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Civil Procedure II Outline - Part 16

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<< Part 15 | Part 17 >>

The Scope of Discovery Segment 12

cc. 26b1 is sweeping, virtually creating a presumption of discoverability

  1. Unless otherwise limited by court order the scope of discovery, the scope of discovery is as follows; parties may obtain discovery regarding any non privileged matter that is relevant to any parties claims 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 pirates 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.
  2. Rule 26b1 targets only information that is non privileged,
    1. Privileged information is usually communication made in confidence during the course and in furtherance of a relationship.
      1. This protection is not self executing, when a party wishes to resist discovery by invoking a privilege rule 26b5 requires that it make the claim expressly and describe the nature of the documents, communications or tangible things not produced or disclosed, without revealing information itself privileged or protected will enable other parties to seese the claim.
  3. That is Relevant to any party's claim or defense.
  4. That is proportional to the needs of the case
    1. 26b1 lists of multiple metric in the proportionally calculus necessarily makes answers to questions like this fact dependent and ad hoc if not wholly unpredictable.

dd. 26b2c

  1. The court may limit or deny discovery sua sponte or upon motion when such discovery sought is unreasonably cumulative or duplicative or can be obtained from some other source that is more convent, less burdensome, or less expensive.

ee. 26b3ciii

  1. The court may limit discovery when “the burden or expense of the proposed discovery outweighs its likely benefit.

ff. Notes After

  1. The party seeking discovery has the burden of demonstrating relance but rule 26b1 does not place a burden on the party to address all proportionality considerations.
    1. A key factor in the disportionality analysis is the burden or expense of production which are issues that the party resisting discovery is in the best position to determine.
  2. That need not be admissible
    1. Hearsay- an out of court statement that in many cases is not admissible at trial to prove the truth of the matter states.
  3. Lawyer Client Privilege
    1. May be invoked with respect to
      1. A communication
      2. Made between privileged persons
        1. Privileged persons are the client, the clients lawyer, agent of either who facilitate communications between them, and agents of the lawyer who facilitate the representation.
      3. In confidence
      4. For the purpose of obtaining or providing legal assistance for the client.
    2. The privilege applies only to the communication between lawyer and client and not to the facts that are communicated.
      1. If a client runs a red light the communication is privileged but the client must still admit the fact that he ran the light if he is asked in a written interrogatory or in a question during his testimony at a deposition or trial.
    3. Corporate Lawyer Client Privilege
      1. Some Courts limit the corporate lawyer client privilege to communications made by and to a “control group” of employees in a position to control or take a substantial part in deciding corporate action in response to legal advice.
        1. Federal court overruled saying that it was to narrow
        2. Federal courts now go by a fact specific basis to determine what corporate communications are privileged.
  4. Work Product Protection
    1. Reasons for work product production
      1. Adversary relationship.
      2. Protect the value that the attorney added himself not the facts.
    2. 26b3
      1. (3) Trial preparation materials
        1. (a) 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.
          1. But subject to rule 26b4 those materials may be discovered if
            1. They are otherwise discoverable under rule 26b1 and
            2. 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.
        2. 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.
      2. B5
        1. Work product is an objection that you must expressly make, describing the study in such a manner that without revealing the protected information will enable your adversaries to assess your claim
      3. Prepared by whom.
        1. The rule protects work products prepared by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer or agent.
      4. Anticipation of litigation
        1. Rule 26b3 Extends work product protection only to matter that is prepared in anticipation of litigation or for trial. This condition is the key to identifying work products.
          1. What is ligation
            1. Litigation has not proven hard to define; it includes any adversary court or administrative proceeding including a civil action, criminal case, grandy jury proceeding and administrative hearing.
          2. Must litigation have commenced
            1. No see below
          3. What is anticipation of litigation
            1. Several Different Approaches
            2. Ad Hoc
              1. Only that where, as here lawyers claim they advised clients regarding the risks of potential litigation, the absence of a specific claim. Represents just one factor that courts should consider in determining whether the work-product privilege applies.
            3. Specific Claim approach
              1. The documents must have been prepared with a specific claim supported by concrete fact which would likely lead to litigation in mind.
            4. Primary Purpose Approach
              1. The primary motivation for preparing the putative work product must assist in preparing for possible litigation. THis motive is shown circumstantially by how the document is labeled, whether a lawyer participated in the preparation, whether the document comments on litigation and whether it has an ordinary business purpose. Documents prepared for an ordinary business purpose or to fulfill regulatory requirements therefore do not usually qualify as work products.
        2. Overcoming work product protection
          1. The court stressed that the plaintiff had not made a sufficient showing to overcome the work product protection for
          2. Rule 26b3
            1. Normally the discovere would need to make that showing by filing an affidavit in support of a motion to compel discovery.
              1. The discovere must show “substantial need for the materials to prepare its case” 26b3aii
              2. A motion to compel discovery that is backed by an affidavit that merely alleges a need for the materials to help prepare examine witnesses is doomed for failure.
            2. Even when the requisite showing of substantial need and undue hardship has been made “the court shall protect against disclosure of the mental impression, conclusion, opinions, or legal theories of any attorney or other representative of a party concerning litigation.
              1. Some courts allow a redact of such impression from the memo before disclosing the remainder upon a showing of need and hardship
Discovery Tools Segment 13

gg. 26(a)

  1. Both parties will be required without awaiting any formal discovery requests to exchange information that they may use to support their claims or defenses including names addresses and telephone number of fact witnesses copes or descriptions of documents and materials underlying fact witnesses copies or descriptions of documents and materials underlying computations of damages.
    1. These are required disclosures
  2. After required disclosures the parties may also take discretionary discovery using
    1. Depositions
      1. Oral or written examinations of live witnesses under oath before a court reporter
    2. Interrogatories
      1. Written questions that must be answered
    3. Document productions requests, Physical and mental examinations and requests for admissions.
  3. Changes in 1993
    1. “Self executing discovery rule.
      1. This rule insulted a regime of required initial disclosures of the core information in a lawsuit as well as additional disclosures on the eve of trial. This regime was intended to accelerate and to some degree defang discovery.
  4. Changes in 2000
    1. The required initial disclosure of some categories of information was mandated for all actions except a small set of relatively simple actions that were expressly exempted by rule 26(a)(1)(b) That is a list of the rules.

hh. 26(f)

  1. Requires the parties to meet and confer to discuss a discovery plan at least 21 days before a scheduling conference is held or a scheduling order is due under rule 16b
    1. That order is due within ninety days after any defendant has been served with the complaint or sixty days after any defendant has appeared. 16b
      1. The disclosure are due within 14 days after the meet and confer by the parties under rule 26 f
        1. Nice little table on page 827

ii. Defendants options to avoid required disclosures

  1. 26a1c states that a party “must make initial disclosure” within the time it provides unless one of the delays buttons is pressed below
    1. Obtaining a stipulation from the other parties
    2. Can object
      1. The objections must be stated in the proposed discovery plan. When it is, the court will then rule on the objections and “must set the time for disclosure.
    3. Move for a court order

jj. What must be initially disclosed

  1. 26b1
    1. Information that the disclosing party may use to support its claims or defenses.

kk. Other required disclosures.

  1. 26a2
    1. Also requires timely disclosure of expert trial witness and their reports at least 90 days before trial
  2. 26a3
    1. Adds the requirement that at least thirty days before trial parties make mutual pretrial disclosures by exchanging lots of witnesses they expect to call and exhibits they intend to introduce at trial. These disclosure requirements were already widely imposed ad hoc by pretrial orders in many cases and they have been uncontroversial.

ll. Sanction for failure to give required disclosure.

  1. Rule 37ca provides a self executing sanction with the need for a motion against a party who fails to make a required disclosure without substantial justification. The party is precluded from using the undisclosed evidence or witness
  2. The court also, on motion, imposed additional sanctions.

mm. Discovery Sequencing and interrogatories

  1. To use interrogatories first to collect and identify evidence,
  2. To use request for document production to collect the identified written evidence or electronically stored information and them
  3. Armed with that evidence, to use depositions to collect spontaneous evidence from witnesses and parties, often leaving the key witnesses until last.
    1. Interrogatory Definitions.
      1. Document means any writing drawing graph chart, photographs electronically stored information or other data compilation from which information can be obtained, translated, if necessary by the person answering these interrogatories through detection devices into reasonably usable form.
        1. A draft or non-identical copy is a separate document within the meaning of this term
      2. Identify
        1. When referring to a person , identity means to give, to the extent known, the person's full name, present or last known address, home telephone, present or last known place of employment. And business telephone. ONce a person has been identified in accordance with this subparagraph only the name of the person needs be listed in response to subsequent discovery requesting the identification of that person.
    2. Thought of as continuing interrogatories
      1. Requiring you to answer by supplemental answer, setting forth any information within the scope of your interrogatories as may be acquired by you, your agents, attorneys, or representatives following your original answer.
  4. Procedure for interrogatories.
    1. The lawyer seeking discovery prepares and serves a party up to 25 written questions.
    2. The responding party must then answer or object within thirty days; answers are made in writing under oath by the party who signs them; objections are made in writing by the party's lawyer. But the lawyer must also sign a discovery response pursuant to rule 26(g)
      1. Certifying that she has made a reasonable inquiry before submitting the response.
  5. The scope of the answering parties obligation
    1. The duty imposed on a person is the same as a corporation
      1. Rule 33b1b is to “furnish such information as is available to the party
    2. The option to produce business records
      1. If the answer can be found in Toyota's business records and the burden of searching them is no greater for the painter than for Toyota, then it makes them available to the painter in lieu of answering. 33d
  6. Particular objections
    1. While the rules do not expressly make burden an objection, they do make undue burden or expense a basis for an order limiting such discovery.
      1. `26b2ci
      2. 26c1
    2. Rule 33a2 states that an interrogatory is not objectionable just because it asks for an opinion or contention that relates to factor the application of law to fact.
      1. Such contention interrogatories are needed to ascertain how a party will contend that the law applies to the facts come trial.
        1. The rule therefore allows the court to postpone the time for answering contention interrogatories until such discovery has been completed
          1. 33a2
      2. By negative implication on the other hand an interrogatory that calls for a pure legal conclusion or opinion not applicable to the fate of the case is objectionable. The asking party can answer it as readily as the responding party, by looking in the library.
  7. The duty to supplement
    1. Rule 26e does require a person to supplement its answers but only with information that makes its answer materially incomplete or incorrect. If that information has not already otherwise been made known to the other parties. If the information comes out during a deposition of which all parties have notice, the rule does not literally require further supplementation and the discovering parties instructions cannot impose obligations inconsistent with the rules.
  8. Requests for production of documents.
    1. Must describe” with reasonable particularity the document or category of documents you seek and then serve the request on a party, with copies to all other parties. That party must then comply or object in writing within thirty days unless the parties stipulate to a longer time.
    2. The scope of the producings party's obligation.
      1. Target documents and things “in the responding party's possession custody or control”
        1. 34(a)(1)
      2. Producing party to produce documents as they are kept in the usual course of business or to organize and label them to correspond to the categories in the request
        1. 34b
    3. 26e
      1. No party is obliged to give information to other parties if they have not asked for it.
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