Civ
Pro 2 Notes
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.
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.
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.