Civil Litigation

  1. Cheat sheet of Discovery
    • Interrogatories
    •     Party-only
    •     Rule: 30 days to answer - Exception: 45 days to answer (if with summons and complaint)
    •     Unlimited sets of Interrogatories, maybe a limited number of questions in each set (CHECK LOCAL COURT RULES)
    • Request for Production
    •     Party Only
    •     Documents, Tangible Things, Entry Upon  Designated Land
    • Depositions
    •     Party and NON-PARTY 
    •     Must give REASONABLE notice
    •     Send Notice of Deposition to parties, Notice of Deposition and Subpoena to Out-of-State parties and NON-parties
    •     ONLY type of discovery that can be done prior to lawsuit
    •     Costly
    •     TYPES: Oral Deposition, Deposition upon written questions, Deposition to perpetuate testimony
    • Mental and Physical Exams
    •     Party Only
    •     Independent Medical Exam
    • Request for Admissions
    •   Party Only
    •   You reply to request for admissions
    •   Rule: 30 days to answer - Exception: 45 days to answer (if with summons and complaint)
  2. List the 7 functions of discovery:
    • Narrow issues for trial
    • Avoid Surprises
    • Assess the credibility of witnesses
    • Reveal Strengths and weaknesses
    • Promote Settlement
    • Preserve Evidence
    • Promote Consistency
  3. List privledges
    • Husband/Wife
    • Atty/Client
    • Doctor/Patient
    • Clergy/Parishioner
    • Work Product
    • Patents/Trademarks
  4. What are the 3 elements of a motion
    Must be in writing

    Must state the grounds with particularity

    Must state the relief being sought
  5. Name the 3 categories in the Request to Produce
    (Party Only)

    • Documents
    • Entry unto designated land
    • Tangible things
  6. How far does a deponent have to travel for a deposition?
    Up to 100 miles from home, work, or place that they transact business
  7. Name the two tests used in requesting an enlargement of time
    Good Cause - Before deadline

    Excusable neglect - After deadline
  8. What is the difference between a motion of summary judgment and a motion for judgment on the pleadings.
    Summary Judgment considers the pleadings and beyond - so discovery is considered.  Question of LAW

    Judgment on the Pleadings - is the pleadings and is a Question of FACT
  9. What are the 3 categories of experts?
    Testifying Experts - they are discoverable

    Consulting Experts - Qualified discovery - meaning - Discoverable under exceptional circumstances when impractical to obtain facts or opinion by other means

    Informal Experts - not discoverable
  10. What are the rules of the Clawback Provision?
    Applies only to ESI

    Clawback is when you retrieve information that you disclosed in inadvertently produced ESI which you want to take back (for example if it was work product or you didn't scrub the metadata
  11. List 2 non-dispositive motions
    (the trial continues)

    • motion to compel
    • motion to strike
    • motion for an enlargement of time
    • motion for protective order
  12. List 2 dispositive motions
    • motion for summary judgment
    • motion for judgment on the pleadings
    • motion to dismiss
  13. What is an interrogatory?
    • A written question
    • Party only
    • answered under oath
    • party signs answers
    • atty signs for objections

    • Wisconsin - unlimited number of sets
    • Check local court rules for number of interrogatories

    Answers due within 30 days - exception is 45 days if the interrogatories were served with the summons and complaint
  14. What is the technique for restating an interrogatory before answering?
  15. What are the 5 possible responses to a Request for Admission:
    • Admit
    • Deny
    • Admit in part/Deny in part
    • Objection stating specific grounds
    • Neither admit or deny:  After a reasonable inquiry argue that you have insufficient information or knowledge to form a belief.
  16. What letter can be sent to make sure that ESI is not destroyed?
    A preservation letter
  17. What is a person being deposed called?
  18. What are the three types of depositions?
    • 1. oral deposition
    • 2. deposition upon written questions
    • 3. deposition to perpetuate testimony
  19. What is the relevancy test?
    Must be reasonably calculated to lead to the discovery of admissible evidence
  20. What are some paralegal tasks in deposition?
    Paralegals can...

    • schedule depositions
    • prepare questions
    • find a location
    • send the Notice of Deposition and/or subpoena
  21. What is the name for a subpoena      to get a non-party to bring something along?
    Subpoena Ducus Tecum
  22. What are three things that you need to prove to obtain qualified work product privilege?
    • Substantial need
    • AND
    • Undue Hardship
    • AND
    • Substantial Equivalent not available
  23. What is the sequence in the discovery process?

    There is no sequence - it is flexible
    There is no sequence - it is flexible
  24. Who signs an interrogatory under oath?
    The party
  25. In Wisconsin, what is the legal test regarding the option to produce business records?
    The burden of deriving the information must be substantially the same for the person answering as for the person asking the interrogatory.
  26. Discovery supplementation (add)
    If response to discovery request was COMPLETE when made - there is no duty to supplement.

    • EXCEPT:
    • New Witness
    • New Expert
  27. Discovery Amend (Change)
    Must seasonably amend if -

    The party knows that the response was incorrect when made
  28. How many sets of Interrogatories can be served in Wisconsin
  29. What are the 3 types of requests for production?
    • Documents
    • Entry unto land
    • Tangible Things
  30. What 2 things can you use the request for admission for?
    • Written statement to admit or deny statements
    • *opinion of facts, or the application of Law to Fact

    • Written request to admit or to deny genuineness of documents
    • *serve documents with request unless they have otherwise been made available for inspection and copying.

    (So you don't have to get the party to admit or deny at trial - and don't have to authenticate)
  31. Redacting
    Blackening out

    If you don't screen documents (this is not for ESI docs) for a request for production then you negligently disclose information
  32. If you have a motion to compel - and the party does not follow - what are the next steps?
    the next move is a motion for sanctions

    If granted - then they can be charged with contempt, sanctions or even dismiss case
  33. Uses of Depositions
    • use to impeach witness
    • use if witness is dead
    • use for expert testimony (if not present)

    use to bolster credibility of witness (NO!!!!)
  34. Request for Admission
    If you do not answer the request for admission, then it is like automatically admitting and it is entered into the court record as fact
  35. Answering interrogatories
    If you don't answer completely, it is the same as if not answered at all
  36. Discovery Conference
    Set specific limits on ESI

    Can not answer interoggatories or serve a request to inspect until after all parties confir regarding ESI -

    • A. Subjects on which ESI discovery may be needed
    • B. When such discovery should be completed by
    • C. Whether discovery should be in phases or limited to a particular issue

    comes in forms of .tiff and .pdf docs
  37. What are valid objections to discovery
    • Too Vague
    • Too Broad
    • Irrelevant

    • Not valid:
    • Inadmissible
  38. Can you cross examine at deposition?

    other notes:

    • deposition is party or non-party
    • can be done before trial
    • usually have a court reporter, attys, paralegal, videographer...


    Reasonable notice
Card Set
Civil Litigation
Final review - Civil Litigation