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I have a Rule 26(f) conference coming up with the Plaintiff in an AP action - I understand the general premise of this, but what do I need to know/protect against within this discussion - they wish to conduct it by phone . . .
Optional Information: State/Country relating to question: Massachusetts
You have no obligation to provide any substantive evidence to the other party's attorney during the conference. The goal is to set dates for discovery, periods of unavailability of parties and probably most important, to set a discovery cut off date, after which no further discovery may be conducted. This is to permit the parties to marshal their evidence and prepare for trial without being buried with a last-minute discovery request. The typical discovery cut off is 30 days prior to the date set for trial by the court.Hope this helps. NOTICE: My goal here is to entertain while educating the public about the law. Your positive feedback to the website is appreciated. If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!
Experience: Attorney and Real Estate Broker -- Retired (mostly)
The AP stems from a civil action that is pending and who's discovery period has long since past. Is there a way to incorporate by reference any and all materials already discovered in that action as the basis for what could be presented in the AP ? I also noticed that anything that woudl be used to "impeach" does not have to be disclosed. As everything I will be presenting will be to defend against the AP action, isn't all of it used for "impeachment" in one way or the other ? The "big" thing I want to do is depose the Plaintiff as out of ignorance the first time around I never did - is that allowable in an AP case ?
The AP stems from a civil action that is pending and who's discovery period has long since past. Is there a way to incorporate by reference any and all materials already discovered in that action as the basis for what could be presented in the AP?A: The parties could stipulate in writing to an order in which they expressly agree to the admissibility of specific evidence obtained during discovery in the state court civil actions. I also noticed that anything that would be used to "impeach" does not have to be disclosed. As everything I will be presenting will be to defend against the AP action, isn't all of it used for "impeachment" in one way or the other ?A: Impeachment evidence is used to undermine the credibility of witness testimony. However, such evidence does not go to the proponent's burden of proof. So, if you were to hold back all of your evidence and offer only impeachment evidence and testimony, you could still lose, because as a matter of law, you would have merely weakened, but not overcome, the plaintiff's case. In it's simplest terms, if the winner were determined by a score, then impeachment evidence can only reduce your opponent's score -- it cannot add to your own score.The "big" thing I want to do is depose the Plaintiff as out of ignorance the first time around I never did - is that allowable in an AP case ?A: An AP is a full civil litigation -- except that no jury generally is permitted, without the express consent of all parties. But, you can depose the plaintiff. Hope this helps. NOTICE: My goal here is to entertain while educating the public about the law. Your positive feedback to the website is appreciated. If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!
Last question - I noticed you mentioned that the AP is a full civil litigation w/o a jury. Does it also allow a Motion for Summary Judgment to be considered as well ? There are several issues that while raised in the motion to dismiss were not considered by the court specifically, including core proceeding issues, Statute of Limitations, etc., that I would raise prior to trial thru a MSJ. If the MSJ is allowable, do I have to specific that to the Plaintiff in this 26 conference that it is my intent to do so ?
Does it also allow a Motion for Summary Judgment to be considered as well?A: Yes.There are several issues that while raised in the motion to dismiss were not considered by the court specifically, including core proceeding issues, statute of limitations, etc., that I would raise prior to trial thru a MSJ. If the MSJ is allowable, do I have to specific that to the Plaintiff in this 26 conference that it is my intent to do so ?A: MSJ is expressly authorized by FRBP 7056 (incorporating verbatim FRCP 56). No disclosure of intent to file MSJ is required.Hope this helps. NOTICE: My goal here is to entertain while educating the public about the law. Your positive feedback to the website is appreciated. If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!