Tutor: Sara Bloch & Amanda Schwartz

Email: SEBloch@law.cwsl.edu & AESchwartz@law.cwsl.edu

Meeting Time: Tuesdays 4:20-5:20, AUD

Civ Pro II Worksheet #5

Friday, February 25, 2020

TOPICS COVERED: Formal Discovery

Interrogatories, Requests for Admission or Production
Depositions
Sanctions, Spoliation
Rule 26(a) exchanges
Scope of Discovery

 Terms to Know
 Interrogatories  Expert disclosure
 Requests for Production  Propounding
 Requests for Admission  Responding
 Deposition  Spoliation
 Subpoena  E-discovery
 Subpoena duces tecum  Motion for Sanctions
 Zublake case  Motion to Compel
 Meet and confer  Motion for Protective Order
 Intitial disclosure

Civ Pro II with Professor Klein

Spring 2020
 DISCOVERY

When can discovery begin?

a. This is not always clear. Rules are complex.
b. Rules allow court to control the timeline. Rule 26 (d) ; Rule 26(f); Rule 16 (a)
c. Rule 26(d) - discovery cannot start before 26(f) conference unless this is changed
by: 1. Court Rule, Court Order, or an agreement bvy the parties( parties have to meet
with each other before they meet with the judge)
d. Rule 26(f) - parties must confer as soon as practicable (no judge, just the parties),
and at least 21 days before a scheduling conference or scheduling order under
16(b)
e. Rule 26(f)(2) - parties are jointly responsible for submitting a written response
within 14 Days (Scheduling Conference is the same as Case Management Conference)
Initial disclosure – Rule 26 (a)(1)
a. Initial disclosure rule does NOT require disclosure of ALL relevant evidence to a
claim or defense
b. A party (defendant or plaintiff) must, Without awaiting a discovery request,
provide to the other parties: (see Rule 26(a)(1)(A)(i) – (iv))
o (i): Witnesses But, the party only needs to disclose witnesses (address,
phone number) that it may use to support its claims or defenses. Do not
need to disclose “bad” witnesses. (for instance, in defending someone who
is accused of running a red light, you do not need to disclose a witness who
says he saw your client run the red light – assuming you would not
otherwise use that witness to support your case).
o (ii): Evidence Similar to above, a party only needs to disclose evidence that
it may use to support its claims or defenses. (evidence that it finds
favorable)
o (iii): Plaintiff must disclose a Computation of damages and the basis for
that computation
o (iv): Defense must let plaintiff know if any Insurance agreement would
satisfy all or part of the judgment

SPOLIATION
a. When a document or information that is required for discovery is Destroyed or altered
significantly.
b. If a person negligently or intentionally withholds or destroys relevant information that
will be required in an action they will be liable for spoliation of evidence.
c. PROHIBITED by Rule 37 .

PROPOUNDING
a. Propounding refers to the party requesting information.
b. Propounding party must comply with specific rules of the request.
c. Disclosures: may be certified pursuant to Rule 26. Failure to certify may result in
sanctions under Rule 26(g)(3) ( discovery related)

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RESPONDING
c. Refers to responding to requesting party
d. Must “log” anything claimed as privileged: When a responding party withholds
information that is privileged , it must (1) Claim the information is privileged; (2)
describe the nature of the information not disclosed without revealing privileged
information, but so the propounding party can assess the claim; Rule 26(b) (5).

SCOPE OF DISCOVERY
a. SOME BASICS
1. Governed by FRCP 26(b)(1)
i. Parties may obtain discovery regarding ANY non-privileged matter that is
RELAVENT to a parties claim or defense
1. This allows the parties to obtain virtually any information relevant
to a claim or defense AND proportional to the needs of the case.
a. Relevant material may exceed what material that is
admissible at trial (ex. Hearsay)
b. Privileged matter is not discoverable even when it is
relevant The party from whom the material is being sought
must object
ii. “Information is discoverable unless otherwise limited by a court
order”
1. A party who receives a discovery request may seek a protective
order from the court if necessary, to protect the party from
annoyance, embarrassment, oppression, undue burden of expense.
(more on this below).
b. Expert testimony – Rule 26(b)(4)
1. Opinions and facts of Testifying Experts are discoverable. Opinions and
facts of Non-Testifying experts but retained experts are NOT discoverable
2. Timeline to disclose expert testimony = 90 days before trial date. Rule
26(a)(2)(D)

WORK PRODUCT OBJECTIONS

a. FEDERAL RULE 26(b)(1)-(3): Work product privilege protects documents and other
tangible things prepared in anticipation of trial by or for another party or its
representative
o This refers to any material in the lawyers file (and mind) that are created in the
course of investigating and preparing for a case
o Ex. Interviews, Memoranda, factual or legal issues, emails,
o Policy: avoid free-rider problem, protect the client relationship
b. Rule 26(b)(3)
o the requesting party has to demonstrate substantial need for these items and that
she cannot obtain substantially equivalent information without undue hardship
o Even if this showing is made mental impressions, conclusions, opinions, or legal
theories of a party’s attorney or other representative shall be protected from
disclosure.

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 o Ex: write a memo of witness depo and witness dies then I have to turn over
o But my legal contentions are protected ???

DISCOVERY DEVICES

1. INTERROGATORIES (IRROGS) EXAM WILL TEST ON HOW TO WRITE

THESE- ESSAY QUESTION
a. SOME BASICS
i. Governed by Rule 33
ii. These are questions propounded from one party to another seeking
information for relevant issues in the dispute.
iii. Inexpensive means of asking for information.
iv. Normally these questions are carefully crafted (by one party to reveal as
little information as possible and by the other party to require specific
information)
v. Most effective tool for background info
vi. Answers ARE under oath
vii. Must be answered with all information available to the party.
viii. Can only be sent to A PARTY to the action.
1. There is a limit to 25 questions per party pair
b. RULE 33 HIGHLIGHTS
i. Unless otherwise ordered by the court…a party may serve NO MORE
than 25 written interrogatories (including discrete subparts) …
ii. Scope: An interrogatory may relate to any matter that may be looked into
under Rule 26(b)
1. The court may order an interrogatory need not be answered until
designated discovery is complete, or a pretrial conference, or some
other time.
iii. Answers and objections:
1. Responding party: The interrogatories must be answered by the
party to whom the Irrog was directed
2. If the IRROG is directed at a corporation or a business, it must be
answered by an officer or agent…
3. TIME TO RESPOND IS 30 Days after being served. (the court can
order a shorter or longer time- Court can play with all these rules)
4. The grounds for objecting to an irrog must be stated Specifically…
c. Propounding Interrogatories – 4 parts:
i. Title (from whom to whom; similar to caption)
ii. Instructions (due date, where to send)
iii. Definitions
iv. Questions (the interrogatory itself; mixed questions of law and fact
are okay since responding lawyer can craft answers)

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2. REQUESTS FOR PRODUCTION (RFPs)
a. SOME BASICS
i. Governed by Rule 34
ii. Authorizes a party to require an opponent to produce designated
documents or things in control for inspection by the other party
iii. Parties crafting these requests normally craft them broadly
iv. Responding party may simply offer to Open their records as they are
kept in the ordinary course of business
b. RULE 34 HIGHLIGHTS
i. A party may serve these requests within the scope of Rule 26 .
ii. Procedure: Must describe with reasonable particularly the item of each
category to be inspected and a reasonable time and place and manner for
inspection.
iii. Party must respond to requests within 30 days of being served or if
delivered under Rule 26(d)(2) – within 30 days of the parties first 26(f)
conference. A shorter or longer period may be stipulated by the court….
iv. If objected to, must state the basis of an objection.

3. REQUESTS FOR ADMISSION (RFAs)

a. SOME BASICS
i. Governed by Rule 36
ii. Discovery device that allows one party to admit or deny a statement under
oath
iii. If admitted, the statement is considered to be true for all purposes of the
intended trial
iv. This is a way of narrowing the scope of trial and eliminating uncontested
to issues. (what issues contested and what not)
v. The receiving party is required to admit or deny the truth of the
statements or to raise an objection to the request.
vi. Admissions can be withdrawn
b. RULE 36 HIGHLIGHTS
i. Mixed Questions of law and Fact are okay.
ii. May only be sent to parties
iii. One subject per request
iv. No numerical limit to requests however can be limited by the court (FRCP
26(b)(2)(A))
v. If you deny, you must explain why
vi. Time to respond is 30 days after being served.
vii. If you do not respond, it is deemed admitted

4. DEPOSITIONS (Depos)
a. SOME BASICS
i. Governed by Rules 30 and 45
ii. Generally, a deposition should be used later in the discovery process so
counsel can have a thorough understanding of the case.
iii. Most expensive way of discovery

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 iv. However, from a tactical standpoint a deposition could be taken early to
lock a witness or party to their statement.
v. Pros: under oath, most effective way to gather information from a witness,
normally has to answer with little coaching from the attorney,
1. The deposition is on the record and CAN be utilized at trial.
vi. Cons: Can be costly and take time
b. DEPOSITION MECHANICS
i. Rule 30 (a)(1) allows counsel to take depositions of any person
(including a nonparty)
1. Any person with relevant information to the case.
ii. FRCP 30(b)(1) If the deponent is a party counsel should execute the depo
by sending a notice of deposition to all parties in the action stating the
time and place for the deposition.
iii. FRCP 45: If the person is a non-party, then she must also be subpoenaed
for the deposition.
iv. If the deposing counsel wants the party to bring documents for their
deposition the deponent should be served with a “Subpoena duces
tecum”
v. Time and place of the deposition will normally be arranged by counsel.
vi. At the time of the depo, the witness will be sworn in and may be examined
by deposing counsel on any issue within the scope of discovery.
vii. NOTICE OF DEPO
1. Notice in general – if a party wants to depose someone they must
give reasonable notice.
2. The notice to party deponent may be accompanied by a request
under Rule 34 to produce documents or other tangible things.
viii. FRCP 30(c) – a party may object to a question during a deposition but
generally the witness is still required to answer.
1. Rule 30© (2) Where the objection is based on privilege not to
reveal certain information, the counsel may tell client not to
answer the question.
2. After the deposition counsel will have the right to cross examine.

We’ll cover E-Discovery next week!