Does the evidence requested during discovery have to be admissible at trial?
no
Is discovery liberal?
Yes.
There is favor for handing things over
Think about why this is (why we have a lenient pleading standard and why it makes sense to have very broad discovery standard in our system)
Discovery is ______-driven
party
Required Initial Disclosure
Things that must be handed over whether they ask or not
Deposition
- Learn new info or obtain admissible evidence to use against
- Can depose parties AND NON-PARTIES (must have a subpoena for non-parties)
Interrogatories
- Limited to 25
- Limited to PARTIES ONLY
Document Requests
- No limit
- CAN serve on non-parties
Medical and Physical Examinations
- Rubber Glove Rule
- Only demand of PARTIES
- Need court order
- If the medical condition is in controversy and a good cause for the exam – good cause is limited if this evidence could be obtained in an other way
- Much tougher to get examinations because they are an invasion
Med & Phys Examinations are _____-driven
court
Discovery Served on Parties vs Non-Parties
Parties
- Deposition
- Interrogatories
- Document requests
- Medical and physical examination (court ordered)
Non-Parties
- Deposition (w/ subpoena)
- Document requests
Request for Admission
Rule 36
- Ask other party to admit or deny something or EXPLAIN WHY it cannot admit or deny
- If do not respond = deemed admitted
Experts
Two Types
- Experts retained for testifying in trial (diva)
- Must issue report about opinion
- Must disclose! - Experts retained in anticipation of trial (consulting)
- Discovery limited
- Only can get that if it is IMPRACTICAL for the other party to obtain the facts on their own (extraordinary circumstances)
Limits on Discovery
Rule 26(b)(2)(C)
- Discovery cannot be sought when it means to annoy, harass, or be expensive
Privilege (Two Types)
- Attorney-client
- Confidential communication between attorney and client regarding legal advice
- In our class –> this is ABSOLUTE PROTECTION for attorney-client privilege - Work Product
Rule 26(b)(3)
- Attached to info gathering to party’s agents in anticipation of litigation
i) Fact-work product - can get with substantial need and inability to achieve without undue hardship (Hickman v. Taylor – Example: witness statement where witness is dead or move away to different jurisdiction)ii) Opinion work product - mental impressions of attorney regarding litigation (for us ABSOLUTE PROTECTION)
In regard to privilege, underlying fact are/are not protected?
NOT PROTECTED
