Discovery

Question 1

discovery in CC vs GDC

Answer 1

discovery in GDC is virtually non-existent, except for subpoena, which is used only to require witnesses to appear at trial or obtain documents for trial.

Question 2

scope of discovery: relevance

Answer 2

a party can obtain discovery on any matter that is relevant to the subject matter involved.
the information sought need not be admissible at trial, provided the discovery request appears reasonably calculated to lead to admissible evidence.

Question 3

limitations on discovery

Answer 3

1. privilege
2. work product, and
3. abuse

Question 4

limitations - privilege

Answer 4

a party may not obtain discovery into any matter that is privileges.

common privileges:
- attorney client privilege
- marital privilege
- physician patient privilege

Question 5

limitations - work product

Answer 5

documents or other tangible objects prepared by an attorney in anticipation of litigation are protected from discovery.

however, the party seeking discovery can overcome this protection if the party has a substantial need for the information and cannot otherwise obtain it without substantial hardship

Question 6

work product: prior statements

Answer 6

a written or recorded statement by a person cannot be withheld from the person who made the statement, even if it might otherwise be considered work product.

Question 7

work product: experts

Answer 7

a party might inquire into the identity of any expert witness his opponent expects to call, as well as the witness’s opinion and reasoning - this inquiry may be made through written discovery requests or through a deposition.

Question 8

experts - not slated to testify

Answer 8

where an expert is not slated to testify at trial, discovery may not be had unless exceptional circumstances exist making it impracticable for the party to get information by other means.

under those circumstances, the court can order the party who hired the expert to make the facts or opinions known to the expert available. this could be the case in litigation involving a very new or unusual subjects, in which there are a limited number of experts or publications.

Question 9

limitations - abuse

Answer 9

the court may limit discovery that would otherwise by permissible if:

• the discovery sought is cumulative or duplicative, or obtainable from a less burdensome source;
• the party seeking discovery has already had ample opportunity to obtain the information sought; or
• the discovery is unduly burdensome, considering the amount in controversy, the parties’ resources, and the importance of the information and the case overall.`

Question 10

protective orders

Answer 10

where a party wishes to avoid or limit discovery, he may seek a protective order.

Question 11

protective orders - when discovery is unjustified

Answer 11

when discovery is unjustified because it is irrelevant or exceeds the limitations, the court will order the party seeking discovery to cease its demand.

Question 12

protective orders - when discovery is justified

Answer 12

if it is, but will result in annoyance, embarrassment, or oppression of a party, the court can “protect” that party by ordering that discovery only be had in a certain way or at certain times.
- courts will often issue this type of protective order in cases that involve proprietary information or sensitive personal details.

Question 13

discovery - updating responses

Answer 13

parties have a duty to update discovery responses if the response is incorrect or incomplete.

Question 14

discovery - signature

Answer 14

• every discovery request, response, or rejection must be signed by a party’s attorney, or pro-se parties

-the signature certifies to the court that the request, response, or rejection is justified by the law and facts relevant to the case, and is made in good faith

-where a signature is missing, the document will be stricken unless it is signed upon being brought to the attention of the party making the request

Question 15

methods of discovery

Answer 15

• depositions
• interrogatories
• requests for admission

Question 16

depositions - when

Answer 16

depos may be taken at any time after the commencement of the action.

-plaintiffis may not take a deposition before the D has filed a responsive pleadigs unless the defendant has already notice a deposition of his own.

Question 17

depositions - notice

Answer 17

reasonable notice in a writing of a party’s intention to take a deposition must be given to all other parties, identifying the person to be deposed and the place where the deposition will be conducted.

Question 18

depositions - how

Answer 18

depositions must be taken under oath and before a person authorized to administer oaths.

• when deposing a party, the party conducting the deposition must give notice of the deposition to the deponent as well as all parties.
• when deposing a non-party, the party conducting the deposition must cause the court to issue a subpoena.

Question 19

depositions - objections

Answer 19

objections made in depositions are recorded and preserved for later evaluation by the court.

Question 20

depositions use in judicial proceedings

Answer 20

to the extent admissible by the rules of evidence, depositions may be used at a hearing or trial if the opposing party was present or had the opportunity to be present at the depositions

Question 21

depositions of parties in a judicial proceeding

Answer 21

can be used if the court finds:

• that the witness is dead;
• the witness is more than 100 miles from the place of hearing or trial;
• the witness cannot attend or testify becasue of age, illness, infirmity, or imprisonment; or
• the party offering the testimony could not procure the witness’s attendance by subpoena

Question 22

depositions of non-parties at judicial proceedings

Answer 22

can only be offered where the court is unable to procure the attendance of the witness at trial (for example if the witness has died, fled, or cant be found).

Question 23

use of depositions in supporting summary judgment

Answer 23

VA does NOT allow a party moving for SJ to support the motion using deposition testimony UNLESS all parties agree that such deposition may be used.

**a party OPPOSING sj however may rely on such testimony

-responses to requests for admissions submitted in support of a motion for SJ may be based upon any discovery depositions and may include admitted facts learned or referenced in such deposition, provided that such request for admission shall not reference the deposition or require the party to admit that the deponent gave specific testimony.

Question 24

interrogatories

Answer 24

*interrogatories may ONLY be served on parties

• a party can serve a total of 30 on the opposing party - including all parts and subparts

Question 25

interrogatories - response

Answer 25

party served must respond WITHIN 21 DAYS - if interrogatory asks for info outside scope of discovery, the party served may object to the request. -if interrogatory asks for info contained in business records, the party served may respond by specifying the business records (whether physical or electronic), and where the info may be found.

Question 26

interrogatories - requests for documents, entry upon land, or inspection of tangible items

Answer 26

any party may ask another party to produce documents, electronic information, or other objects for inspection or copying, or may request entry upon land. *party served must respond within 21 DAYS, or may object if the request exceeds the scope of discovery. *this must be produced as they are kept in the normal course of business, or labeled and organized to correspond with the requests made. - non-parties: the rules above only apply to parties. NON-PARTIES need to be served subpoena duces tecum.

Question 27

interrogatories - physical & mental examinations

Answer 27

only when a party's condition is in controversy, a physical or mental examination of the person may be requested. advance court approval is required, and the court requires a showing of good cause for the examination.

Question 28

interrogatories - requests for admission

Answer 28

a party may ask another party to admit the truth of some discoverable matter. - must be for the pending action only. *a matter that is ADMITTED need not be proven at trial. (it is conclusively established) *a party served must respond WITHIN 21 DAYS, or else the assertion will be DEEMED ADMITTED.

Question 29

discovery - sanctions: grounds

Answer 29

if a party fails to respond to a discovery request, the party making the request may file a motion to compel. -the motion must certify that the movant conferred or attempted to confer in good faith with the party refusing the request.

Question 30

discovery - sanctions: expenses upon grant or denial of motion to compel

Answer 30

if the court grants the motion, the movant is entitled to the expenses associated with making the motion SUCCESSFUL = OBTAIN ATTY FEES if the court denies the motion, the non-movant will be entitled to the expenses of opposing the motion if the motion was not substantially justified. UNSUCCESSFUL = PAY OUT ATTY FEES

Question 31

discovery - sanctions: disobedience of an order

Answer 31

if the court compels the non-movant to submit to discovery, and the non-movant persists in refusing, the court may hold the non-movant in contempt, bar the non-movant from presenting certain evidence, or order that the info withheld is established in favor of the movant.