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dsvrng
n/a
34
Language - Arabic
1st Grade
05/12/2011

Additional Language - Arabic Flashcards

 


 

Cards

Term
pretrial conference
Definition
purpose: promote settlement;
streamline trial, narrow issues, establish agenda & reduce likelihood of surprise
Term
purpose & effect of discovery
Definition
promote adjudication on the merits v. "surprise!", judicial economy, basis 4 stipulations, settlements and summary judgements (because not in dispute)
Term
rule 26(a) three stages of discovery
Definition
1. initial disclosures including the "meet and confer" conference under 26(f). INITIAL DISCLOSURES:
Term
Initial State of Discovery
Definition
26a(1)(A) identity of each individual likely to have discoverable information that disclosing party MAY use to support its claims or defenses (unless solely for impeachment)
Term

Second State of Disclosure

 

Definition

26(a)(2) requires disclosure of the identity of all persons who may offer expert testimony thru trial.

* Each expert witness who is retained or specially employed to provide expert testimony at trial

1. detailed report- which contains

2. the opinions to be testified to

3. grounds supporting these opinioins

4. details about the expert's qualifications and experience

within 90 days of trial.

Term
Third Stage of Disclosure
Definition

26(a)(3) Shortly before trial-- the evidence (testimony and documentary) that each party MAY use at trial. 

 

At least 30 days before trial.

Term
scope of discovery
Definition

26(b)(1) May inquire into all

1. nonprivileged information, that is

2. relevant to the claim or defense of any party

3. for good cause the court may order discovery of any matter relevant to the subject matter involved in the action

4. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

Term

Discovery examples

Financial Status

Definition

financial worth- not relevant to subject matter and not discoverable 

EXCEPTION 

PUNITIVE DAMAGES

 

Term

Discovery examples

liability insurance coverage

Definition

generally: not admissible at trial because irrelevant and prejudicial- the existence and scope of a liability insurance policy is discoverable in most jx because disclosure can promote settlement

 

FRCP 26(a)(1)(D)

liability insurance agreements must be automatically disclosed

 

Term

discovery examples

privileged matter

Definition

1. attorney-client

2. confid comm b/n spouses

3. testimony against spouse

4. privileged against self-incrimination

5. doctor-patient privilege

 

Term

Trial Preparation Materials Work Product

seminal case

Definition

Hickman v. Taylor

codified in FRCP 26(b)(3)

qualified immunity-

work product protection is not absolute 

Term

FRCP 26(b)(3) Work Product Protection extends to

 

Definition

1. documents or other tangible objects, 

2. prepared in anticipation of litigation

3. by or for a party or that party's representative (e.g. insurance agent)

 

Term

FRCP 26(b)(3) What must be shown to overcome work product 

for ordinary or factual work

Definition

1. upon of showing of substantial need of the material, and

2. that he is unable without undue hardship to otain the substantial equivalent fo the material by other means

 

NOTE:

A PARTY has a right to get her own witness statement and a

NON-PARTY has a right to get his own witness statement without the required showing

Term

FRCP 26(b)(3) Work Product How to Overcome Protection

Mental impression

Definition

impressions, evaluations, conclusions, opinions, theories and strategies of an attorney or toher rep of a party highest degree of protection

EXTREME NECESSITY MUST BE SHOWN (very rare, because it turns the lawyer into a witness)

 

Term
contrast work product with attorney client privilege
Definition

work product immunity protects an attorney's trial preparation materials, not communications between client and attorney 

1. benefits the client by allowing full disclosure

2. benefits the attorney by giving privacy prep and deter free-loading

 

Term

work product protection

UNDERLYING FACTS AND IDENTITY OF WITNESSES

Definition

NOT PROTECTED 

even if acquired at great expense and in anticipation of litigation

the underlying facts and identities of witnesses is not protected under the work product rule

 

Term

discovery of facts and opinions by experts

testifying expert witnesses

Definition

facts and opinions (and reports) of prospective expert trial witnesses even if acquired in preparation of trial are discoverable

 

if an expert witness was retained or specially employed to provide expert testimony a detailed report must be prepared and disclosed under Rule 26(a)(2) and Rule 26(b)(4)(A) requires that deposition follow the disclosure of the report.

 

Term
non-testifying expert retained or employed specially in anticipation of law suit - discovery rule
Definition
only on exceptional circumstances
compare with the work product rule that protects documents and other tangible things but not the underlying facts, FRCP 26(b)(4) protects an experts facts and opinions, whether or not contained in a report acquired in preparation for litigation
Term
Facts and opinions of experts - causally or informally consulted
Definition
casually or informally consulted expert, but not retained or sepcially employed, receives absolute protection, even as to its identity.
Term

Facts an opinions of experts

actor or percipient witness

Definition
no protection
Term

facts and opinions of experts not retained - protection of intellectual property

 

Definition
rule 45(c)(3(B)(ii) allows the court to quash or modify a subpoena to protect the expert or to order appearance if the party requesting it shows substantial need or material cannot otherwise be obtained without undue hardship-- assures expert adequately compensated.

may order production of documents or appeareance.
Term
specific discovery devices
Definition
1. oral depositions frcp 30
2. written despositions frcp 31
3. Interrogatories frcp 33
4. requests for admission frcp 36
Term
Oral depositions FRCP 30
Definition
any party or non-party (by subpoena rule 45)
amended to include sanctions upon those who impeded, delay or frustrate the fair examination of a deponent.
corporation - name corp & describe w. reasonable particularity
Documents- bring relevant documents and tangible things in possession.
4 nonparty subpoena duces tecum to bring documents, must be stated with reasonable particularity
Term
use of deposition at trial FRCP 32 evidence cross over
Definition
may use deposition (raises hearsay issues if try to admit as evidence at trial)
1. may be used to impeach/contradict
2. of a witness- for any purpose allowed by fed rules of evidence. Theory- let the party who made the admission explain it in court. NOTE: is evidentiary but does not have the effect of a Rule 36 admission- which is to knock the issue out of the case.
may be used as affirmative evidence if the deponent is unavailable: dead, ill, incompetent or beyond subpoena power of the court
Term
written depositions FRCP 31
Definition
deposing party submits in advance, party deposed orally, under oath and answers are recorded. No possibility for follow-up questions.
Term
Interrogatories FRCP 33
Definition
25 may be increased by the court.
any party to any other party
non-parties cannot be served with interogs

may be served any time after commencement of the action by the plaintiff and after the service f summons and complaint by other parties
the answering party is under a DUTY OF REASONABLE INQUIRY to undertake SIMPLE INVESTIGATORY PROCEDURES NOT REQUIRING UNDUE BURDEN OR EXPENSE
Corporate duty is higher-- corporate knowledge- collective
Term
Interrogs 2
Definition
may produce business records if extensive search required to answer but not in bad faith to shift the burden
FRCP 37(A) evasive answer is failure to answer and may motion to compel
crossover--evidentiary, hearsay issues, not knock the fact admitted out of case, can impeach-be admitted as evidence to impeach
Term
requests for admissions FRCP 36
Definition
at any time during discovery
re statements or opinions of fact or the application of law to fact, including genuineness of docs
conclusively establishes the matter
failure to respond=deemed admitted
may amend, withdraw- upon court discretion when the PRESENTATION ON THE MERITS will be served & other party fails to show withdrawal will prejudice that party in maintaining act or de on the merits
false denial- liable for reimbursement to prove false
Term
requests for production of documents FRCP 34 (& entry into land)
Definition
at any time during discovery
for copying and inspecting relevant docs and tangible things
w/ reasonable particularity (time, place and manner)
possession or custody - responding party has duty to use influence to get docs Societe internatiale v Rogers
cannot use on non-party (for take subpoena duces tecum)
Term
physical or medical examinations FRCP 35
Definition
when medical,mental, physical condition is in controversy -> of a party, or a person in custody or under the legal control of the party, upon motion and for good cause the court may order
motion required
employees are not in custody-- children &other persons are... guardianship..
Term
rule 35 - part 2 mental condition exams
Definition
where a party places his own mental or physical condition in controversy
where the moving places the other party's condition in issue the moving party must make evidentiary showing that the responding party may have a condition appropriate to the examination request-- CANNOT GO ON A FISHING
EXPEDITION
can request copies but must also give copies of his own doctor's on same condition and thereby waives evidentiary doctor-patient privilege
Term
RULE 35 - PART 3
SCHLAGENHAUF V. HOLDER
Definition
AN EXAMINATION CANNOT BE COMPELLED MERELY TO TEST THE EYESIGHT OR MENTAL OR PHYSICAL CONDITION OF AN EYEWITNESS FOR IMPEACHMENT PURPOSES
Term
rule 37 motion to compel
Definition
where responding party fails to answer, where an interog is objected, where request for doc is refused
sanctions
1. reclusion order re those facts
2. order refusing to allow to oppose or support designated claims or defenses
3. striking out pleadings, staying proceedings
4. hold in contempt
5. $$$ pay expenses
- dismissal, default judgment, to some extent establishment preclusion order will not be upheld on appeal without showing willful failure to comply (negligence is generally the defense)
rule 11 for filing unmeritorious claim- only attorney not firm
Term
Pretrial conference 26f
Definition
pretrial order-
1. supersedes the pleadings
2. modified only to prevent manifest injustice
3. matters not admissible in court if introduced and not objected to in a timely manner
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