Discovery - Scope

Question 1

What is required pre-claim/pre-defense?

Answer 1

Informal fact-finding

Question 2

What is the standard for discovery scope? What rule?

Answer 2

Relevant
Proportional

R.26

Question 3

Considerations of proportionality

Answer 3

1. Importance of issues at stake
2. Amount in controversy
3. Parties’ relative access
4. Parties’ resources
5. Importance of discovery in resolving issues
6. Whether burden or expense of discovery outweighs benefits

Question 4

What are the five major objections to discovery?

Answer 4

1. Privilege matter
2. Work product
3. Unreasonably cumulative or duplicative
4. Had ample opportunity to obtain information by discovery in action
5. Outside of scope (not relevant or not proportional)

Question 5

Elements of Attorney-Client Privilege

Answer 5

1. A communication
2. Made between privileged persons
3. In confidence
4. For the purpose of obtaining or providing legal assistance

Question 6

What must to be done to prevent waiver of privilege?

Answer 6

Assert privilege

Question 7

How do you assert privilege?

Answer 7

1. Expressly make claim

2. Describe nature of documents

Question 8

What is your option if you accidentally produce privileged information?

Answer 8

Assert demand that other party return, sequester, or destroy material

Question 9

What is the origin of Work Product Doctrine?

Answer 9

Created by Hickman v. Taylor (1947 USSC case)

Question 10

What does the Work Product Doctrine protect?

Answer 10

Information prepared in anticipation of litigation

Question 11

What approach does the Work Product Doctrine use to determine preparation in anticipation of litigation?

Answer 11

Primary purpose approach

Question 12

What does Work Product Doctrine not protect?

Answer 12

1. Pure facts
2. Identify of individuals
3. Witness statements

Question 13

What kind of privilege does work product have?

Answer 13

Not absolute privilege

Question 14

What do you need to assert objection to work product privilege?

Answer 14

1. Necessity

2. Undue hardship

Question 15

Types of Work Product

Answer 15

1. Ordinary work product (qualified work product)

2. Opinion work product (absolute work product)

Question 16

Ordinary (qualified) work product

Answer 16

Consists of tangible material or its tangible equivalent in unwritten or oral form, other than underlying facts

Question 17

When is ordinary (qualified) work product discoverable?

Answer 17

On basis of necessity and undue hardship

Question 18

Opinion (absolute) work product

Answer 18

Includes legal theories, opinions, conclusions, etc.

Question 19

When is opinion (absolute) work product discoverable?

Answer 19

Rarely, only on basis of extraordinary needs

Question 20

When is expert work product permitted to be discovered?

Answer 20

Discovery of testifying expert

Question 21

When is expert work product not permitted to be discovered?

Answer 21

Discovery of non-testifying expert

Question 22

What is the exception for expert work product of a non-testifying expert (to be discoverable)?

Answer 22

Exceptional circumstances = must show impractical for discovering party to obtain facts and opinion

Question 23

What is the typical sequence of discovery?

Answer 23

1. Informal fact-finding
2. Filing
3. Service
4. Meet and confer
5. Required disclosures
6. Proposed plan
7. Scheduling order and conference
8. Initial disclosures

Question 24

What time is meet and confer required?

Answer 24

As soon as possible, no later than 21 days before scheduling conference

Question 25

Can meet and confer be by phone?

Answer 25

Yes, but not by email

Question 26

What is discussed in the meet and confer?

Answer 26

1. nature of claims and defenses 2. possibility of settlement 3. making/arrange required disclosures 4. objections to required disclosures 5. preserving discoverable information 6. electronic discovery 7. discovery plan

Question 27

When must discovery plan be submitted?

Answer 27

Within 14 days of meet and confer

Question 28

When does court enter scheduling order?

Answer 28

1. within 60 days of D's appearance or | 2. 90 days after complaint