting the scope of disclosure or discovery to certain matters
Rule 26(c)(A) and (D)
115
What are the two types of discovery sanctions?
1. Those authorized under Rule 26(g)(3) and various provisions of Rule 37 for improper certifications or for failure to comply with the discovery rules
2. Those through courts' inherent power. These supplement rather than supplant the courts' sanctioning power under Rule 37
116
What does Rule 26(g)(1) govern?
Discovery certification
117
What does Rule 37(b)(2)(A) set forth?
Possible sanctions for failure to comply with discovery orders, in an attempt to right the wrong, including: an adverse inference instruction; striking the pleadings; staying the action; dismissing the action in whole or in part; entering a default judgment.
118
What is the ESI Safe Harbor rule? Rule?
Rule 37(e) governs sanctions as they relate to preservation of ESI.
119
What is spoliation?
The destruction or alteration of evidence
120
What must a party seeking an adverse inference instruction based on spoliation of ESI establish? (3)
1. obligation to preserve
2. culpable state of mind
3. The destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense
121
How are the relevance and prejudice factors of the adverse inference anlalysis broken down? (3)
1. Whether the evidence is relevant to the lawsuit
2. Whether the evidence would have supported the inference sought
3. Whether the nondestroying party has suffered prejudice from the desctruction of the evidence.
122
What is a document retention policy?
Corporations often have document retention policies which typically refer to types of information such as tax records, board records, employment records, intellectual property records, conracts, etc., and ascribe appropriate retention periods for each.
123
How are retention periods determined for document retention policies?
Generally based upon a mixture of business needs and legal requirements
124
Other than types of documents to be retained and retention periods, what else must a document retention policy contain?
A process of destroying information once its retention period has expired and should provide for the suspension of the destruction process when the need to preserve for anticipated litigation arises.
125
What is the effect, if any, if document retention policies are not suspended in anticipation of litigation?
Failure to suspend routine destruction that occurs pursuant to a document retention policy is not generally regarded as sufficient evidence on its own to establish that spoliatino was done with the intent to deprive another party of the information's use in litigation as required by Rule 37(e)(2).
126
Civil Procedure
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