MBE CIVIL PROCEDURE: Discovery

issued to prevent “annoyance, embarrassment, oppression, or undue burden or expense”

Rule 26(c) protective Order

A party can serve a maximum of ____ interrogatories on another party (including all discrete subparts), unless court approves or other party agrees. FRCP 33(a)(1).

25

A party served with interrogatories has ____ days to respond FRCP 33(b)(2)

30 days.

Answer questions in a deposition If a corporate defendant → designate an individual for purposes of deposition Answer an interrogatory Produce documents or permit inspection of documents FRCP 37(a)(3)(B) the class FRCP 23(a)

can compel under rule 37a

Any documents or tangible things prepared in anticipation of litigation or trial by or for another party or its representative. FRCP 26(b)(3)(A)

work product

Are documents prepared in the ordinary course of business considered work product

No.

Are materials developed by non-testifying experts in anticipation of litigation discoverable

No, unless exception

Are objections to questions allowed : Objections are allowed if Although objections will be noted in the transcript, the deponent must answer anyways (unless privileged). FRCP 30

nonargumentative.

Attorney/client Doctor/patient Spousal Priest/penitent Work product Journalist (protection from revealing confidential sources) 5th Amendment protection against self-incrimination

Types of privilege

By when must the Rule 16(b) conference occur Deadline: As soon as is practicable, but within days of D being served, or within days of when D appears, whichever is earlier. FRCP 16(b)(2)

90, 60

Can interrogatories be served on nonparties

No, only on parties.

Conference where the judge issues a scheduling order detailing deadlines for disclosures, filings, and other discovery issues. FRCP 16(a)

Rule 16(b) conference

Deadline unless otherwise ordered by the court: Expert testimony: days before trial. FRCP 26(a)(2)(D)(i)

90

Deadline unless otherwise ordered by the court: If evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), then the deadline is

30

Deadline unless otherwise ordered by the court: If party was served or joined after Rule 26(f) conference, deadline is days after being served or joined. FRCP 26(a)(1)(D)

30

Deadline unless otherwise ordered by the court: Initial disclosures: days after discovery conference. FRCP 26(a)(1)(C)

14

Deadline unless otherwise ordered by the court: Pretrial disclosures:

30

Do insurance agreements need be disclosed regardless of whether the other party asks for them Rule 26(a)(1). of

Yes

How can nonparties be served with requests for production

subpeona

How many depositions are allowed per party : per party unless good cause is shown.

10

How many depositions are allowed per party What is the maximum length of time a deposition can last Each deposition is limited to one day for a maximum of unless otherwise dictated by the court. FRCP 30(a)(2)

7 hours

If a motion to compel is denied, what is the effect : The court may issue a barring discovery of the relevant information. In addition, the moving party may be required to pay attorney’s fees to the other side unless motion was substantially justified. FRCP 37(a)(5)(B)

protective order

If a motion to compel succeeds, what is the result : Other party will be Court may impose sanctions Moving party may be entitled to attorney’s fees FRCP 37(a)(5)

ordered to comply

If materials are: Otherwise discoverable under Rule 26(b)(1); and The party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. FRCP 26(b)(3)(A)

work product discoverable

If the expert does not provide a written report, what must their disclosures contain The on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and Summary of the facts and opinions to which the witness is expected to testify FRCP 26(a)(2)(C)

subject matter

If the expert does not provide a written report, what must their disclosures contain The subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and Summary of the to which the witness is expected to testify FRCP 26(a)(2)(C)

facts and opinions

Information that is: Irrelevant; Privileged; or Work product (unless there is a showing of substantial need or undue hardship) FRCP 26(b)(1)

not discoverable information

Initiates the discovery process. Requires that parties meet “as soon as practicable” to: Discuss claims & defenses; and The possibility for settlement If no settlement is reached, the parties must develop a discovery plan to submit to the court within 14 days of the settlement conference. FRCP 26(f)

Rule 26(f) conference

Is there a safe harbor for Rule 11?

Yes

Is there a safe harbor for Rule 26(g)?

No

Is privilege an absolute bar to disclosure

Yes, absolute bar.

Name and contact information of the expert; Expert’s final report; Expert’s opinion and credentials; List of all other cases in which the expert has testified in (past 4 years only); Data relied on by the expert; and Amount of compensation to be paid for the study FRCP 26(a)(2)

discovery disclosures from experts

Orders a noncompliant party to comply with a discovery request. FRCP 37(a)

Rule 37(a) order to compel

Parties can subpoena corporations, and then the corporation/entity must then designate one or more officers, directors, or managing agents, or other persons to testify on its behalf about information known or reasonably available to the organization. FRCP 30(b)(6)

rules on deposing a corporation

Proceedings held during the course of discovery (before a trial) where a witness is questioned orally by an attorney under oath

depositions

Process for parties to obtain information from each other and third parties.

discovery

requests for admissions - how can a party respond information is true; information is true; why party cannot admit or deny; or to request FRCP 36 stay  proceedings until the order is obeyed,  dismiss the action, or render a  default judgment against the disobedient party Hold the disobedient party in contempt

Admit, deny, explain, object

Requests for documents, tangible evidence and electronic evidence. FRCP 34

requests for production

Requests for parties to admit the truth of certain evidence.

requests for admissions

requests for production - Requests for documents, tangible evidence and electronic evidence. Deadline: must respond within days after the request served. FRCP 34

30

Unless otherwise limited by court order, any information that is: Relevant; Proportional to the needs of the case; and Not privileged FRCP 26(b)(1)

discoverable information

What are the 6 methods of discovery Interrogatories; Request for Admissions; Request for Documents and Tangible Items; Requests for Mental or Physical Examinations; and Depositions

Mandatory disclosures;

What are the 6 methods of discovery Mandatory disclosures; Request for Admissions; Request for Documents and Tangible Items; Requests for Mental or Physical Examinations; and Depositions days before trial. FRCP 26(a)(3)(B)

Interrogatories;

What are the 6 methods of discovery Mandatory disclosures; Interrogatories; Request for Documents and Tangible Items; Requests for Mental or Physical Examinations; and Depositions within days after the other party’s disclosure. FRCP 26(a)(2)(D)(ii)

Request for Admissions;

What are the 6 methods of discovery Mandatory disclosures; Interrogatories; Request for Admissions; Requests for Mental or Physical Examinations; and Depositions

Request for Documents and Tangible Items;

What are the 6 methods of discovery Mandatory disclosures; Interrogatories; Request for Admissions; Request for Documents and Tangible Items; and Depositions

Requests for Mental or Physical Examinations;

What are the 6 methods of discovery Mandatory disclosures; Interrogatories; Request for Admissions; Request for Documents and Tangible Items; Requests for Mental or Physical Examinations; and

Depositions

What are the geographical/travel limitations when deposing a nonparty : Deposition cannot be more than from where the person lives & works.

100 miles

What are the two main categories of discovery and

Mandatory disclosures; Requests for information

What does a Rule 26(c) protective order limit Either: of discovery; Scope of discovery; or Forbids discovery altogether

Timing

What does a Rule 26(c) protective order limit Either: Timing of discovery; of discovery; or Forbids discovery altogether

Scope

What does a Rule 26(c) protective order limit Either: Timing of discovery; Scope of discovery; or

Forbids discovery altogether

What is the deadline to hold a Rule 26(f) conference : At least before scheduling conference is held. Rule 16(b)

21 days

What is the effect of an attorney signing discovery disclosures pursuant to Rule 26(g) : Certifies that the disclosures are: (mandatory disclosures only); Consistent with the rules; Warranted by existing law; Not made for an improper purpose; and Not unreasonably burdensome (Discovery counterpoint to Rule 11)

Complete and correct

What is the effect of an attorney signing discovery disclosures pursuant to Rule 26(g) : Certifies that the disclosures are: Complete and correct (mandatory disclosures only); Warranted by existing law; Not made for an improper purpose; and Not unreasonably burdensome (Discovery counterpoint to Rule 11)

Consistent with the rules;

What is the effect of an attorney signing discovery disclosures pursuant to Rule 26(g) : Certifies that the disclosures are: Complete and correct (mandatory disclosures only); Consistent with the rules; Not made for an improper purpose; and Not unreasonably burdensome (Discovery counterpoint to Rule 11)

Warranted by existing law;

What is the effect of an attorney signing discovery disclosures pursuant to Rule 26(g) : Certifies that the disclosures are: Complete and correct (mandatory disclosures only); Consistent with the rules; Warranted by existing law; Not made for an and Not unreasonably burdensome (Discovery counterpoint to Rule 11)

improper purpose;

What is the effect of an attorney signing discovery disclosures pursuant to Rule 26(g) : Certifies that the disclosures are: Complete and correct (mandatory disclosures only); Consistent with the rules; Warranted by existing law; Not made for an improper purpose; and Not (Discovery counterpoint to Rule 11)

unreasonably burdensome

What is the effect of giving notice of a deposition on parties : Nonparties: Notice doesn’t force a party to appear, a may need to be issued

subpeona

What is the effect of giving notice of a deposition on parties : Parties: Reasonable notice

compels attendance

What is the prerequisite to filing a motion to compel Certification that movant made a to confer with the person resisting discovery to see if judicial intervention can be avoided. FRCP 37(a)(1)

good faith attempt

What is the prerequisite to filing a Rule 26(c) protective order : Moving party must show that she with the other party to resolve the dispute.

conferred or attempted to confer

What is the scope of a deposition : Anything that is even if the evidence itself would not be admissible. ⚠️ Remember that privileged information is almost never in scope

discoverable,

What is the deadline to respond after a request for admission FRCP 36(a)(3)

30 days after receipt of request.

What is the effect if a party does not object or deny a request for admission FRCP 36(a)(3).

Deemed admitted for trial.

What must responses to interrogatories include The response to an interrogatory must: Be in and Include objections with specificity Signed by the person answering (or the attorney making the objections) FRCP 33(b)

writing under oath;

What must responses to interrogatories include The response to an interrogatory must: Be in writing under oath; and Include Signed by the person answering (or the attorney making the objections) FRCP 33(b)

objections with specificity

What pretrial disclosures are required for expert : List of all expert witnesses and any info used to form the basis of their opinions.FRCP 26(a)(2) (Deadline: days before trial, unless ordered otherwise)

90

What pretrial disclosures are required for lay witnesses : Lay: List of all witnesses and documents that will used as exhibits at trial. FRCP 26(a)(3) (Deadline: days before trial, unless ordered otherwise )

30

What sanctions can be imposed if a party fails to comply with a discovery order The court may: Direct that the information at issue must be viewed in the way that the prevailing party asserts, Prohibit the disobedient party from claims that the evidence related to, Strike pleadings,

supporting or opposing

What sanctions can be imposed if a party fails to comply with a discovery order The court may: Direct that the information at issue must be viewed in the way that the prevailing party asserts, Prohibit the disobedient party from supporting or opposing claims that the evidence related to,

Strike pleadings,

What sanctions can be imposed if a party fails to comply with a discovery order The court may: Direct that the information at issue must be viewed in the way that the prevailing party asserts, Prohibit the disobedient party from supporting or opposing claims that the evidence related to, Strike pleadings,

default judgment

What sanctions can be imposed if a party fails to comply with a discovery order The court may: Direct that the information at issue must be viewed in the way that the prevailing party asserts, Prohibit the disobedient party from supporting or opposing claims that the evidence related to, Strike pleadings,

dismiss the action,

What sanctions can be imposed if a party fails to comply with a discovery order The court may: Direct that the information at issue must be viewed in the way that the prevailing party asserts, Prohibit the disobedient party from supporting or opposing claims that the evidence related to, Strike pleadings,

stay  proceedings

What type of work product is almost : Mental impressions, conclusions, opinions, and theories regarding the case. FRCP 26(b)(3)(B)

never discoverable

What types of communications are subject to attorney-client privilege : Communications that: Are between the attorney and client; Were intended to be, and were, in fact, kept and Were made for the purpose of obtaining or providing

confidential, legal advice

When can a party request a mental or physical exam : Only when a person’s mental or physical state is in Requesting party must show and specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it. FRCP 35(a)

controversy, good cause

When is information considered relevant for discovery purposes If it is likely to make any fact in the dispute regardless of whether it is admissible.

more or less likely to be true,

Within of the Rule 26(f) conference, what initial disclosures do parties need to make (whether the parties have asked for them) : Contact info for individuals likely to have discoverable information; Documents that support a party’s claims or defenses; Damages calculation & material upon which the calculation is based; and Insurance agreements that could satisfy all or part of a possible judgment Rule 26(f)(2)

14 days

Within 14 days of the Rule 26(f) conference, what do parties need to make (whether the parties have asked for them) : Contact info for individuals likely to have discoverable information; Documents that support a party’s claims or defenses; Damages calculation & material upon which the calculation is based; and Insurance agreements that could satisfy all or part of a possible judgment Rule 26(f)(2)

initial disclosures

Written questions used for disclosure of routine information. FRCP 33

interrogatorie