Term
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Definition
purpose: promote settlement;
streamline trial, narrow issues, establish agenda & reduce likelihood of surprise |
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Term
| purpose & effect of discovery |
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Definition
| promote adjudication on the merits v. "surprise!", judicial economy, basis 4 stipulations, settlements and summary judgements (because not in dispute) |
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Term
| rule 26(a) three stages of discovery |
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Definition
| 1. initial disclosures including the "meet and confer" conference under 26(f). INITIAL DISCLOSURES: |
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Term
| Initial State of Discovery |
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Definition
| 26a(1)(A) identity of each individual likely to have discoverable information that disclosing party MAY use to support its claims or defenses (unless solely for impeachment) |
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Term
Second State of Disclosure
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Definition
26(a)(2) requires disclosure of the identity of all persons who may offer expert testimony thru trial.
* Each expert witness who is retained or specially employed to provide expert testimony at trial
1. detailed report- which contains
2. the opinions to be testified to
3. grounds supporting these opinioins
4. details about the expert's qualifications and experience
within 90 days of trial. |
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Term
| Third Stage of Disclosure |
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Definition
26(a)(3) Shortly before trial-- the evidence (testimony and documentary) that each party MAY use at trial.
At least 30 days before trial. |
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Term
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Definition
26(b)(1) May inquire into all
1. nonprivileged information, that is
2. relevant to the claim or defense of any party
3. for good cause the court may order discovery of any matter relevant to the subject matter involved in the action
4. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. |
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Term
Discovery examples
Financial Status |
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Definition
financial worth- not relevant to subject matter and not discoverable
EXCEPTION
PUNITIVE DAMAGES
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Term
Discovery examples
liability insurance coverage |
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Definition
generally: not admissible at trial because irrelevant and prejudicial- the existence and scope of a liability insurance policy is discoverable in most jx because disclosure can promote settlement
FRCP 26(a)(1)(D)
liability insurance agreements must be automatically disclosed
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Term
discovery examples
privileged matter |
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Definition
1. attorney-client
2. confid comm b/n spouses
3. testimony against spouse
4. privileged against self-incrimination
5. doctor-patient privilege
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Term
Trial Preparation Materials Work Product
seminal case |
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Definition
Hickman v. Taylor
codified in FRCP 26(b)(3)
qualified immunity-
work product protection is not absolute |
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Term
FRCP 26(b)(3) Work Product Protection extends to
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Definition
1. documents or other tangible objects,
2. prepared in anticipation of litigation
3. by or for a party or that party's representative (e.g. insurance agent)
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Term
FRCP 26(b)(3) What must be shown to overcome work product
for ordinary or factual work |
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Definition
1. upon of showing of substantial need of the material, and
2. that he is unable without undue hardship to otain the substantial equivalent fo the material by other means
NOTE:
A PARTY has a right to get her own witness statement and a
NON-PARTY has a right to get his own witness statement without the required showing |
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Term
FRCP 26(b)(3) Work Product How to Overcome Protection
Mental impression |
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Definition
impressions, evaluations, conclusions, opinions, theories and strategies of an attorney or toher rep of a party highest degree of protection
EXTREME NECESSITY MUST BE SHOWN (very rare, because it turns the lawyer into a witness)
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Term
| contrast work product with attorney client privilege |
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Definition
work product immunity protects an attorney's trial preparation materials, not communications between client and attorney
1. benefits the client by allowing full disclosure
2. benefits the attorney by giving privacy prep and deter free-loading
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Term
work product protection
UNDERLYING FACTS AND IDENTITY OF WITNESSES |
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Definition
NOT PROTECTED
even if acquired at great expense and in anticipation of litigation
the underlying facts and identities of witnesses is not protected under the work product rule
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Term
discovery of facts and opinions by experts
testifying expert witnesses |
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Definition
facts and opinions (and reports) of prospective expert trial witnesses even if acquired in preparation of trial are discoverable
if an expert witness was retained or specially employed to provide expert testimony a detailed report must be prepared and disclosed under Rule 26(a)(2) and Rule 26(b)(4)(A) requires that deposition follow the disclosure of the report.
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Term
| non-testifying expert retained or employed specially in anticipation of law suit - discovery rule |
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Definition
only on exceptional circumstances
compare with the work product rule that protects documents and other tangible things but not the underlying facts, FRCP 26(b)(4) protects an experts facts and opinions, whether or not contained in a report acquired in preparation for litigation |
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Term
| Facts and opinions of experts - causally or informally consulted |
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Definition
| casually or informally consulted expert, but not retained or sepcially employed, receives absolute protection, even as to its identity. |
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Term
Facts an opinions of experts
actor or percipient witness |
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Definition
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Term
facts and opinions of experts not retained - protection of intellectual property
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Definition
rule 45(c)(3(B)(ii) allows the court to quash or modify a subpoena to protect the expert or to order appearance if the party requesting it shows substantial need or material cannot otherwise be obtained without undue hardship-- assures expert adequately compensated.
may order production of documents or appeareance. |
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Term
| specific discovery devices |
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Definition
1. oral depositions frcp 30
2. written despositions frcp 31
3. Interrogatories frcp 33
4. requests for admission frcp 36 |
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Term
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Definition
any party or non-party (by subpoena rule 45)
amended to include sanctions upon those who impeded, delay or frustrate the fair examination of a deponent.
corporation - name corp & describe w. reasonable particularity
Documents- bring relevant documents and tangible things in possession.
4 nonparty subpoena duces tecum to bring documents, must be stated with reasonable particularity |
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Term
| use of deposition at trial FRCP 32 evidence cross over |
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Definition
may use deposition (raises hearsay issues if try to admit as evidence at trial)
1. may be used to impeach/contradict
2. of a witness- for any purpose allowed by fed rules of evidence. Theory- let the party who made the admission explain it in court. NOTE: is evidentiary but does not have the effect of a Rule 36 admission- which is to knock the issue out of the case.
may be used as affirmative evidence if the deponent is unavailable: dead, ill, incompetent or beyond subpoena power of the court |
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Term
| written depositions FRCP 31 |
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Definition
| deposing party submits in advance, party deposed orally, under oath and answers are recorded. No possibility for follow-up questions. |
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Term
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Definition
25 may be increased by the court.
any party to any other party
non-parties cannot be served with interogs
may be served any time after commencement of the action by the plaintiff and after the service f summons and complaint by other parties
the answering party is under a DUTY OF REASONABLE INQUIRY to undertake SIMPLE INVESTIGATORY PROCEDURES NOT REQUIRING UNDUE BURDEN OR EXPENSE
Corporate duty is higher-- corporate knowledge- collective |
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Term
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Definition
may produce business records if extensive search required to answer but not in bad faith to shift the burden
FRCP 37(A) evasive answer is failure to answer and may motion to compel
crossover--evidentiary, hearsay issues, not knock the fact admitted out of case, can impeach-be admitted as evidence to impeach |
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Term
| requests for admissions FRCP 36 |
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Definition
at any time during discovery
re statements or opinions of fact or the application of law to fact, including genuineness of docs
conclusively establishes the matter
failure to respond=deemed admitted
may amend, withdraw- upon court discretion when the PRESENTATION ON THE MERITS will be served & other party fails to show withdrawal will prejudice that party in maintaining act or de on the merits
false denial- liable for reimbursement to prove false |
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Term
| requests for production of documents FRCP 34 (& entry into land) |
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Definition
at any time during discovery
for copying and inspecting relevant docs and tangible things
w/ reasonable particularity (time, place and manner)
possession or custody - responding party has duty to use influence to get docs Societe internatiale v Rogers
cannot use on non-party (for take subpoena duces tecum) |
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Term
| physical or medical examinations FRCP 35 |
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Definition
when medical,mental, physical condition is in controversy -> of a party, or a person in custody or under the legal control of the party, upon motion and for good cause the court may order
motion required
employees are not in custody-- children &other persons are... guardianship.. |
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Term
| rule 35 - part 2 mental condition exams |
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Definition
where a party places his own mental or physical condition in controversy
where the moving places the other party's condition in issue the moving party must make evidentiary showing that the responding party may have a condition appropriate to the examination request-- CANNOT GO ON A FISHING
EXPEDITION
can request copies but must also give copies of his own doctor's on same condition and thereby waives evidentiary doctor-patient privilege |
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Term
RULE 35 - PART 3
SCHLAGENHAUF V. HOLDER |
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Definition
| AN EXAMINATION CANNOT BE COMPELLED MERELY TO TEST THE EYESIGHT OR MENTAL OR PHYSICAL CONDITION OF AN EYEWITNESS FOR IMPEACHMENT PURPOSES |
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Term
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Definition
where responding party fails to answer, where an interog is objected, where request for doc is refused
sanctions
1. reclusion order re those facts
2. order refusing to allow to oppose or support designated claims or defenses
3. striking out pleadings, staying proceedings
4. hold in contempt
5. $$$ pay expenses
- dismissal, default judgment, to some extent establishment preclusion order will not be upheld on appeal without showing willful failure to comply (negligence is generally the defense)
rule 11 for filing unmeritorious claim- only attorney not firm |
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Term
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Definition
pretrial order-
1. supersedes the pleadings
2. modified only to prevent manifest injustice
3. matters not admissible in court if introduced and not objected to in a timely manner |
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