Civ
Pro 2 Notes
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.
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.