Agenda for 10th Class

1. Agenda for 10th Class • Name plates out • Sanctions handout • Experts

2. Next Class • FRCP 26(g), 30(c)-(d), 37 • Yeazell 508-512 • Handout • Questions to think about / Writing assignment • Yeazell p. 510 Qs 1-5 • Questions on next page

3. Questions on Phillips • 1) In Phillips v Manufacturers Hanover Trust, what rule, if any, did defendant’s counsel violate? Be sure to consider FRCP 11, 26(g), 30(c),30(d), 37(a)(4), 37(b) and 37(d) and explain why each rule was or was not violated. Note that the Rules have been amended several times since 1994, so the reasoning in the opinion may no longer be valid. • 2) For each rule that you think the defendant’s lawyer violated, what is the sanction? Are sanctions mandatory or discretionary? • 3) Did the magistrate judge make the right decision in Phillips v Manufacturers Hanover Trust? If you were a law clerk to Judge Francis what would you have advised him to do? • 4) What, if anything, should the plaintiff’s lawyer in Phillips v Manufacturers Hanover Trust have done differently? • 5) If the plaintiff’s lawyer asked the district court judge to review the magistrate judge’s decision, is the district court judge likely to affirm the magistrate judge’s decision

4. 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” • Policies • Not to discourage writing • To encourage each side to expend effort gathering effort • Adversary system • Somewhat in tension with policies behind discovery • Rule is narrower than policies behind doctrine • Restricted to “documents and tangible things.” • Doctrine was created before rule

5. 3 Kinds of Experts Expert who will testify at 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 Experts not hired in anticipation of trial are 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) 5

6. Expert Questions • Briefly summarize Thompson, Chiquita, and Stalnaker • Incorporate into your summaries of Thompson and Chiquita answers to p. 502 question 1 • Incorporate into your summary of Stalnaker an answer to p. 506 question 1 • 499ff Qs 1-4; 502ff Qs 2-3; 506ff Qs 2, 4b • 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?