Assignment 7 – Discovery: Introduction and Methods
Discovery is the process used by parties to a lawsuit to obtain and preserve information about the case from the opposing parties and others with knowledge of pertinent facts.
Purposes of Discovery
– 1. Allows a party to gather information which will lead to evidence which is admissible at trial, with which the party can prove its case or prepare to meet the opposing party’s evidence
– 2. Allows for the preservation of certain evidence when there is a possibility that it may no longer be available at trial, for example, if a witness might die before trial
– 3. It can help narrow the issues in dispute. Once the facts are known it might be that an issue that appeared in dispute from the pleadings, but for which there was evidence supporting only one side. This narrowing of the issues can be beneficial in a number of ways. It can help the parties settle the case, it can reduce issues to be decided at trial, and it may allow, in some cases, for dismissal of the lawsuit before trial
Scope of Discovery (very broad)
– Rule 26(b)(1) is the key rule
o Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense – including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause the court may order discovery for any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to limitations in Rule 26(b)(2)(C).
– Rule 26(f) Conference of the Parties; Planning for Discovery
o (1) Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable – and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).
– Rule 16(b) Scheduling
– Rule 26(a)(1) Initial Disclosure
o Requires that fairly early in the lawsuit, each party must provide the names of witnesses and a copy of documents which they “may use to support its claims or defenses.”
o Parties must also supply any insurance agreement which might be used to reimburse payments made to satisfy any potential judgment. This information is not truly relevant to the claims and defenses in the lawsuit, but knowledge of how much insurance is available to pay a judgment might facilitate a settlement.
o A judge may exempt an individual case from the requirements of Rule 26(a)(1)(A) and there are also 8 kings or cases that are specifically exempted by Rule 26(a)(1)(B)
– Rule 26(a)(2)
o Requires that no later than 90 days before trial, parties must disclose the identity of any expert witnesses they intend to call along with a report describing their testimony.
– Rule 26(a)(3)
o Requires that no later than 30 days before trial that the parties identify all witnesses they intend to call and documents they intend to offer into evidence.
– Discovery may be used not only to support his own case, but also to impeach evidence or witnesses presented by an opponent.
o To show the witnesses should not be relied on because they are inaccurate or untruthful.
– Non parties may need to be compelled to cooperate by the court, through a subpoena or other order.
– Basic discovery devices are: depositions (oral and written), interrogatories, requests for documents, admissions and requests for mental or physical examinations.
– Rule 30 Oral Depositions
o Most depositions are oral
o Consist of the questioning of the deponent, who can be any person, whether a party or not, under oath, by the lawyers for all parties.
o The party that requests deposition is the first to question the deponent, then all other parties may follow up with cross examination.
o Objections can be made, just like at trial, but they are usually not
troversy.”
§ Due to the personally intrusive nature of an exam
o The party examined may request, and is entitled to receive, a written report of the examiner’s findings.
§ However, if the request is made, it must hand over all “like reports of all earlier or later exams of the same condition.”
§ In addition, by requesting the report, the party examined waives any privilege he might have regarding any testimony about the same condition
· Meaning his doctor/patient privilege is waived.
– Limitations on Discovery
o Parties may take up to 10 depositions of no more than one day each and may submit up to 25 interrogatories without special permission.
§ A party may exceed these limitations with leave of the court
o Rule 26(b)(2) gives the court to limit discovery in some cases.
§ The court must limit discovery if is it “unreasonably cumulative” or could be obtained in a more convenient or less expensive way
o Rule 26(c) allows parties to request a “protective order” from the court to protect a party from “annoyance, embarrassment, oppression, or undue burden or expense.”
§ Requires that the moving party must certify that it has attempted to confer with the opposing party in an effort to resolve the dispute without court action
– When a party refuses to comply with a discovery request, the party seeking discovery can move for an order to compel discovery. If the court grants the motion and the party still refuses to comply, then the moving party can request that the court impose sanctions on the non-complying party.
– Rule 37(b)
o Lists a number of possible sanctions that the court may impose
