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WHAT YOU NEED TO KNOW
__ Ability to Agree
__ The Three Levels
__ Privilege
__ Deposition Conduct
__ Mandatory Disclosure
__ Subpoenas
__ Experts and Fact Witnesses
__ Written Discovery
__ Pre-Filing Depositions
__ Self-authenticating Documents
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ABILITY TO AGREE
__ Most provisions are subject to
agreement between the parties
THE THREE LEVELS
__ Level One- Small cases
__ Level Two - Most cases
__ Level Three - Special cases
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LEVEL ONE - RULE 190.2
__ Suit involving $50,000 or less
__ Plaintiff's pleadings control -
ok to amend out
__ Award is limited to $50,000 -
No trial amendments
__ No children involved
__ Six hours of deposition only ...
__ 25 Interrogatories
__ Discovery re-opens if Plaintiff
Amends out of Level One
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LEVEL TWO - RULE 190.3
__ Applies unless Level 1 or 3 governs
__ Discovery Ends:
__ 30 days before trial; or
__ 9 months from 1st depo or
the due date for first written discovery
__ 25 Interrogatories
__ 50 hours of deposition time per side
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LEVEL THREE - RULE 190.4
__ Must have a tailored Discovery
Control Plan
__ Plan MUST contain:
__ trial date
__ discovery period
__ joinder deadline
__ pleading deadline
__ expert designation deadline
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FILING OF DISCOVERY MATERIALS
__ Rule 191.4 - Do Not File:
__ Discovery requests, depo notices
and subpoenas served only on parties
__ Responses and objections to discovery
requests and deposition notices
(whether served on party or nonparty)
__ Documents and things produced
__ Statements of materials withheld because of
privilege or statements that privilege
matters have been mistakenly produced
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FILING OF DISCOVERY MATERIALS
__ DO FILE:
__ Discovery requests, depo notices &
Subpoenas served on non-parties
__ Discovery motions and responses to
motions pertaining to discovery matters
__ Statement that disclosure under
local Rule 4.4 has been completed
__ EXCEPTIONS
__ Court order
__ In support of a motion or response
__ Necessary for proceeding in appellate court
__ Retention requirement is 6 months after case
is over (includes appeal) for original
or copy of material not filed
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PRIVILEGE
__ Work Product
__ Partial Objection
__ Withholding Statement
__ Privilege Log
__ Exemption from withholding statement
requirement
__ Non-waiver and snap back provision
WORK PRODUCT PRIVILEGE
RULE 192.5
__ Work Product is Defined:
__ ... material prepared, or mental impressions
developed in anticipation of litigation
or for trial by or for a party or a
party's representative, including the party's
attorney, consultants, sureties,
indemnitors, insurers, or agents, or
__ a communication made in anticipation
of litigation or for trial between a party
and the party's representative or
among a party's representatives
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WORK PRODUCT
__ Distinction between core work product -
attorney mental processes
- not discoverable and
__ Other work product, discoverable sometimes:
__ showing of substantial need and
__ undue hardship
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PARTIAL OBJECTION - RULE 193.2(b)
__ A party must comply with as much of the request
to which the party has made no objection
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WITHHOLDING STATEMENT-RULE 193.3
__ If privilege is claimed, it may be withheld but
__ the withholding party must state that info
is being withheld, and indicate to which request
the withholding applies AND the priviledge
being asserted
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PRIVILEGE LOG - RULE 193.3(b)
__ Requesting party then requests responding
__ Within 15 days, responding party must
provide privilege log which
__ describes info withheld
__ asserts the specific privilege for each item/group
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EXEMPTIONS FROM WITHHOLDING
RULE 193.3(c)
__ No need for withholding statement or log if
party withholds communication to or
from its lawyer
__ created in this litigation
__ related to this litigation
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NON-WAIVER - RULE 193.3(d)
__ NO WAIVER by inadvertent production IF
__ within 10 days after learning of production
__ amend response to assert privilege.
__ Requesting party must promptly return
info and any copies pending court ruling
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DEPOSITION CONDUCT - RULE 199.5(d)
__ Conduct as if in Courtroom
__ No private conferences except at breaks
__ Objections:
__ "leading"
__ "form"
__ "nonresponsive"
__ Instruction not to answer:
__ privilege
__ abusive question
__ answer would be misleading
(When did you stop beating your wife?)
__ Suspend the deposition if:
__ time expired
__ depo conduct rules being violated
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MANDATORY DISCLOSURE- R. 194
__ NOT OBJECTIONABLE
__ identity of parties/potential parties
__ legal theories/factual bases
- prioranswer cannot be used for impeachment
__ economic damages calculations - same
__ persons with knowledge of relevant facts
__ expect basics ....
__ insurance/indemnity
__ settlement agreements
__ discoverable witness statements
__ medical bills/authorizations
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SUPPLEMENTATION - RULE 193.5
__ Duty to supplement incorrect or
incomplete when made or no longer
true or correct ... If request is for:
__ persons with knowledge of relevant fact
__ trial witnesses
__ expert witnesses
__ Other discovery too, UNLESS made
known to other parties in writing,
or on the record in deposition
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SUBPOENAS - RULE 176
__ Range expanded to 150 miles
__ attorney may issue
__ Subpoena/notice duces tecum: follow 30
day time limit (just like request for production
__ Custodian does not need to come to depo
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EXPERTS AND FACT WITNESSES
- R.195.3
__ Timing of expert designation/reports and deposition
__ Party seeking affirmative relief
__ Report? Other side must tender report next
__ No report? Must tender for deposition
before other side designates
__ No interrogatories on experts
- Disclosure Requests Only
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FACT WITNESSES - RULE 192.3(h)
__ Witnesses statements are discoverable
unless otherwise privileged
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WRITTEN DISCOVERY - RULE 197
__ If object to date/time, must provide
reasonable alternative
__ Contention interrogatories: describe in
general the legal theories and factual bases
__ May not be used to require party to
marshal its proof
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SELF-AUTHENTICATING DOCUMENTS - RULE 193.7
__ Documents are self-authenticating as to
the party producing them for discovery or
trial purposes
__ Unless the producing party promptly objects
__ ??? What does "promptly" mean???
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PRE-SUIT DEPOSITIONS - RULE 202.1
__ Can petition the Court for leave to depose pre-suit either:
__ to perpetuate or
__ to investigate a potential claim or suit
__ File where suit is anticipated or where witness resides
__ State suit anticipated or investigating
__ Services:
__ on deponent
__ if suit is anticipated on all those expected to have an adverse interest
__ Court MUST find:
__ if suit is anticipated, prevent failure or delay of justice; or
__ benefit outweighs burden
__ Court may prohibit or restrict use to protect a person who was not a party when the deposition was taken
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