Discovery

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School

University of Hawaii *

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Course

516

Subject

Political Science

Date

Oct 30, 2023

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docx

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Uploaded by JudgeProtonLlama46

Discovery  Getting documents, including electronic docs, from the other party  Pretty liberal overall; we want to avoid ambushing at trial  26(g) is certification requirement, similar to requirement that lawyer sign a pleading under rule 11 o Certifying that they are complete and not for an improper purpose Required Disclosures Rule 26(a)  Must disclose certain information even if other party doesn’t ask (a)(1) Initial disclosure: very early in the case  14 days before rule 26(f) conference  Must ID people with discoverable info that you may use to support your case  Must give copies or descriptions that you may use to support your case  ONLY if you are going to use it to SUPPORT your case; do NOT need to disclose something here that will hurt your case  P must give a calculation of damages  D must disclose insurance (a)(2) Expert testimony disclosures  Later in the litigation (a)(3) Pretrial required disclosures  Close to trial  Basically, what you are going to raise at trial Discovery Tools (5 of them): big question: can you use each to get info from non-parties  Deposition: testifying live under oath, happens in a lawyer’s office o Answering questions from parties o Rule 30 : orally asking questions o Rule 31: questions read by court reporter  Can depose a party or a non-party  Need to subpoena non-party, or they don’t have to show up  Do not need to subpoena a party  All deponents will need to get a notice of deposition

 Interrogatories: write questions answered in writing under oath o 30 days to answer them o ONLY can be sent to parties o CANNOT use for non-parties  Request to Produce: Rule 34 o Written request for access to things (documents, ESI, tangible things) o Rule 34(c): may use with non-parties, but you will need to subpoena them o Parties, do not need to subpoena  Medical Exam Rule 35 o MUST get a court order o Pretty hard to get b/c it could be used to harass someone o Medical condition must be in controversy and must show good cause o Can only get for a party or someone in the party’s custody or legal control o Very narrow, does not include employer/employee relationship o Ex: parent/child, medical exam of a child injured in medical malpractice  Request for admission Rule 36 o Asks to admit or deny any discoverable matter o “Admit or deny that you were drinking before your drove” o ONLY available to send to parties Scope of Discovery:  Standard 26(b)(1): we can discover material that is relevant to a claim or defense and proportional to the needs of the case o Ex: not proportional if the burden of producing it will outweigh the value of the evidence o Discretion of the court o Relevant: does not need to be admissible as long as it may lead to discoverable material  Ex: Hearsay is discoverable even if its not admissible  Can ask “What did the witness tell you?”  Privileged matter is not discoverable even if it is relevant  Attorney/Client Privilege : confidential communication between a lawyer and client o Party will object saying it’s privilege

 Work Product: 26(b)(3) “trial preparation materials” o If it is prepared in anticipation of litigation o Not discoverable no matter how relevant/useful o Object and say it is protected work product o Can be overridden with  1: substantial need  2: the information is not otherwise easily available o Some are absolutely protected  Mental impression, conclusions, opinions, and legal theories o Can be generated by the party or any representative of the party  Does not need to be the lawyer  Could be a private investigator Enforcement of the Discovery Rules  Court will likely require you to work it out with the other party before they will step in  Will have to certify that you have already tried to work it out  Responding party asks for a protective order 26(c) o Asking court to protect you become the discovery request subjects you to undue burden, etc o Court has a lot of discretion o Court could limit discovery  Ex: Trade secrets; could limit it to use in the case; can’t be used in the market place  Responding party responds incompletely o Party seeking discovery thinks the reasons/objections are bogus o Make a motion to compel: make the party answer the questions o If still don’ answer, sanctionds under 37(b)(2)  Responding party fails completely o Didn’t respond, didn’t show up for a deposition o Do NOT need a motion to compel o Go directly to a motion for sanctions under 37(d)(1)(a), list of sanctions under 37(d)(3) o Very serious: merit sanction – doesn’t allow the party to put on evidence Conference and Judicial Management  Rule 16(b): court must enter a scheduling order

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o Roadmap for how the litigation will proceed over the next months on the road to trial  Scheduling conference (optional)  Before the scheduling order is entered, parties have a lot to do under 26(f) o Problems with discovery o Settlement options o Discovery plan o Produce required disclosures under 26(a)(1) at least 14 days before 26(f) meeting (which must come before 16(b) scheduling order  Court can also order conference to monitor things o Pretrial conferences o Can order whenever they want  Usually, will be a final pretrial conference o After discovery o Discuss what issues will be tried at trial o Issue a pretrial conference order (very important) o Roadmap of what will happen at trial o Every witness, contention, evidence o If it’s not listed, you can’t put it on at trail (unless you get the judge to amend it, which is hard to do) o This supersedes the pleadings