Glossary of Discovery
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- Automatic Disclosure
- Initial (core Info.)
Experts, identity, detailed report.
Pre-Trial (anything relevant)
- Scope of Discovery
- All non-privileged info. that is relevant and reasonably calculated to lead to the discover of admissible evidence.
- Scope of Discovery/ Work Product
Prepared in anticipation of litigation.
- Qualified privilege protected in so far there is no "substantial need" and inability to obtain info. by other means.
Mental Impressions, absolute protection
- Work Product Elements
- 1) Documents or other tangibles i.e., notes, reports.
2) prepared in anticipation of litigation
3) by or for a party or party's representative.
- Expert Information
- Testifying experts- no protection
Non-testifying expert - Party must discover via a motion and show "exceptional circumstances"
casual or informal consultant- absolute protection even to identity.
- Non-Party deposition
Party - Interrogatories
request to produce
Physical and Mental Exam
Request for Admission
- Medical Exam
- Upon motion and good cause, court may order mental or physical exam.
Condition must be in "controversy"
Good Cause - cannot obtain necessary info from other sources.
- Subjects of Medical Exam
- Parties or persons in custod or under legal control of a party, no employees.
- Sanctions/ Violation of Process
- Motion of compel- refusal - contempt.
Sanctions for failure to disclose- check failure was harmless.
- What is Discovery?
- Discovery may inquire into all non-privileged information that is relevant to the claim or defense of any party which is reasonably calculated to lead to the discover of admissible evidence even though such evidence may not be admissible at trial.
- What is an Interrogatory?
- Interrogatories are discovery devices in the form of written questions submitted to a party of a lawsuit requiring written responses based on information and belief.
- Expert Testimony - What was the rule prior to the December 1993 Amendment?
- Under Rule 26 (b)(4) as it existed prior to December 1993 amendments of the Federal rules, if experts are retained for a non-litigation purpose, any reports developed for this non-litigating purpose would receive no protection from discovery. However, if experts are retained in anticipation of litigation or for trial, any facts and opinions acquired by these appraisers for litigation purposes would receive qualified immunity from discovery.
- Expert Testimony - What is the rule Post - December 1993 amendment?
- Rule 26(a) now requires all parties to automatically disclose al persons who may offer expert testimony on their behalf at trial without waiting for any discovery demand. Disclosure must also include detailed reports by any expert witnesses retained or specifically employed by any party to provide testimony at trial or whose duties as that party’s employee regularly involves giving expert testimony. Rule 26(b)(4) now no longer gives any protection to the facts and opinions of expert witnesses even if acquired or developed in anticipation of litigation.
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