Civ
Pro 2 Notes
We
left off talking about Rule 26.
Basically, anything that’s not privileged and is related to claims or
defenses is discoverable.
Privilege
Say
Albert sues Barbara for an intentional tort.
Let’s say Barbara gets asked in a deposition whether Barbara
intentionally hit Albert. Is it
relevant? Of course. Is this information privileged? Is there a privilege that might be
raised? Sure, she could plead the Fifth
Amendment. But this is a civil
suit. She’s not being tried of
anything. Why can she use that
privilege? Even though this is a civil
case, what is said in the civil case is a statement that can be used in other
actions, civil or criminal, against Barbara.
This is precisely where you
want to raise the Fifth Amendment to avoid offering up free incriminating evidence
to the state.
Let’s
say Albert is claiming damages for emotional distress. Let’s say Barbara’s counsel wants to question
Albert’s doctor about his emotional state.
It’s relevant. Though usually
there is a confidential relationship between doctor and patient, this will probably
be an exception to that privilege.
Albert put his own health at issue: he can’t hide behind the privilege
and not have to answer questions.
Disclosures
Rule
26(a) deals with disclosures. You must
disclose the contact information of people who might have useful information. You must disclose any key documents you’re
using to support your claim or defense, such as the contract in a contract
dispute or a codicil in a will dispute.
You must show a calculation of your damages. You also have to provide copies of any
insurance agreements, even though such agreements aren’t typically admissible
as evidence. All of this stuff must be
coughed up within 14 days of the Rule 26(f) conference. Date counting is very important! Prior to the 2000 revisions, the disclosure
Rule was optional, and virtually every District Court opted out of enforcing
this Rule. Now it’s mandatory and it
actually plays a role in answers questions of what is and is not properly disclosable at the start of a lawsuit.
Let’s
say that Albert has medical records that will support his injuries and damages. He has wage statements which are used to
support claims of lost wages. He has
information that he was about to be fired from his job. He has a poor driving record. He probably has to fork over both the medical
records and the wage statements. The
witness must be mentioned if he will be used.
How about Barbara? She has an
insurance policy. She has a mechanic and
a boss. She had a fight with her boss on
the way to work. There is also another
eyewitness who will claim that Albert is at fault. But that eyewitness has substance abuse issues. Who and what do we disclose? Barbara must disclose her insurance
policy. The mechanic might be a good
witness to claim that the car was in good working order. We don’t want to disclose the boss. But what about the drunk witness? We’re not sure whether we want to use that
witness or not. If you’re going to use
the witness, you must disclose the witness.
Are the things that we don’t disclose not discoverable? They may be discoverable even if it’s not
necessary to disclose them.
Say
your client is a used-car salesman. The
customer thinks she’s made a deal, but the salesman doesn’t agree. The customer sues for breach of contract. What disclosures would we have to make? We wouldn’t have to disclose anything, but
maybe we would say that the salesman himself is a person with knowledge of
claims and defenses. You could also list
yourself as a person with knowledge of the claims and defenses. So disclosures are mandatory, but they may
not create any burden in a particular case.
On the other hand, what does the plaintiff have to disclose? The plaintiff would have to disclose some
kind of damage computation.