Civil procedure Feb. 20

1. Civil procedure Feb. 20 General concepts of discovery

2. Handout problem • FYI – the problem you have been assigned for next Wed was an exam question two years ago. It was from an in class exam – allotted time – one hour. • REMINDER – AEP tutorials on Friday • REMINDER – PILA Auction on Saturday

3. Review – Relation Back • After SOL – if want to amend complaint, new claim must relate back to claim in orig’l complaint; new claims must arise from same t/a or occur as claim in orig’l complaint • New parties – claims must arise from same t/a or occur; new party must have rec’d adeq notice & not be prej & new party knew/should have known that but for a mistake, they would have been named in the original lawsuit.

4. Policy/purpose • Why have discovery? • What’s the good/bad about allowing discovery? • What are the policy tensions in drafting discovery rules (what are the rules drafters trying to balance)

5. The history of discovery • Pre-rules – very limited (if any) discovery (problems with this approach??) • Initial Rules – wide ranging discovery of anything relevant to the subject matter of the claim (problems with this approach??) • Current Rules – automatic disclosure of witnesses/documents/clearly relevant info (insur policies & damage computations) at the start of the lawsuit with a duty to later supplement (problems with this approach???)

6. Automatic Disclosures • Can you refuse to disclose if: • A. Haven’t fully finished investigation; • B. The other side has not met itsdisclosure obligations (I won’t show you mine unless you show me yours)

7. General Scope of Discovery • What Rule defines the general scope of discovery? What does it say about what is generally discoverable?

8. Relevance • Does the evidence have ANY tendency to prove/disprove a fact of consequence (i.e. a fact going to an element of a claim or defense or a fact going to credibility) • -- look to substantive law to find elements of claims/defenses

9. Hearsay, etc • I want to discover what a witness told Mr. X about who had the red light. My opponent objects that this is hearsay and thus inadmissible at trial and b/c it’s inadmissible at trial, it’s not relevant in terms of discovery. Assume opposing counsel is correct and the statement is inadmissible hearsay. Can I still discover what the witness said? Why/why not?

10. Limits to discovery • What are the general limits to discovery stated in R. 26(b)(2) • If you believe discovery requests (e.g. interrogatories) ask for information that the other side is not entitled to have, what should you do? • If your opponent refuses to disclose information you think you are entitled to get, what should you do?

11. Discovery of electronic data • Area of much future potential litigation about what is discoverable, etc. Why?

12. Davis v. Precoat MetalsCB p. 409 • What was the basis of plaintiffs’ underlying claim (why were the suing)? • What will plaintiffs have to prove to prevail on this claim? • How can defendants defeat this claim?

13. Davis cont’d • How does the information sought relate to plaintiffs’ claims? • Any tactical reasons to seek this information?

14. Plaintiffs sought the following information: All information in the control or possession of the defendant that relates in any way to any PreCoat employee’s complaint of discrimination What if

15. Holding/reasoning • What was the holding/reasoning in Davis v. Precoat.

16. Stefan v. Cheney • Explain what is going on in Steffan and identify the contested discovery? • Why is the plaintiff arguing that the requested discovery is impermissible (i.e. not relevant)? • What is the court’s holding/reasoning?

17. Comparing Davis & Stefan If Davis is correctly decided, can Steffan be right? • Are Steffan and Davis consistent (Why/why not?)

18. Stefan hypo • Suppose Stefan is reinstated and again discharged, this time for sexual behavior. He sues and the gov’t again deposes him and asks about instances of sexual conduct. Must he answer? Why/why not?

19. Q 3 p. 412 • Could the defendant in Davis immediately challenge the district court’s ruling? Why/why not? • Why was Stefan an appellate court ruling? • When should you instruct your clients not to answer a question in a deposition? What are the risks if you do so? • How much power rests in the hands of the district court when it comes to discovery?

20. Book hypos – p. 413 • Albert & Barb collide. A sues B alleging negligence. B denies liability. A seeks to discover how much money B has in the bank (b/c he wants to know whether she will be capable of satisfying a damage judgment). • Looking only at whether this information is relevant to proving the negligence claim, is this information relevant and discoverable? • Would your analysis change if there was a punitive damages claim against B? • A also seeks to discover whether B has a liability insur policy and the amount of that policy. Is that relevant to the claim/defense? Is it discoverable? Why?

21. Question 5 [be sure to read 26(a)(1) & 26(b)(1)] • A alleges B “negligently collided” with his car; B denies negligence. A’s lawyer has gotten copies of A’s medical and wage records and has spoken with a number of witnesses. A’s lawyer plans to show B ran a red light, hit A and as a result A lost wages & incurred medical expenses. A witness will testify B ran the red light. • A has a bad driving record and himself has tickets for running red lights; his job situation was iffy and his boss might testify he was about to be fired. What disclosures must A make under 26a1?

22. #5 cont’d • B’s lawyer has interviewed her and knows the name/address of a mechanic who can testify that her car was well maintained. He also has interviewed her boss w/whom she had a major argument just before the wreck. And, there is a bystander who saw the wreck – a vagrant with a long history of minor drug arrests - but he says he thinks B had the green light. Explain how each of these witnesses might have info relevant to the lawsuit. Which ones should B’s lawyer supply under 26a1a?

23. #6 • B told her lawyer she had a violent argument with her boss just before the wreck and was still fuming as she drove. Her lawyer is also debating about whether to use the vagrant’s testimony. Must B disclose her boss and/or the vagrant pursuant to 26(a)(1)? • What if, after initial disclosures, B is served with an interrogatory asking her to supply the name of any witness with info relevant to the p’s claim. Must she now list her boss as such a witness?

24. 2000 Amendments • 2000 Amendments changed the scope of discovery from “matters relevant to the subject matter involved in the pending action” to “matters relevant to the claim or defense of any party”. • What’s the difference between these two standards? • Does the change have an implication for how you draft a complaint?

25. Hypos • P sues the manufacturer of a window washing platform saying it failed to warn him of the proper way to use the platform. Defendant seeks to discover information about whether the p was wearing a safety belt and hard hat. P objects on the ground that the information is not relevant to his claim or a defense because all the experts agree that neither a safety belt nor a hard hat would have mitigated or prevented his injuries. Make the defendant’s relevance argument.

26. Same hypo – cont’d • Plaintiff sends the defendant an interrogatory seeking information about any reported injuries involving the same model platform that were allegedly caused by either the platform’s design or by the failure to warn about the proper use of the platform. Is this request relevant to the plaintiff’s claim (why/why not)? Is it relevant to the subject matter of his claim? (why/why not)?

27. Same hypo – q #3 • Assume plaintiff asks for information relating to any complaints received about the platform that is the subject matter of this lawsuit. What is the defendant’s best response to this discovery request?