Civ Pro 2 Notes 10/15/04


Discovery – Rules 26-37


Discovery is the method by which a party to a lawsuit, or other potential parties, obtain information and preserve it for trial.  There are lots and lots of rules with lots of detail.  The discovery process is one of the most important innovations of the Federal Rules.  Discovery includes rules related to disclosures, requests for production, depositions, interrogatories, requests for admissions, and requests for mental or physical exams.   Rule 37 is the sanction motion, used to get people to comply with the rules of discovery.


In 2000, we had our last series of changes to the Rules related to discovery.  They used to relate the scope of discovery to the “subject matter” of the action, but that was seen as too broad.  The Rules were changed to indicate that the scope of discovery should be defined to claims and defenses as served in the pleadings.  The intent is to limit discovery.  Some said that these amendments wouldn’t lead to much change, and experience has shown that they were basically right.


Davis v. Precoat Metals


This case takes place in the Northern District of Illinois, and a magistrate judge is writing the opinion.  These judges handle a lot of discovery matters.  In this case, African-American and Latino workers sue this company for Title VII violations.  They complain that they were discriminated against and that they experienced a hostile work environment.  What information do the plaintiffs want?  They are trying to get information about other employees’ complaints.  This case comes up before the court on a motion to compel under Rule 37.  Under Rule 26(b), parties may obtain discovery under any matter not privileged that is relevant to the claim or defense.  Are other people’s complaints relevant to these plaintiffs’ claims?  The key is that to have a hostile work environment, it must be widespread.  So if there are other complaints, it tends to show that there is widespread hostility.  This is what the Rule was designed to bring in as discoverable!  What would have happened under the old “subject matter” Rule?  It would have been the same, and it’s hard to see what the big change is in practice.  In the end, the complaints are deemed properly discoverable.


Steffan v. Cheney


Steffan was “constructively discharged” from the Navy for proclaiming himself gay.  What’s the discovery problem?  The Navy was deposing him and wanted to know if he had engaged in homosexual conduct while he was a midshipman.  Steffan refused to answer on Fifth Amendment grounds (which you can do in a civil matter as well as a criminal matter).  What does the Navy do?  They file a motion to compel Steffan to answer.  They also file a request for sanctions (including simply dismissing the case).  Steffan argues that the questions that he’s being asked are not relevant.  The district court judge doesn’t buy it.  Steffan refuses to answer, and the case is dismissed.  Then he appeals to the D.C. Circuit.  The only reason there is a right to appeal on this discovery issue is that he’s been poured out of court entirely.  He appeals his dismissal on the grounds that the discovery ruling and sanction were wrong.  Compare this to the previous case: there was no appeal of the discovery ruling until the entire case is finished, at which point the standard for review is whether the discovery ruling caused you to lose the case.  So most action on discovery is at the district court level.


The Court of Appeals says that the question is not relevant.  The original administrative proceeding was based only on his statements and not his conduct.  The Rule here says that discovery is relevant if it relates to claims or defenses.  Steffan claimed that he was discharged because he said he was gay, not because of any conduct.  Does that make sense?  Are they splitting hairs here?  They take a very narrow view of the “claims or defenses” standard.  Evidence as to discovery is a case-specific issue, and that’s why there is so much litigation over discovery disputes: there is so much to work with.  Is this good policy?  It drives up the cost of litigation because discovery is, by far, the most expensive part of the lawsuit.  It can give one side a strategic advantage in the lawsuit.


A hypothetical


We have Albert and Barbara.  Albert sues Barbara for negligence.  Albert wants to discover how much money Barbara has.  Can he do that?  No, because it’s not relevant to whether she was negligent.  The claim is for negligence, and the amount of money that the person you’ve sued has to pay you if you win is not one of the elements of negligence and is thus not discoverable.  You do want to find out how much money people have.  What if your claim is for an intentional tort?  Because punitive damages are part of the law that goes along with the intentional tort and part of the recovery that you request, courts will find that how much money the other person has is relevant as to punitive damages.  This is why when you sue a company for an intentional tort you get to find out how much the company is worth: you craft a punitive damages award that will hurt them.


What if the defendant is insured and you have a simple negligence action?  If I can’t find out how much money you have in the bank, why can I get your insurance coverage information?  There’s actually a Rule, 26(a)(1)(D), that says you are required to disclose whether you’re carrying insurance.  It’s not because it’s relevant to the claim or defense, but rather it’s so integral to this lawsuit that we force you to disgorge the information as soon as the lawsuit is filed.


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