Agenda for 10th Class

1. Agenda for 10th Class • Admin • Handouts • Name plates out • Lunch today • Meet outside Rm. 433 (Faculty Lounge) at 11:45 • Privacy • Work Product • Introduction to Experts

2. Next Class • FRCP 26(a)(2), (b)(4), (c)(1) • Yeazell 497-503 • Questions we will discuss in class / writing assignment : • Briefly summarize Thompson and Chiquita • Incorporate into your summaries of Thompson and Chiquita answers to p. 502 question 1 • 499ff Qs 1-4; 502ff Qs 2-3. Note that 503 Q3 should refer to 26(b)(4)(B), not 26(a)(2)(B). • 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? • Optional. Glannon 415-17, 420-21, 432-34 • Remember to read A Civil Action through p. 263 for Monday • Questions on webpage

3. Review of Discovery Scope • FRCP 26(b)(1). Any non-privileged matter relevant to claim or defense is discoverable • Privileges – attorney-client, doctor-patient, self-incrimination… • Relevance – Information is relevant if it helps prove or disprove a claim or defense • Depends on substantive law • Other limitations • Special rules for work product and experts • Cost outweighs likely benefit. 26(b)(2)(C)(iii) • Annoying, embarrassing, oppressive. 26(c)(1) • Court may issue protective order. 26(c)(1)

4. Privacy • Briefly summarize Stalnaker • Pp. 506-7 Qs 2, 4b

5. 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” • Questions • Briefly summarize Hickman • What discovery device, if any, did Fortenbaugh use to secure statements from the survivors? • 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). • Pp. 488ff Q1 • PP. 495ff Q1, 3, 4b-d, 5

6. 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) 6