CIVIL PROCEDURE CLASS 20 DISCOVERY I

1. CIVIL PROCEDURE CLASS 20DISCOVERY I Professor Fischer Columbus School of Law The Catholic University of America October 7, 2005

2. PRACTICE EXERCISE 13 • There is a Model Answer for this Practice Exercise.

3. DISCOVERY • What is the purpose of discovery? • The United States has very BROAD discovery rules under the FRCP • Reform

4. A COMPARATIVE LOOK AT DISCOVERY • Discovery is not an inevitable part of a procedural system • Steve Subrin, Discovery in a Global Perspective: Are We Nuts?, 52 De Paul L. Rev. 299 (Winter, 2002)

5. WHAT MAY BE OBTAINED THROUGH DISCOVERY? • What Federal Rule of Civil Procedure governs the SCOPE of discovery in most civil actions (other than those set out in Rule 81)? • Rule 26(b). The R. 81 exceptions are, e.g. bankruptcy proceedings and a few other limited cases • What may be obtained through discovery?

6. WHAT MAY BE OBTAINED THROUGH DISCOVERY? • FRCP 26(b): Unless other limits by court order, any matter that • 1. Is RELEVANT to the CLAIM OR DEFENSE of any party, or (where ordered by court FOR GOOD CAUSE, is RELEVANT to the SUBJECT MATTER involved in the action) • AND DOES NOT FALL WITHIN EXCEPTIONS in (2) and (3). What are these exceptions?

7. WHAT MAY BE OBTAINED THROUGH DISCOVERY? • 2. Is not “unreasonably cumulative or duplicative”, is not available from more convenient source, and is not unduly burdensome • 3. Is not PRIVILEGED

8. SUMMARY • Summary: Can obtain discovery of relevant material provided exceptions at subparagraphs (2) and (3) do not apply.

9. RELEVANCE • what is “relevance”? Is that term defined in the FRCP? • Note: this rule on the SCOPE of discovery was narrowed by amendments in 2000. • What does Tom Rowe think about this change?

10. RELEVANCE AND ADMISSIBILITY • Discoverable material includes written matter, things, ID of persons with knowledge of matter, information about location of persons with knowledge of discoverable materials - including investigators • To be discoverable, must information be admissible at trial under applicable rules of evidence?

11. LIMITATIONS ON DISCOVERY OF RELEVANT MATTER • When can a court limit discovery under Rule 26(b)(2)?

12. 26(b)(2) LIMITATIONS ON DISCOVERY - UNREASONABLY BURDENSOME • Discovery is “unreasonably cumulative or duplicative” • Discovery obtainable from more convenient source • Party seeking discovery has had “ample opportunity” to obtain matter on discovery • Burden of discovery outweighs benefits • Determining whether discovery should be limited is highly discretionary. Court may consider needs of case, amount in controversy, parties’ resources, importance of issues at stake, importance of discovery in resolving issues.

13. LIMITING SCOPE OF DISCOVERY UNDER 26(b)(2) CAN BE DONE BY • Objection to discovery request (e.g. answer interrogatory, response to request for documents) • Motion for a protective order under 26(c) accompanied by a certification that parties met prior to filing of motion and attempted to resolve dispute without intervention by the court • Court on own initiative

14. LIMITATIONS ON DISCOVERY - PRIVILEGE • Some materials are protected from discovery as privileged under 26(b)(1) and (3) e.g. • attorney-client privilege • or work product privilege • There are other types of legal privilege (e.g. priest/penitent, physician/patient.self-incrimination, various government privileges, spousal privilege]. These depend on the applicable rules of evidence. • Privilege can be waived

15. PRIVILEGE LOGS: FRCP 26(b)(5) • If a party withholds material from discovery on the grounds that it is privileged, that party must make a privilege log • In the log, the party should describe the nature of the documents without revealing privileged information and also state the type of privilege asserted.

16. WORK PRODUCT PRIVILEGEFRCP 26(b)(3) • When Hickmanwas decided, FRCP did not contain any exception to discovery for attorney work product • Work product doctrine in Hickman has been codified in FRCP 26(b)(3).

17. TYPES OF WORK PRODUCT • 1. ORDINARY WORK PRODUCT: Documents prepared in anticipation of litigation by a party’s representative • Are these discoverable? If so, in what circumstances? • 2. OPINION WORK PRODUCT Attorney’s thought processes in preparing a case • Are these discoverable? If so, in what circumstances

18. WORK PRODUCT PRIVILEGE • Does the work product doctrine in FRCP 26(b)(3) apply to nonlawyers, such as insurance adjusters and investigators?

19. WRITTEN STATEMENTS BY PARTIES TO LAWYER • Through a r. 34 document request, a party can obtain a copy of its own statement without meeting the R. 26(b) showing of substantial need. • A witness can also do so on request. If request refused, the witness can move to compel under R. 37. • NOTE: a party’s statement can always be used as direct evidence at trial by an opposing party even if the party is not testifying

20. REVIEW - WHAT MAY BE OBTAINED THROUGH DISCOVERY? • FRCP 26(b): Unless other limits by court order, any matter that • 1. Is RELEVANT to the CLAIM OR DEFENSE of any party, or (where ordered by court FOR GOOD CAUSE, is RELEVANT to the SUBJECT MATTER involved in the action) • AND DOES NOT FALL WITHIN EXCEPTIONS in (2) and (3). What are these exceptions?

21. REVIEW – EXCEPTIONS TO WHAT MAY BE OBTAINED THROUGH DISCOVERY • 2. Is not “unreasonably cumulative or duplicative”, is not available from more convenient source, and is not unduly burdensome • 3. Is not PRIVILEGED

22. LIMITING SCOPE OF DISCOVERY UNDER 26(b)(2) CAN BE DONE BY • Objection to discovery request (e.g. answer interrogatory, response to request for documents) • Motion for a protective order under 26(c) accompanied by a certification that parties met prior to filing of motion and attempted to resolve dispute without intervention by the court • Court on own initiative

23. RELEVANCE AND ADMISSIBILITY • Discoverable material includes written matter, things, ID of persons with knowledge of matter, information about location of persons with knowledge of discoverable materials - including investigators • To be discoverable, must information be admissible at trial under applicable rules of evidence?

24. LIMITATIONS ON DISCOVERY - PRIVILEGE • Some materials are protected from discovery as privileged under 26(b)(1) and (3) e.g. • attorney-client privilege • or work product privilege • There are other types of legal privilege (e.g. priest/penitent, physician/patient.self-incrimination, various government privileges, spousal privilege]. These depend on the applicable rules of evidence. • Privilege can be waived

25. PRIVILEGE LOGS: FRCP 26(b)(5) • If a party withholds material from discovery on the grounds that it is privileged, that party must make a privilege log • In the log, the party should describe the nature of the documents without revealing privileged information and also state the type of privilege asserted.

26. WORK PRODUCT PRIVILEGEFRCP 26(b)(3) • When Hickmanwas decided, FRCP did not contain any exception to discovery for attorney work product • Work product doctrine in Hickman has been codified in FRCP 26(b)(3).

27. TYPES OF WORK PRODUCT • 1. ORDINARY WORK PRODUCT: Documents prepared in anticipation of litigation by a party’s representative • Are these discoverable? If so, in what circumstances? • 2. OPINION WORK PRODUCT Attorney’s thought processes in preparing a case • Are these discoverable? If so, in what circumstances

28. WORK PRODUCT PRIVILEGE • Does the work product doctrine in FRCP 26(b)(3) apply to nonlawyers, such as insurance adjusters and investigators?

29. WRITTEN STATEMENTS BY PARTIES TO LAWYER • Through a r. 34 document request, a party can obtain a copy of its own statement without meeting the R. 26(b) showing of substantial need. • A witness can also do so on request. If request refused, the witness can move to compel under R. 37. • NOTE: a party’s statement can always be used as direct evidence at trial by an opposing party even if the party is not testifying

30. HYPO • Polly was injured when she was struck by a bus owned by the Blue Bus Company. Polly then sued Blue Bus Co. in federal court. Immediately after the accident, Miles, a vice-president of Blue Bus Co., went to the scene and made a full investigation, including interviews with witnesses and measurements of the accident location. Miles made a written report to the directors of Blue Bus. Can Polly obtain Miles’ report?

31. ANOTHER QUESTION • Same facts as previous hypo, but through the expenditure of more than $10,000, Blue Bus Co.’s attorney has uncovered another eyewitness to the accident. Polly serves an interrogatory asking for the names of all eyewitnesses and Blue Bus objects on the ground of “trial preparation materials”. Must Blue Bus Co. disclose the witness’s name?

32. DISCOVERY TECHNIQUES I • Now that we understand the SCOPE of what is discoverable, we will study the major discovery procedures used in federal court • Today we will learn about the discovery techniques of informal discovery and automatic disclosures. • Automatic disclosures apply only to parties.

33. REQUIRED DISCLOSURE RULES • A radical change, promulgated in 1993 amendments to FRCP • Many changes to these initial disclosure rules in 2000 amendments • What is the purpose of automatic disclosure?

34. REQUIRED DISCLOSURE RULES • Core concept: Certain information must be provided by one party the other without awaiting a discovery request. Categories are witnesses, documents/things, damages computations, insurance. Makes discovery less party-driven

35. WHAT MUST BE DISCLOSED AT THE OUTSET OF THE CASE UNDER 26(a)?

36. WHAT MUST BE DISCLOSED AT THE OUTSET OF THE CASE UNDER 26(a)? • 1. WITNESSES – • 2. DOCUMENTS • 3. DAMAGES COMPUTATIONS • 4 INSURANCE

37. TIMING • When must these initial disclosures under 26(a)(1)(A)-(D) be made?

38. TIMING • When must these initial disclosures under 26(a)(1)(A)-(D) be made? • Within 14 days after the discovery meeting (conference) required by Rule 26(f) unless a different time is set by court order or stipulation • When is the discovery meeting?

39. Initial Disclosure Schedule • Court may schedule initial scheduling conference for parties and judge under R. 16(a) • Under 26(f), Parties conduct discovery meeting at least 21 days before conference/ 16(b) order. Parties can’t seek discovery under rules before this meeting. (see26(d).

40. Initial Disclosure Schedule • Parties must make voluntary disclosures at or within 14 days after discovery meeting (26(a)) • Parties and judge meet for 16(b) scheduling conference. Court to issue scheduling order as soon as practicable w/in 120 days after complaint is served on D and 90 days after appearance of D

41. Discovery Conference • Rules thus anticipate that discovery plan will be included in the scheduling order court must issue within 120 days after service of the complaint. • What goal is this 26(f) mandatory discovery conference designed to achieve? Do you think it does a good job in achieving this goal?

42. HOW MUCH INFO. MUST BE DISCLOSED • Sam has not finished investigating his case by the time limit for automatic disclosures under 26(a)(1). Does he still have to comply with the automatic disclosures? Why or why not?

43. WHAT MUST BE DISCLOSED AS TRIAL APPROACHES? • ID of experts (FRCP 26(a)(2)(A)) and Experts reports (FRCP 26(a)(2)(B)) • ID of trial witnesses that party will use or may use (except solely for impeachment) and designations of deposition testimony (FRCP 26(a)(3)(A) & (B)) and documents/exhibits that will/may be evidence at trial (exhibits) (FRCP 26(a)(3)(C) • When must these expert disclosures be made? • When must these pretrial disclosures be made?

44. TIMING OF THESE DISCLOSURES UNDER 26(2) and 26(3) • Timing for disclosures re: experts - 90 days before trial in absence of stipulation/court order – or if solely to rebut other party’s evidence, 30 days after other party’s disclosure. • Timing for pretrial disclosures - 30 days before trial in absence of court order. Objections w/in 14 days thereafter. Objections not made other than relevance/prejudice are waived.

45. FORM OF DISCLOSURES • Unless court orders otherwise, under FRCP 26(g) & 26(a)(4), initial disclosures -under FRCP 26(a)(1) - (3) MUST BE: • In writing • Signed by attorney/unrepresented party NB SANCTIONS RISK HERE – see 26(g)(3) • Served on other parties – 26(a)(4) • Only the pretrial disclosures must be filed with court – 26(a)(3)

46. FAILURE TO MAKE AUTOMATIC DISCLOSURES • What happens if a party fails to make the required automatic disclosures under 26(a)?

47. SUMMARY OF 2000 CHANGES TO INITIAL DISCLOSURES – • Scope of disclosures narrowed • Local rules can no longer reject automatic disclosures in 26(a)(1) except in certain specified categories of action in new FRCP 26(a)(1)(E) • Slight differences in timing for 26(f) discovery conference and automatic disclosures (14 rather than 10 days after 26(f) conference) unless stipulation or court order provides otherwise, or valid objection under the rules • Filing of automatic disclosures is no longer required (nb. Local rules frequently provided that filing was unnecessary)