Discovery - Civil Procedure Attack Flow Chart

The Discovery Directory Early Discove overy Basic Party Tools for requesting information Rule 30-Depositions (Live) Can be used to obtain information from non-parties. Rule 31 (Written Deps) Requires a Rule 45 subpoena for non-parties. Rule 33-Interrogatories Can only be sent to parties, not to non-parties 30 days to respond, Rule 36-Req. for Admission (Only to parties) -Require party to admit or deny specific factual statements. 30 days to respond. Rule 34-Req. to Produce Documents, electonically stored information, and tangible things. -CAN be used against non-parties Per 34(c), requires a Rule 45 subpoena Rule 35 - Medical Exam -Requires court order. Disovering party MUST demonstrate that the condition to be examined (mental or physical) is relevant to the caes and that there is "good cause Only if a person is in the "custody or legal control of the party (or is party themselves) can they be subject to RI. 35 Scope-What is Discoverable? Rule 26(b)(1) -Any non-privileged information Burden is on person claiming privilege to prove it. Need not be admissible evidence, so long as "reasonably calculated to lead to the discovery of admissible evidence"-> therefore hearsay permitted. Rule 24(b)(4)-Work Product Provision Any material made by a representative (including private investigators) preparing for a trial MAY be protected so long as plaintiff cannot meet: (1) substantial need for the information; AND (2) they cannot without undue hardship get the equivalent of the information. -Even if plaintiff meets this burden, certain types of info are never discoverable (opinions, theories, conclusions, and legal theories) Chart is weak, but not too much class time on discovery: REMEMBER: Parties are supposed to work discovery disputes out beyond themselves Remember: A company cannot get around discovery by saying it is too cumbersome or expensive on account of their own poor record keeping system. Permitting this would allow chronic defendants to escape discovery merely by making their data painfully inaccessible. Mandatory Disclosures Rule 26(a)(1)-Mandatory Initial Disclosures Each party must identify persons who have discoverable information that she may use to support his/her contentions on the merits; AND -Must describe or produce documents, ESI, and things that constitute discoverable material that she may use to support her contentions. -P must provide a calculation of damages must identify any insurance she has which may cover all or part of the claim DUE win 14 days of initial pre-trial conference Late Disc Rule 26(a)(2)-M.D. of Expert Witnesses Usually towards end of discovery. Requires identification and information from expert witnessess the party will use at trial. Rule 26(a)(3) Pre-Trial Disclosures Post-Disc: Pre-Trial Each paty must disclose every contention it will raise at trial (witnesses and evidence) in a memo which is filed w/ court Enforcement of Provisions Rule 26(c)-Protective Order Court can order this to prevent, limit, or keep secret files requested in discovery at the Responding Party's request. Failure to Respond Outright Rule 37(d)(3)-Sanctions for Outright Refusal to Respond or show to Deposition -All 37(b)(2)(A) Sanctions minus contempt: HOWEVER, court much more likely to enforce a default judgment here due to the severity of the transgression Rule 37(a)(1) Motion to Compel Inadequate or Disingenuous Response -if discovering party feels the responding party has disingenously answered questions, it can file this motion. If judge finds the discovery was refused in bad faith, sanctions -Sanctions: Must answer the questions to judge's satisfaction & pay the attomey's fees the other side incurred getting the information It RP still refuses to produce 37(b)(2)(A) Sanctions -Refused facts decided in other party's favor, OR -Prohibit any challenge or defense to this matter at trial; OR Contempt of Court, OR -Default judgment; OR Dismissal of complaint: OR -Staying proceedings, OR Striking a pleading