Civ Pro 2 Notes 10/28/04


With left off in discovery talking about basic cases.  Let’s try to deal with the major Supreme Court cases that relate to discovery.


Schlagenhauf v. Holder


There was an injury where a Greyhound bus collided with a tractor-trailer.  One of the bus passengers was hurt and sued Greyhound, the bus driver, and the owner of the tractor-trailer.  The bus company and trailer company have cross-claims.  The carrier company put in a request for a series of examinations of the bus driver.  The trial court allowed all of the medical exams!  Is this an appropriate use of Rule 35?  We know that we can obtain these sorts of exams when the condition of a party is in controversy.  There is no question that the driver is a party to the lawsuit.  The driver is a defendant to the original lawsuit.  Does it make a difference that the discovery request is coming from another defendant on a cross-claim?  Is the physical condition of the party in controversy?  Usually when we think of this, we think of the condition of the plaintiff who got hurt.  Did the driver put his condition at issue?  The driver admitted in a deposition that he saw the truck’s brake lights go on, but he hit it anyway.


The Supreme Court eventually vacates the ruling.  If anything is at issue, it’s sight.  There isn’t any justification for other kinds of exams.  Why doesn’t the court allow an ophthalmologic exam?  They granted an order vacating all the exams, and an eye exam may be possible, but the evidentiary link must be established in order for this exam to be ordered.


This case isn’t exactly a landmark case: it doesn’t establish a new rule particularly, but it shows that Rule 35 is broader than just a plaintiff’s rule.  Also, it shows that Rule 35 is not a carte blanche to provide any conceivable kind of exam.


Hickman v. Taylor


This is a much more broadly focused case and it establishes some larger issues.  There were some tug boat guys who got killed.  Norman Hickman is one of the guys killed.  There’s this attorney, Fortenbaugh, who is employed by the tug boat company.  This lawyer interviews witnesses to prepare for trial.  He talks to the survivors and other witnesses.  He made notes about what they said.  There is an interrogatory from Hickman to provide the notes from these interviews.  The attorney declines, claiming that the memos are privileged.  But he ends up going to jail for contempt!


Are these documents really privileged?  We’re told that these memos fall outside of attorney-client privilege.  If it’s not privileged, is it relevant?  Yes.  These are the statements of people who would know best what happened.  If it’s not privileged and it’s relevant, you usually get it.  But at the end of the day, they don’t get this.  Why not?  The Court says that it’s not protected from discovery.  But what makes this material special and allows it to be treated specially?  It’s attorney work product.  The information would otherwise be discoverable.


There are two types of information: first, witness statements in some form.  Why aren’t these discoverable?  As to these witnesses, the Court tells us that there may be some way to get this information, but not on these facts.  There was no effort on the part of the requestors to get this information themselves.  They could have just gone out and done these interviews themselves.  They must show some reason why the other attorney’s work should be available to them.  What about the mental impressions of the lawyer as a result of the other witness investigation?  The Court says there is no legitimate purpose served by having this information discoverable.


Rule 26(b)(3) talks about trial preparation and what may or may not be discoverable.  A party may obtain discovery of documents and tangible things otherwise discoverable prepared in the preparation of litigation only upon a showing of substantial need.  If the material is otherwise discoverable and doesn’t relate to experts, and was prepared in anticipation of litigation, then you can’t get discovery of that information unless the discoverer can show some substantial need and there is no reasonably available substitute.  Even then, the court will protect the lawyer’s mental impressions in constructing an order of discovery.  Who does this Rule apply to?  It applies not just to the party’s attorney, but also the party’s consultant or other representative.  If you find great eyewitnesses, you must give up the name of who you found, but you don’t have to give up exactly what they said.  Just because you spent a lot of money finding a witness, you still have to cough up their name.


If someone isn’t a party to a lawsuit, they can obtain a statement that they made previously.  A party might not be able to get this statement, but a non-party can get it for you.


Upjohn Co. v. United States


Who is the client in the corporate context?  The “Control Group Test” protects communications by decision-makers or those who influence them.  Rehnquist says we want to encourage frank communication between attorneys and clients.  We don’t want to just protect the top of the hierarchy.  The Court doesn’t establish a set rule, but it did stop the use of the “Control Test”.  An alternative test is the “Subject Matter Test”, which provides any employee with privilege as long as the matter is within the employee’s performance of their duties.


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