Req. Disclosures
When are required initial disclosures?
R. 26(a)
Very early in case
At least 30 days before trial
What are depositions?
R. 30 & 31 Deposition (deponent testifies orally under oath, answering q’s that are posed)
What is the standard of discoverability? Explain!
Parties can discover material that is relevant to a claim or defense and proportional to the needs of the case
R. 26 (b) (1) Standard of Discoverability
(1) Not proportional if burden of producing it outweighs the likely benefit (ex. Emails deleted from server – not likely info would help case, v. expensive and difficult. But up to court and lot of discretion there)
(2) Relevant can be broader than admissible to trial
What is a protective order/motion to compel?
(FRCP 26(c)/37(a))
addressed to anyone to trigger judicial oversight
courts granted broad discretion to protect parties from annoyance, embarrassment, oppression, or undue burden or expense
court may also allow only limited discovery on certain issues to see if it will be necessary to move forward on other matters
Does Rule 11 apply to discovery?
Nope!
Check out 26(g) instead
Expert Testimony?
26 (a)(2)
Much later in case
Need to turn over even if other side didn't ask for it
What are interrogatories?
R. 33 Interrogatories
How do you override work product protection? (hint: what two things do you need to show)
(1) substantial need and (2) the information is not otherwise easily available
Some kinds of work product are absolutely protected: mental impression, conclusions, opinions, and legal theories
What are signing/sanctions?
addressed to anyone to police behavior
attorney signature constitutes certification that discovery inquiry is proper
sanctions only obtainable if failure to adhere to discovery request is willful rather than merely negligent
Why protect work product?
Avoid free-rider problem
(example: getting advantage from the paid work of a PI)
Harper sues Brittany for negligence -- asking for repayment for a shoulder injury following a vehicle accident. Brittany disputes the seriousness of the injury. During discovery, Brittany seeks access to any images associated with Harper's private Instagram account that show Harper using his arm (such as by playing Twister).
Should the court require the discovery?
Yes, the information is relevant and not privileged.
What is a Request to Produce?
R. 34 Request to Produce
What are privileged relationships? Why?
privileged relationships include lawyer-client, doctor-patient, priest-penitent, husband-wife
it is believed that encouraging confidence in these relationships more important than allowing full access to this information for litigation purposes
Three ways courts usually become involved in discovery squabble?
(1) Protective Order; responding party asked for a protective order R. 26 (c): asking court to protect you because the discovery request subjects you to undue burden, expense… court has wide discretion—court can deny, limit, etc.
(2) Partial Response; where responding party responds incompletely (ex. answers some interrogatories but objects to others) if party seeking discovery thinks objections are bogus, party seeking discovery will make a motion to compel. Court has to rule on objections
*If court grants that motion to compel R. 37 (a), it is bad to violate that order. There attorney’s can get hit with serious sanctions found in R. 37 (b)(2)*
No Response; party fails completely attend depo, respond to interrogatories…parties seeking discovery does not have to make a motion to compel. Here, you go directly to motion for sanctions R. 37 (d)(1)(a) (very serious, including merit sanctions)
What happens before a scheduling order? (hint: meeting)
R. 26(f) Conference of Parties--Planning for Discovery
Before scheduling order, parties have to meet. Talk about potential discovery issues, future litigation issues…parties must also put together very detailed discovery plan
What to include in required disclosures?
26(a)(1)
Must identify people w/ discoverable info that may use to support your case
Give copies or descriptions of things that you may use to support your case (not info that could hurt your case)
P must give calculation of damages
D must disclosure any insurance
Can you request a medical exam? What is a request for admission?
R. 35 Medical Exam
R. 36 Request for Admission
1. relevance
2. privilege
3. procedural violation
What can courts do when they get involved?
Courts can issue orders and even sanction people
Courts usually make sides certify they have tried to work it out themselves
What are policy justifications for attorney/client privilege?
Hickman v. Taylor
B bought a car from Harp and later sued for breach of warranty - the Harp Car was a lemon. B believes that Harp Car has flaws in its vehicle manufacturing process.
The lawsuit asks for $36,000, the cost of the vehicle. During discovery B requests "all documents related to the development and manufacture of Harp Car's engine and drive train." Harp estimates that the cost to fully comply with the request will be $45,000.
Is the discovery request valid?
Creates a potential problem under the Rule 26(b)(1) proportionality standard because the amount in controversy is less than the cost of the proposed discovery.
What is the purpose of modern discovery?
(1) preservation of relevant information that might not be available at trial
(2) ascertains the issues that are actually in controversy between the parties
(3) allows a party to obtain information that will lead to admissible evidence on issues that are in dispute
Tell me about Hickman v. Taylor (issue and holding) :)
Must opposing counsel demonstrate necessity, justification, or undue prejudice for access to counsel’s written statements, private memoranda, and personal recollections?
Yes. Opposing counsel must demonstrate necessity, justification, or undue prejudice for access to counsel’s written statements, private memoranda, and personal recollections.
Riley filed suit in Federal Court against Harper alleging brain injury caused by Harper's negligence. Harper wants Riley to undergo a mental examination in accordance to Rule 35. Riley agreed to a mental examination on the condition that it be conducted by her counselor who is a non-licensed non-certified mind-spirit therapist (who moonlights as a therapeutic vet). Should this examination be ordered?
No, the examiner is not suitably licensed or certified
Employee Crouch (Plaintiff) sued Corporate Employer (Defendant) for unlawful discriminatory conduct. Following the Rule 26(f) discovery conference, Employee Crouch wanted to depose an officer with knowledge of the Employer's policies for handling internal complaints. How might she proceed?
Name Employer as the deponent in the written notice, and include that information is being sought on internal complaints procedures so Employer can designate the correct official under R. 30(b)(6).