Mata v. Avianca, Inc.
Facts: Mata is initially represented by Schwartz, later LoDuca. The attorneys’ firm generates fake cases with fake citations. This is discovered when Avianca’s attorneys cannot find the cases that LoDuca presents, yet LoDuca doubles down. The court finds that these are fake cases.
Rule: All documents signed off by attorneys in a case will be subject to Rule 11 sanctions if found that the attorney acted in bad faith.
United Oil Co. v. Parts Associates, Inc.
Facts: United Oil sought indemnity for their settlement payments to Tiede. United Oil alleged that the liver disease Tiede had contracted was through the chemical exposures from Parts Associates (distributor), and manufactured by Rohm & Haas (manufacturer of dyes). United Oil filed motions to compel discovery on prior claims, lawsuits, and chemical-related documents.
Rule: Material must be relevant to the claims to be subject to compelled discovery.
Zubulake v. UBS Warburg LLC
Facts: Zubulake sues Warburg, her place of employment, for gender discrimination, failure to promote, and retaliation under federal, state, and city law. The court orders Warburg to restore and produce emails from a specific backup tape, but Zubulake moved to order for compel Warburg to produce all of its backup tapes.
Rule: Cost-shifting in discovery may force plaintiff to pay a portion of generative costs if the contents of the requested discovery are too speculative.
Hickman v. Taylor
Facts: A tugboat accident kills five people. Hickman, the estate of one of the decedents, brings a suit against Taylor, the owner of the tugboat. Fortenbaugh, one of the hired attorneys for Taylor, interviewed four survivors. Hickman tries to get the information from these interviews from discovery, to which Taylor refuses, citing it as a work product (protected from discovery, generated in anticipation of litigation).
Rule: Work products are not subject to discovery unless absolutely necessary to the case of the other party, in which case they must file a subpoena or court order.
Scope of Discovery
26b
Required Initial Disclosures
26a1
Failure to Meet Requirements of Disclosure
Rule 37a
Depositions
[30a1]
Any party or non party can be orally deposed. A nonparty’s attendance may be compelled by subpoena under Rule 45. A party can be deposed anywhere.
Max 10 Depositions per party [30a2]
Limited to 7 hours [30d1]
Failure to Attend Deposition
[37d]
Compel Discovery Response [37b]
Compel Court Order Compliance [37b]
Interrogatories
list of written questions one party sends to another as part of the discovery process
33b2 The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
33b4 Objections must be stated in a timely manner.
33b5 The person who makes the answers must sign them, and the attorney who objects must sign any objections.
Business Records [33d]
Production of Documents, ESI, Tangible Things
Rule 34b
Nonparties 34c
Failure to Meet Requirements of Rule 34
[37e] Failure to preserve ESI
[37d] Failure to Respond to a Request for Inspection
[37a] Compel Discovery Response
[37b] Court may make 37a motion to discover, or take further action [37b2]
Physical and Mental [Medical Examinations]
[35a1] ONLY BY COURT ORDER
[35a2] Motion and Notice, Contents of Order
Work Product
Hickman: Work Product can be claimed for Interrogatories
26(b)(3): Work Product can be claimed for Rule 34 Requests
General Scope
[26g1B]
Discovery request, response, or objection must be certified by attorney or party that information and belief formed after a reasonable inquiry that discovery request, response, or objection it is:
- Consistent with rules and warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law, or for establishing new law
- Not for any improper purpose: like to harass, cause unnecessary delay, or to increase cost of litigation
- Not unreasonable nor unduly burdensome or expensive, considering needs of the case, prior discovery in case, amount in controversy and the importance of the issues at stake in the action
FR of Evidence on Relevance
Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
United Oil: Whether expressly or impliedly, a requesting party needs to only make a rudimentary showing of relevance by articulating a cogent nexus between a claim or defense and the piece of information sought–a request that appears relevant on its face.
After this showing has been made, the resisting party must clarify and explain why its objections to discovery are proper.
The substantive law of the claim will also help in determining relevance.
Privileged Communications
Attorney/client, doctor/patient, spouses, priest/parishioner
MAY INCLUDE WORK PRODUCT
Proportionality Factors [Factors court should take into account when determining whether the discovery requested is proportional to the needs of the case]
- Issues at stake in the action
- Amount in controversy
- Parties’ relative access to relevant information
- Parties’ resources
- Importance of discovery in resolving issues
- Whether burden or expense of proposed discovery outweighs its likely benefit
- No one factor is a determinative factor. They all must be weighed together.
- Information need not be admissible in evidence to be discoverable.
Cost Shifting Protective Order
[26c1b]
permits the court to shift costs (or part of them) to the party seeking discovery
(Zubulake v. UBS Warburg)
Electronically Stored Information [ESI]
LITIGATION HOLD: Common law duty to preserve information that may be relevant to litigation
A company’s document retention policy impacts the litigation hold. Attorneys must inform their client of the possibility of a litigation hold.
ESI LIMITATION: Need not provide ESI that is not reasonably accessible because of undue burden or costs, must be shown by the resisting party.
If there is good cause then it could be discovered.
IF NOT PRODUCED, BUT WAS NECESSARY, IS ASSUMED TO BE DETRIMENTAL TO PARTY REQUIRED TO PRODUCE
Timing and Sequence of Discovery
26d1
Party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)
Early Rule 34 Requests:
26d2
Sequence
26d3
