American Civil Litigation and Dispute Resolution

1. American Civil Litigationand Dispute Resolution University of Insubria, Como, Italy Jeffrey W. Stempel William S. Boyd School of Law University of Nevada, Las Vegas

2. Segment3 The Discovery and Trial Process

3. Disclosure and Discovery • Prior to 1938, only available in select courts for select cases • A dramatic change in the practice of law • No more “trial by ambush” or guessing at the other side’s proof • Counsel now has the means to become informed about the other side’s facts and evidence • “Fishing expeditions” allowed

4. Disclosure and Discovery • Rule 26 is the fulcrum of U.S. federal court discovery • Similar rule in almost every state • Disclosure rules came in 1993 • But they were intended to simply advance production of information everyone had been getting since 1938

5. Disclosure and Discovery • Rule 26 sets forth the scope of discovery • Any matter that is “not privileged” which relates to the “claims” or “defenses” of the parties • For “good cause” shown, a litigant may have discovery of anything relevant to the “subject matter” of the case • Even if material sought is not admissible in evidence, discovery is permitted as long as discovery is “reasonably calculated” to lead to admissible evidence

6. Discovery -- Privilege • Attorney-Client most important • But courts also recognize other privileges • Clergy (Priest-Penitent) • Doctor-Patient • Trade Secrets • National Security • Marital Communications (but not absolute ban on discovery/evidence from spouse). Wife can testify that she saw husband sell drugs but cannot say that husband told her he sold drugs.

7. Attorney-Client Privilege • Elements of the Privilege • Attorney-Client Relationship • Communication between lawyer and client • Made in confidence • For the purpose of facilitating legal advice • Kept in confidence (e.g., not waived through disclosure) • An “absolute” privilege – no exceptions if it is applicable • But privilege may be destroyed by conduct such as waiver or fail to apply. Most common example of this is the “crime-fraud” exception – communications are not privileged if lawyer’s services used to effect a crime or fraud

8. Trial Preparation or “Work Product” Privilege (Rule 26(b)(3)) • Things prepared by lawyer (and staff, such as paralegals or investigators) “in anticipation of litigation” need not be produced to opponent • But the underlying facts are not privileged • Example: Lawyer interviews witness; lawyer notes privileged but opponent can interview witness or take deposition of witness • A “qualified” privilege rather than an absolute privilege • If the opponent can show inability to get “substantial equivalent” of the materials without “undue burden” the materials may be ordered produced • But attorney mental impressions still protected. For example, parts of a witness interview reflecting counsel’s thinking may be redacted. If that is impossible, the material may be protected even if there is hardship to the opponent (e.g., witness dies after interview)

9. Resistance to Discovery • Party may seek to avoid or limit discovery if the request causes an “undue burden” • Can be measured by sheer volume of what is sought (and what is sought must be relevant even if not voluminous) • Or by the expense of production • Or the inconvenience or inappropriateness of the discovery (e.g., seeking to depose President Obama when plaintiff has a lawsuit against the Post Office for a mail delivery accident)

10. Discovery Devices • Interrogatories (Rule 33) • Document Production Requests (Rule 34) • Depositions (Rule 30) • Medical Examinations or Inspections (Rule 35) • Requests for Admission (Rule 36)

11. Interrogatories • Governed by Rule 33 • Allows each side to ask questions of the other • Presumptive limit of 25 per party • More available if showing of good cause or need • Must make reasonable effort to answer • Important for organizational or entity parties (e.g., corporations, governments). Businesses can not “forget” as easily as a natural person

12. Interrogatories • A good, inexpensive way to find out what the other side is thinking, what it can prove, etc. • Example: “State any and all facts on the basis of which you contend that International Shoe is subject to the jurisdiction of the courts of the state of Washington.” • Or “Set forth in detail the medical expenses which Plaintiff Tompkins claims he incurred as a result of his injuries related to the Erie Railroad Company.”

13. Document Production Requests • Allows for the exchange of written information • No limit on production • Allows parties to see if their respective contentions are supported in the record • Hard for opponent to hide behind what it previously stated • Example: “smoking gun” letter or emails (e.g., “We know the product is unsafe but it is so profitable we have to keep selling it. A warning would reduce sales.”)

14. Depositions • Governed by Federal Rule 30 (for oral depositions) • Rule 31 governs written question depositions, which are far less common • Can be videotaped, is always recorded or transcribed • Presumptive limit of 10 depositions per side • But court can order more for good cause • Presumptive limit on length of deposition to one business day of seven (7) hours but can be changed

15. Depositions • Counsel examines person (or a person representing an entity such as a corporation or government) under oath • Like questioning a witness at trial but different • At trial, you call your witnesses and prepare them to give streamlined, relevant, efficient testimony. Although you might call an “adverse” witness to put information into the trial record, this is comparatively rare

16. Depositions • By contrast, many of the people counsel wants to depose are adverse • Purpose of the deposition is to find out what the other side’s possible witnesses know about the matter • Also to decide if they will be good witnesses at trial (may affect attitudes toward settlement) • Or to “lock in” the deponent’s testimony so that the deponent cannot be evasive at trial

17. Depositions • Depositions thus often have leading question – and effort to “cut to the chase” • But may also simply try to get the witness to pour forth information (e.g., “Tell me everything that happened from the time you opened the factory until the explosion”) • Many depositions are of neutral third parties who may have information. Although objectives similar, less hostility as the neutral witness will be more cooperative

18. Depositions • The deponent is entitled to be represented by counsel who may “defend” the deposition to protect the witness and prevent improper questioning – but may not improperly interfere with the questioning • Counsel also prepares (“sandpapers”) the deponent • The three best answers for the deponent: “yes,” “no,” and “I don’t remember” • Overstated – but this is the idea for adverse deponents, an effort not to help the other side and to say only what is required by law

19. Depositions • If lawyers cannot agree on proper questioning, they may seek court intervention via telephone • Or may take a break from the deposition, seek a court order, and resume the deposition at a later date. • Deposition testimony can be used under many circumstances at trial if the deponent is unavailable at the time of trial

20. Medical Exams, Etc • Federal Rule 35 • Common in bodily injury claims (e.g., auto accident) – Defendant will want someone other than plaintiff’s own doctor to assess the extent of plaintiff’s injury • Can also permit inspections of land, taking of water samples, etc.

21. Requests to AdmitFederal Rule 36 • Party sends requests to admit • Receiving party must admit, deny, or explain why it cannot respond • Sounds wonderful in practice but not very effective for gaining admissions on contested issue • But can be an effective way of avoiding using trial time to prove clearly objectively established facts or non-controversial facts

22. Some Additional Aspects of Discovery • “Meet and Confer” rules • Lawyers and parties required to attempt informal resolution of discovery disputes before bothering the court. • Stipulations (Rule 29) • In the American “adversary system” lawyers and clients are allowed to agree to most anything • As long as it does not intrude upon the authority of the court • Supplementation • Parties must supplement earlier discovery response if failure to supplement would be misleading • Or if changed circumstances require a correction of a previously accurate discovery response

23. More on Discovery • Special Rules for Experts (in Rule 26) • Fear of a party or counsel being ambushed by a slick expert that may be persuasive to layperson jurors but is actually full of hot air • The idea is to allow each side to test the bona fides of the other’s expert and to better prepare for trial • Report by the expert is required – then usually a deposition

24. More Additional Aspects • Disclosures • Initial • These are the disclosures that need to be made at the outset of the litigation • Before 1993, this was material usually sought in the first set of Interrogatories or Document Production Request • Baseline information • Pretrial • Disclosure of Witnesses to be called, Exhibits to be introduced • Part of the final pretrial process -- occurs after discovery and decisions on summary judgment motions

25. More on Required Initial Disclosures • The names and contact information of people with knowledge (who may have “discoverable information”) and the subject of their knowledge if it will be used to support the party’s case • A copy of all documents used to support the party’s claims • A computation of the party’s damage claims • A copy of any applicable insurance policies

26. Enforcement of Discovery Rights • Federal Rule 37 • Where the opposing party is not providing required disclosure or adequate responses to discovery, the requesting party may seek help from the court • An order “compelling” the requested discovery • If opposing party fails to comply with the order, the court may punish the opposing party • If the opposing party’s claim not “substantially justified” (even if not persuasive), the court may award attorney fees to the moving party. Governed by Federal Rule 30

27. Enforcing Discovery Rights • If an order compelling discovery is not obeyed, the court may • Levy a fine against the disobeying party • May require payment of attorney fees • May declare certain facts established for purpose of trial • May enter a default judgment against the party • May even use incarceration as a punishment for contempt • All this is pretty rare. Most American lawyers think courts are not aggressive enough in enforcing discovery rights