Civ Pro 2 Notes 10/20/04


We left off talking about Rule 26.Basically, anything thatís not privileged and is related to claims or defenses is discoverable.




Say Albert sues Barbara for an intentional tort.Letís 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.Sheís 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.


Letís say Albert is claiming damages for emotional distress.Letís say Barbaraís counsel wants to question Albertís doctor about his emotional state.Itís 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 canít hide behind the privilege and not have to answer questions.




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 youíre 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 arenít 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 itís mandatory and it actually plays a role in answers questions of what is and is not properly disclosable at the start of a lawsuit.


Letís 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 donít want to disclose the boss.But what about the drunk witness?Weíre not sure whether we want to use that witness or not.If youíre going to use the witness, you must disclose the witness.Are the things that we donít disclose not discoverable?They may be discoverable even if itís not necessary to disclose them.


Say your client is a used-car salesman.The customer thinks sheís made a deal, but the salesman doesnít agree.The customer sues for breach of contract.What disclosures would we have to make?We wouldnít 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.


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