Agenda for 7th Class

1. Agenda for 7th Class • Admin • Slide handouts • Name plates out • Finish 1995 Exam Q • Discovery • Intro & Scope • Depositions • Relevance • Intro to • Work Product • Experts

2. Assignment for Next Class I • Work Product • FRCP 26(b)(3), • Yeazell 495-501 • (WG7) Briefly summarize Hickman. In summarizing Hickman, make sure you understand the three different categories of information that were sought in discovery. Also, make sure you understand what discovery device, if any, Fortenbaugh used to secure statements from the survivors. • (WG6) If Hickman were decided today under FRCP 26(b)(3), would the result be any different? • (WG5) If petitioner sent the tug owners interrogatories requesting detailed summaries of any witness statements, would such discovery be barred by the reasoning in Hickman? Would it be barred by FRCP 26(b)(3). • Optional. Glannon 413-16, 419-20, 429-32

3. Assignment for Next Class II • Experts • FRCP 26(a)(2), (b)(4), (c)(1) • Yeazell 501-7 • Blackboard Questions on Experts • Briefly summarize Thompson and Chiquita. Make sure your summary includes what information was sought, what discovery device was used, and the basis for the respondent’s resistance to discovery. (WG4). • In Thompson, how would you argue that Dr. Lucas was not an expert “retained or specially employed to provide expert testimony” 26(b)(4)(D). Would that change the outcome and/or reasoning in the case? (WG3) • How would you argue that Chiquita was wrongly decided as a matter of textual interpretation and/or policy? (WG2) • Suppose plaintiff has lung cancer which he thinks might have been caused by exposure to asbestos. Plaintiff’s lawyer has a doctor extract 10 lung samples, which she then sends to 10 pathologists. 9 say the lung cancer was caused by smoking, but the 10th says it was caused by asbestos. The lawyer discloses the 10th pathologist as one who will testify at trial, but says nothing about the other 9 to the defendant. Can defendant’s lawyer find out that plaintiff consulted 10 pathologists? Can she find out their identities? Can she depose the other 9? Why is this important? (WG1) • Optional. Glannon 416-18, 421-22, 432-34

4. Review of Relation Back • Relevant only if statute of limitations has run out between filing of original complaint and filing of amended complaint • 15(c)(1)(B). If not changing the party: same transaction or occurrence • 15(c)(1)(c). If changing party: 3 part test • Technically, relation-back should be a summary judgment issue • Defendant argues for SJ based on statute of limitations • Plaintiff argues no SJ, because of relation back • In practice, parties argue and judges consider relation back at time of amendment • If statute of limitations has run out, amendment allowed only if • 15(a) analysis satisfied --- timing, fault, prejudice • AND the amendment relates back under 15(c) • If statute of limitations has run out, amendment denied if • 15(a) analysis NOT satisfied OR no relation back • Judge may rely on EITHER 15(a) or 15(c) to deny amendment • May ignore 15(a) or 15(c), if other points toward denial

5. 1995 Exam Q

6. Discovery • Biggest innovation of 20th century procedure • Costs and benefits • Enormously expensive, time consuming, intrusive • Improves accuracy and thus enhances justice, Promotes settlement • Main methods • Depositions, requests for documents (including emails) • Largely unsupervised • Lawyers make requests directly to opposing counsel • Judge’s permission not generally required • Lawyers respond directly to opposing counsel • Judge does not ordinarily see • Lawyers can bring problems to judge’s attention • Motions to compel, motions to protect, motions for sanctions • But judges don’t like to be involved • Often magistrate judges handle • Discovery does not preclude other means of investigation

7. Discovery & Disclosure • Discovery ordinarily requires request by one party • Request for documents. Rule 34 • Request for Deposition. Rule 30 • Interrogatories. Rule 33 • Parties need to share some information even without request • Called “disclosure.” • 26(a)(1). Initial disclosures • Information about witnesses and documents that plan to use later in litigation • 26(a)(2). Expert disclosures --- will discuss in next class • 26(a)(3). Pretrial disclosures • Witnesses and evidence that will use at trial • In general • Disclosures are for information favorable to party disclosing • Discovery is tool to uncover information favorable to party requesting it • Course will focus on discovery, not disclosure

8. Discovery: Scope • FRCP 26(b)(1). Any non-privileged matter relevant to claim or defense • Privileges – attorney-client, doctor-patient, self-incrimination • Relevance – Information is relevant if it helps prove or disprove a claim or defense • Need not be determinative • Hit and run accident. Plaintiff says offending car was yellow. Fact that defendant owns yellow car is relevant • Sufficient that reasonably calculated to lead to admissible evidence • Limitations • Proportionality. 26(b)(1) • Amount at stake, relative access to info, resources, importance to merits, burden/expense versus benefit • Privilege. 26(b)(1) • Special rules for work product and experts. 26(b)(3), (b)(4). • Annoying, embarrassing, oppressive. 26(c)(1) • Court may issue protective order. 26(c)(1)

9. Discovery: Depositions • Much like oral testimony at trial • Deponent sworn, opposing counsel present, court reporter transcribes • Lawyer asks questions, deponent must answer • No judge • Only depose witnesses controlled by or friendly to opposing side • Don’t need discovery to get info from own side or friendly witnesses • Deposition is expensive and other lawyer present • Only supposed to instruct deponent not to answer for 3 reasons. FRCP 30(c)(2) • To protect privilege • To enforce court ordered limitation discovery • To made motion to court under FRCP 30(d)(3) • Otherwise, can object to question (e.g. irrelevant, hearsay, embarrassing, duplicative), but deponent must answer • But if question is really improper, is opposing side likely to complain to judge?

10. Questions on Discovery • Briefly summarize Favale, Wagoner, Rengifo • For each case, your summary should include • What information was requested • What discovery device was used to request the information • On what grounds (e.g. section of the FRCP) the request was challenged

11. Questions on Discovery • Suppose a woman sues her employer claiming a hostile environment, because her supervisor pressured female employees to sleep with him, either through promises of promotion or favorable treatment at work, or through threats of adverse job action. Note that if the supervisor slept with female employees consensually without pressure or work-related incentives or rewards, that would not be evidence of a hostile work environment. In answering the following questions, consider arguments you can make based on FRCP 26(b)(1), (b)(2), or (c). Think of arguments for both sides. • May the plaintiff’s attorney depose other female workers at the same job site and ask them if they slept with the supervisor? • May the plaintiff’s attorney depose other female workers at the same job site and ask them to list all the people they had slept with in the last five years? • Can you think of a question more directly targeted at uncovering evidence of a hostile environment? If so, is the plaintiff’s attorney required to ask this more targeted question?

12. Work Product • Work Product 26(b)(3) • No discovery of “documents and tangible things prepared in anticipation of litigation or for trial … [unless] substantial need” • Designed to protect lawyers notes from discovery • But maybe broader?

13. 3 Kinds of Experts Expert who will testify at trial and hired in anticipation of litigation or to prepare for trial Heightened discovery FRCP 26(a)(2)(A). Disclosure of name of testifying expert FRCP 26(a)(2)(B). Testifying expert must prepare report and report must be disclosed FRCP 26(b)(4)(A). Opposing party may depose testifying expert Non-testifying expert, hired in anticipation of litigation or to prepare for trial Treated like other work product FRCP 26(b)(4)(D). Non-testifying expert, hired in anticipation of litigation or to prepare for trial, is shielded from discovery Unless “exceptional circumstances” 26(b)(4)(D)(ii) Experts not hired in anticipation of trial Subject to discovery like ordinary witnesses E.g. engineer who designed product which may be defective; doctor who examined patient for treatment (not for litigation purposes) Disclosure of facts and opinions, 26(a)(2)(C) But not as extensive disclosure as required of testifying experts 13