Discovery

Question 1

What falls under discovery?

Answer 1

• Depositions
• Document Production
• Interrogatories
• Requests for admission
• Physical exams

Question 2

Rule 26 [omnibus motion rule]

Answer 2

• Defines scope, any information relevant to any party’s claim or defense
• 26(g) requires the attorney to sign each discovery document
• Imposes equivalent rule 11 sanctions, specifically for discovery

Question 3

Rule 33 on Interrogatories

Answer 3

• No more than 25
• Must relate to matters in scope of discovery
• Must be answered
• Responses and objections must be SERVED (not filed) within 30 days

Question 4

Common discovery objections

Answer 4

• Irrelevance under 26(b)(1), not relevant to any claim or defense
• Not proportional
• Overly burdensome
• Attorney-client privilege
• Material requested is cumulative or available elsewhere. 26(b)(2)(C)(i)
• Already had opportunity for discovery. 26(b)(2)(C)(ii)

Question 5

Attorney-Client Privilege (evidentiary rule)

Answer 5

• A communication;
  A) Made between privileged persons;
  B) In confidence
  C) For purpose of obtaining or providing legal assistance for the client
• Protecting communication b/w attorney and client related to legal representation
• Privilege belongs to client, not attorney
• Absolute unless waived

Does not apply to public places where things could be overheard

Question 6

Rationale for attorney-client privilege

Answer 6

• Attorney should know everything about client
• Client should trust attorney
• Client should have incentive to be honest w/ lawyer
• Established whenever legal discussion/advice is given, including initial consultations before hiring attorney

Question 7

Rule 26(b)(3) Work Product

Answer 7

• Material prepared in anticipation of litigation by party or its representatives are not subject to discover
• Rationale:
  a) parties must thoroughly prepare for a case
  b) should not skew notes out of fear of disclosure
  c) opposing party has other discovery means

EXCEPTION; Disclosable if:
- Party seeking has “substantial need” AND
- Cannot obtain info by other means
- Mental impressions, conclusions, opinions, or theories are never disclosed

Question 8

Expert Testimony

Answer 8

• Experts explain scientific, technical, and statistical data
• Give merit to claims of client
• Intimidate other side, experts are expensive

Question 9

Motions to Compel, Rule 37(a)

Answer 9

• Must be accompanied by certification of parties’ meeting’

Reasoning:
- Effective way to resolve disputes
- Reduces burden on courts

• 26(g)(1) signature required

Question 10

Sanctions for failure to obey court order, Rule 37(b)

Answer 10

• By failing to cooperate you generate an expense (motion to compel) and must reimburse opponent
• Court can strike portions of pleadings, exclude evidence, decide issues against bad faith party
• Adverse inference instruction
• Dismiss complaint or declare default judgment

Question 11

Attorney’s duty of preservation

Answer 11

• Once you can anticipate litigation, instruct clients to place litigation hold
• Oversee compliance
• Communicate with key players directly
• Instruct employees to produce electronic copies of relevant files
• Backup media to be identified and stored securely

Question 12

Discovery

Answer 12

• Learning or discovering facts related to lawsuit
• Motions for summary judgment are based on facts found in discovery

MTD/Answer Stage –> DISCOVERY –> Verdict