Makeup Discovery Discovery scope of discovery Old version

Makeup - Discovery

Discovery

scope of discovery

Old version: 26(b)(1): Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense

NOW: Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

privileges

privilege against self-incrimination

how might the privilege against selfincrimination be relevant in a civil case?

Fed. R. Evid. 501

attorney-client privilege spousal privileges priest-penitent privilege doctor-patient privilege

attorney-client privilege

Restatement (Third) of The Law Governing Lawyers § 68. Attorney–Client Privilege [T]he attorney-client privilege may be invoked as provided in § 86 with respect to: (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client.

why does the attorney-client privilege exist?

your client tells you that he was looking the other way when he drove into the plaintiff your client receives an interrogatory asking whether he said to you that he was looking the other way when he drove into the plaintiff does your client have to answer the interrogatory?

if the interrogatory asks whether your client was looking the other way when he drove into the plaintiff does he have to answer? what if your client says he was not looking the other way on the stand?

MR 3. 3: (a) A lawyer shall not knowingly: (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

MR 1. 2(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

- your client tells you that he was looking the other way when he drove into the plaintiff - subsequently he credibly tells you that when he said he was not actually looking the other way at that moment, he was feeling guilty because he had done so about 20 second before the accident - your client receives an interrogatory asking whether he said to you that he was looking the other way when he drove into the plaintiff - does your client have to answer the interrogatory?

who controls the attorney-client privilege?

corporate attorney-client privilege

work product “privilege”

Hickman v. Taylor (U. S. 1947)

why not attorney-client privilege?

why have the fact work product privilege?

26(b)(3)(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

26(b)(3)(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.

an interrogatory asks, “Whom have you interviewed in connection with this case and did you make any reports, memos, etc. ” may you claim that the information is work -product under 26(b)(3) and/or Hickman?

a witness you interviewed said that your client was looking the other way while he drove into plaintiff you write it up in a witness statement the plaintiff requests the statement in a document request may you claim that it is work product under 26(b)(3) and/or Hickman? if the interrogatory instead asks your client whether he was looking the other way during the accident, may he refuse to answer on the basis of 26(b)(3) and/or Hickman?

the plaintiff serves you with a document request asking for witness statements drafted by a private investigator retained by your client prior to hiring you, when he was worried that he might be sued work product?

would it matter if the plaintiff served you with an interrogatory asking for the substance of the witness statements?

what if the document was instead an unsolicited letter from a witness?

you are being sued for negligence in connection with a car accident the plaintiff serves you with a document request asking for: 1) witness statements taken by your lawyer a year ago – only a few hours after the accident 2) your lawyer’s notes on the interviews with the witnesses can the Work Product Privilege be overcome?

P is going to offer a witness W D thinks that W said something different to P’s lawyer compared to what W will say on the witness stand can D get statements that W made to P’s lawyer?

P is going to testify about the extent of his injuries due to D’s negligence may P request in discovery any surveillance tapes that D may have made of P after the accident?

a witness, X, who is friendly to the D, was interviewed by P’s attorney and a statement was drawn up. is there any way that D can get X’s statement without having to overcome the work-product privilege?

26(b)(3)(C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person’s own previous statement about the action or its subject matter. . A previous statement is either: (i) a written statement that the person has signed or otherwise adopted or approved; or (ii) a contemporaneous stenographic, mechanical, electrical, or other recording — or a transcription of it — that recites substantially verbatim the person’s oral statement.

waiver

mechanism of disclosure & discovery

disclosure FRCP 26(a)(1)

Used to be: obligation to disclose all witnesses “likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings” and all documents and tangible things “in possession custody or control of party that are relevant to disputed facts alleged with particularity in the pleadings”

R 26(a)(1)(A)(i) “the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment”

(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment

Perry Mason brings a surprise witness on the stand during trial. OK?

R 26(a)(3) Pretrial Disclosures. (A) In General. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment: (i) the name and, if not previously provided, the address and telephone number of each witness — separately identifying those the party expects to present and those it may call if the need arises; (ii) the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and (iii) an identification of each document or other exhibit, including summaries of other evidence — separately identifying those items the party expects to offer and those it may offer if the need arises. (B) Time for Pretrial Disclosures; Objections. Unless the court orders otherwise, these disclosures must be made at least 30 days before trial. Within 14 days after they are made, unless the court sets a different time, a party may serve and promptly file a list of the following objections: any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii). An objection not so made — except for one under Federal Rule of Evidence 402 or 403 — is waived unless excused by the court for good cause.

disclosure concerning experts Fed. R. Civ. P. 26(a)(2) & (b)(4)

mechanics of discovery

during discovery it has become clear that D was looking the other way while driving his car P’s lawyer thinks that D would have admitted this allegation if it had been put in P’s complaint what does P’s lawyer do?

Rule 36. Requests for Admission

can an insurer impleaded request an admission from the P, or a P from a co-P?

the P Corp. is suing the D Corp. for violations of antitrust law counsel for the P Corp. wants any documents that the X Corp. might have concerning agreements with the D Corp. to fix the price of widgets what should the counsel for the P Corp. do?

Rule 45. Subpoena

how would counsel for the P Corp. get the same type of documents from the D Corp. ?

Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

P is suing the D Corp. for securities fraud for misrepresenting its loan loss reserves as adequate P’s lawyer wants to find out who at the D Corp. knows how the loan loss reserves were determined what does P’s lawyer do?

Rule 33. Interrogatories to Parties

X was a witness to the car accident that P is suing D for P’s lawyer wants X to answer questions about what he saw, X refuses how does P’s lawyer do so?

Rule 30. Deposition by Oral Examination

during a deposition, opposing counsel asks your client for irrelevant material what do you do? what if she asked for hearsay material that you think will be inadmissible at trial? what if she asked for confidential communications between you and your client? 58

30(d)(3) Motion to Terminate or Limit. (A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.

e-discovery

26(b)(2) Limitations on Frequency and Extent. (A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36. (B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

motions to compel, sanctions

D. . . - did not turn over disclosure materials - made frivolous discovery requests - and illegitimately refused to turn over materials that were within the scope of your discovery requests

26(g) Signing Disclosures and Discovery Requests, Responses, and Objections. (1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signedby at least one attorney of record in the attorney’s own name — or by the party personally, if unrepresented — and must state the signer’s address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and beliefformed after a reasonable inquiry: (A) with respect to a disclosure, it is complete and correct as of the time it is made; and (B) with respect to a discovery request, response, or objection, it is: (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action. . (3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.

Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions (a) Motion for an Order Compelling Disclosure or Discovery. (1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

(b)(2) Sanctions in the District Where the Action Is Pending. (A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent. . . fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party

37(c) Failure to Disclose; to Supplement an Earlier Response, or to Admit. (1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).

protective orders