DISCOVERY
I. Scope
a. Basic test of Relevance – Rule 26b1
i. Test: Relevance to the claim or defense of any party
1. “Reasonably calculated to lead to claim or defense”
a. Test is not admissibility!
2. FREvid. 401 – “Relevant Evidence” –Definition—evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence
ii. Nature: very broad
iii. Exceptions: privileged information
iv. Limitations: – 26b2 – court may choose to limit if it determines any of these:
1. Unreasonable: discovery sought is unreasonable, cumulative, or duplicative or available from some other source more convenient, less burdensome, or less expensive
2. Ample Time: party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought already
3. Balance of Burdens:
a. needs of the case
b. amount in controversy
c. parties’ resources
d. importance of the issues at stake in the litigation
e. importance of the discovery in resolving the issues
v. Cases:
1. Stefan v. Cheney – Homosexual conduct is not admissible in a case about someone’s status as a homosexual
2. Blank v. Cromwell – Advancement of females in the firm was admissible to the claim of hiring discrimination
II. Pre-Discovery (wave 0)
a. Conference (MANDATORY)
i. Conference of the parties – 26f – parties must confer before starting discoveryunless parties agree, court order, or unless proceeding exempt from initial disclosure by 26a1E
1. No formal discovery until after meeting of counsel (26d)
2. 21 days before Scheduling Conference or when Report is Due
b. Initial Disclosure: 14 Days after 26f Conference
c. Scheduling conference – 16b (if needed)
i. Parties Submit: (“discovery plan”) is 14 days after conf.
d. Report to the parties of discovery plan – 26f
i. scheduling order – 16b
III. Initial Disclosure—Wave 1
a. Rule: Only disclose if it pertains to YOUR claims or defenses
i. Basically only the “good stuff”
ii. If for Impeachment, don’t disclose
1. But, watch out, b/c if don’t disclose and want to use for other than impeachment, will be barred
b. Required Disclosures – 26a1A
i. Name: plus any other relevant information that is known abou
to get non-party to produce documents (you subpoena the documents)
v. Limitations:
1. 25 questions TOTAL on each Other Party (unless leave of court or written stipulation)
a. Includes sub-parts
b. Multiple parties on each side EACH get limit
2. Must be after 26f conference (unless exempt)
vi. Rules:
1. Must answer within 30 days after date of service
vii. Non-Compliance:
1. Motion to Compel: 37a
2. Objections:
a. If timely and appropriate, negate a motion to compel
b. If not, then side has to pay other side’s costs for the objection—37a2
viii. Notes:
1. much cheaper than depositions (but doesn’t get as much info)
2. answer to interrogatory is only a piece of evidence (which can be contradicted by other evidence) – NOT conclusively established (like an admission is)
b. Depositions (Rules 28, 30, 31, 32)
i. Who:
1. A party may depose any witness once
2. No showing of good cause
What:
