Glossary of DISCOVERY-Civ Pro II
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- Discovery Requirements
- Can discover any matter that is the following:
1. Relevant to the claim
2. NOT privileged
- Relevance to the Claim (26b1)v. admissability
- -Must be relevant to any claim or defense of the action. Some matter may be relevant, but inadmissable. This is STILL discoverable so long as it is reasonably calculated TO LEAD to admissable evidence.
- WHAT MATTER IS PRIVILEGED?
- 1. Atty-Client Privilege
2. Counsel's Mental Impressions
3. Work Product Immunity (26b3)
4. Some expert testimony (26b4)
- Atty-Client Privileged communications include..
- 1. Legal Advice Sought from the lawyer acting as lawyer, and the communication is related to that purpose. The communication is made in confidence, (if internal corp communication-still considered one person-satisfies confidence) by the client and absent any waiver of the privilege
- Counsel's Mental Impressions
- Absolute privilege here. Include opinions, legal theories of the case, etc..
- Work Product Immunity Generally
- FR 26b3- maintains qualified immunity, meaning discovery is only allowed if there is a showing of substantial need of the material and an inability to acquire it by other means w/out undue hardship.
- What is the Test to determine if something is considered "Work Product"?
- To be a work Product must be:
1. A document or a tangible thing
2. Prepared in anticipation of litigation or for trial...
3. by or for another party or another party's representation.
- When is a Work Product discoverable?
- upon a showing of:
1. Substantial Need of the materials in preparation of the party's case. Or
2. Undue Hardship-an inability to acquire it by other means w/out such hardship.
3. Lack of any substantial equivalent.
- Circumstances under which courts are likely to permit discovery of WP...
- 1. Contemporaneous statements
2. Unabilability or death of a witness
3. Proven Hostility or reluctance of a witness
4. Inconsistent Statements by a witness
5. Facts that are exclusively in control of discoveree (eg-photos)
- Other Discovery Limitations beyond the 2 general requirements of relevance and non-privileged matter are..
- -Irrelevant matters
-Confidential Matters (if protect order sought-can shield trade secrets
-Too burndensome (expensive, cumulative or can be obtained from an easier source).
- Discovery of Expert Testimony
-what is discoverable from this?
- Parties may discover the identity fo any expert the opposition expects to call at trial and the substance of the facts and opinions to which they are expected to testify.
- If an expert is not set to testify the matter is usually...
- NOT discoverable without a motion demonstrating substantial need.
- Work Product Immunity
(as related to expert testimony)
What can you NOT disclose?
- Cannot disclose material of the expert relating to legal theories of the counsel
- If an expert is NOT retained/hired the matter is...
- Generally opinions are NOT discoverable.
- Test to Determine discovery of Expert Testimony...first ask?
- Will the expert be testifying at trial?
- If the expert is to testify then what rules must apply?
- 26a2A, 26a2C: the side who retained the expert must identify the expert to the other side within 90 days before trial.
26a2B: Expert must prep and sign a report containing his opinion, the basis of those opinions, the underlying datea, his credentials, etc.
26b4A: Expert must submit to a deposition but the deposing side must pay the expert a reasonable fee.
- Expert Testimony (con't)
If the expert is NOT set to testify then you must determine...
- If he was formally retainted by the disclosing side.
If yes, then look to see if he was a physcian. If yes, 35b says this is automatically discoverable. If NO-then opinion and facts known to him are discoverable ONLY IN "exceptional circumstances" (any report may be protected by WPI).
- If the expert was NOT formally retained then...
- there will be no discovery or way to get his opinions.
- MANDATORY DISCLOSURE PROVISIONS
- Are required 14 days after parties meet and confer (26f & 26a1). Mandatory disclosures include: id of witnesses and documents that support the disclosing party's position (Note that this generally includes any insurance K involved).
- Formal Discovery begins...
- After the parties meet as set out in 26f
- Duty imposed with Supplementation of Disclosures?
- There is a duty to a party who has made a disclosure (or responded to a request) to supplement or correct that disclosure to include info acquired after the original disclosure if ordered by a ct OR if they are aware of any incorrect or incomplete disclosures
- What types of sanctions maybe applied by rule 37c1?
- The court can apply:
Note: this can apply to both atty and client.
- METHODS OF DISCOVERY ARE...
- 1. Automatic (mandatory) disclosures
2. Depositions (oral and written)
4. Production of Documents and Entry upon land
5. Physical and Mental Exams
6. Requests for Admission
- All discovery techniques except Automatic Disclosures contain what similar characteristics?
- -they are extrajudicial (operate w/out interference of ct unless refusal to comply)
-Scope for each is relevance and non-privleged info
-Signature of prep lawyer required
-Each of these (minus depos) may only be addressed to the parties.
- Characteristics of ORAL DEPOSITIONS (FR 30)
- -Subpeona for non-parties and w/in 100 miles for deponent's home/business
-Limited to 10 each (unless permission of ct)
-Time limit=1/7 hour day
-Objections: must be concise/nonargumentative
-Can be sanctioned for delaying a depo.
- Characteristics of WRITTEN DEPOS (FR 31)
- -Used mainly for distant non-parties (anyone outside the 100 mile radius)
-Subpoenas for non-parties are nec here too
-Can make cross questions w/in 14 days after the notice and written questions served. 7 days to respond to cross questions.
- INTERROGATORIES (FR 33)
- -Is a set of written ?'s to be answered in WRITING by party
-Done under oath
-objections to ?'s are signed by atty
-limited to 25 ?'s unless ct or parties allow more
-30 days to answer after service.
- PRODUCTION OF DOCUMENTS and ENTRY UPON LAND
- -Any tangible material relevant to the case, w/in the parties control, maybe obtained (ex-photo)
-Entry onto land: gives party the right to inspect, photo or survey the land w/in control of the party.
- PHYSICAL AND MENTAL EXAMS
- FR 35a-b: when a mental or physical condition of a party is in controversy, the court may order the party to submit to an exam
- PHYSICAL AND MENTAL EXAMS
- -Only be court order when opposing party makes a motion and shows good faith.
-Satisfying the Controversy Standard: means it is not enough for the condition to be relevant, it MUST be in controversy (ex-med mal).
- PHYSICAL AND MENTAL
-report of the examiner is...
- considered an exception to Expert testimony, mean this IS DISCOVERABLE. The person examined may request a copy of the exam report, BUT once they've done this, any exam they get thereafter is automatically discoverable.
- REQUESTS FOR ADMISSION (FR 36)
What is the DEF of this?
- -a written request by one party asking the opposing party to admit or certify the authenticity of the material in question in the specific case @ hand.
*Note: there is no limit as to how many you can request.
- What can be REQUESTED FOR ADMISSION?
- -Opinions of fact or the application of law to facts.
-Genuined Documents: can ask to have this confirmed.
- When Served with a REQUEST FOR ADMISSION what can the party do?
- 1. Admit the matter is true (no response is admittance)
2. Deny the truth of the matter, if the party can deny it in good faith
3. State in detail, the reasons why party CANNOT admit or deny
4. Object to the request (30 days).
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