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Discovery Outline

Law Outlines > Civil Procedure II Outlines

This is an extract of our Discovery document, which we sell as part of our Civil Procedure II Outlines collection written by the top tier of Thomas Jefferson School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Civil Procedure II Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:



FORMS o Automatic Disclosure o Depositions, taken from both written and oral questions o Interrogatories addressed to a party o Requests to inspect documents or property o Requests for admission of facts o Requests for physical or mental examination


SCOPE o Scope Generally - Rule 26(b)
? Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party
? 2 requirements

* Not privileged

* Relevant to some claim or defense in the suit
? Includes:

* 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
? Court may order discovery of any matter relevant to the subject matter involved in the action if there is good cause o Relevant but Inadmissible
? Relevant information need not be admissible at trial
? Inadmissible material may be relevant - therefore discoverable
- as long as -
? Discovery appears reasonably calculated to lead to the discovery of admissible evidence o Privilege
? Only the person who could assert the privilege at trial may resist discovery on the grounds of privilege o Trial Preparation Privilege/Immunity
? Work Product

* Certain immunity discovery is given to materials prepared by counsel for trial purposes, and to the opinions of experts that counsel has consulted in trial prepQualified Immunity - Rule 26(b)(3)(A)


Immunity given to documents prepared in anticipation of litigation for trial, by a party's representative - normally not discoverable (exception - hardship) o Attorney, consultant, insurance company, etc.


Hardship o Qualified privilege - not absolute o Other side might be able to get discovery of materials by:
? Showing substantial need of the materials in prep of the case AND
? Showing inability to obtain the equivalent materials w/out undue hardship Absolute Immunity - Rule 26(b)(3)(B)

* Even where a party has substantial need for materials (showed qualified immunity) - o Court will protect against disclosure of the mental impressions, conclusions, legal opinions, or legal theories of an attorney Summary

* To be protected, work product must: o Be prepared in anticipation of litigation or for trial by a party's attorney

* However, privilege may not apply if the party seeking discovery of the work product can show: o Substantial need for the materials in the preparation of his/her case AND o Inability to obtain the substantial equivalent of the work product by other means, without incurring undue hardship EXCEPT o Work product that reveals the mental impressions, conclusions, opinions, or legal theories of an attorney
? Never discoverable

o Expert TestimonySummary

* Trial Experts o Expert retained to give testimony at trial o Must prepare expert and be available for deposition o All work product is discoverable

o Party must automatically furnish a list identifying each expert that will be called


Consulting Experts o Expert retained to give advice but not to testify at trial o Work product is rarely discoverable


Percipient Expert o Witness who renders expert opinion but also is a fact witness o (e.g., treating physician)Required Contents of Expert Report - Rule 26(a)(2)(B)

* Complete statement of all of the expert's opinions and the basis and reasons for them

* Data considered by the expert in forming the opinion

* Any exhibits that will be used to summarize or support them

* Expert's qualifications o Including a list of all publications authored by them in the previous 10 years

* List of all other cases in which they have testified as an expert within past 4 years

* Statement of the compensation being receivedTestifying Experts - Rule 26(b)(4)(A)

* Party may depose any person who has been identified as an expert whose opinions may be presented at trial

* If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is providedConsulting Experts - 26(b)(4)(B)

* Makes it difficult to obtain discovery of an expert who has been retained by the other side, but who will not be called at trial

* Party may do so only: o As provided in Rule 35(b) (mental/physical exams) OR o Showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other meansDisclosure of Expert Testimony - Rule 26(a)(2)



*Party must disclose the identity of any witness it may use at trial to present expert testimony Unless otherwise stipulated or ordered by the court - o Disclosure must be accompanied by a written report o Prepared and signed by the witness - if the witness is one retained or specially employed to provide expert testimony in the case Timing of Disclosure - Rule 26(a)(2)(C) o Party must make disclosures at the times and in the sequence directed that the court orders o Absent a stipulation or a court order, the disclosures must be made:
? At least 90 days before the date set for trial OR
? W/in 30 days after the other party's disclosure -

* If the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party in the expert report

Payment of Expert Fees - Rule 26(b)(4)(C)

* Unless manifest injustice would result, the court must require that the party seeking discovery: o Pay the expert a reasonable fee for time spent responding to discovery

o Required Disclosures - Rule 26(a)
? A party must, without awaiting a discovery request, provide to other parties:

* Name and, if known, the telephone number of each individual likely to have discoverable information. . . that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment

* Copy -- or a description by category and location - of all documents that the disclosing party has in its possession, custody or control and may use to support its claims or defenses, unless the use would be solely for impeachment

* Computation of each category of damages

* Any insurance agreement under which an insurance business may be liable to satisfy part or all of a possible judgment

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