Pro 2 Notes
Let’s finish discovery. There are three main points to take away from this material. (1) What is discoverable? (2) What tools do you use to get those things that are discoverable? (3) What about disputes?
We start with the question of relevance. If it’s relevant, you’ll basically usually be able to get the information, even if it wouldn’t be admissible evidence. Let’s say it’s not relevant. Then you have to ask whether it’s nonetheless discoverable because of an explicit Rule, for example, insurance policies under the disclosure requirement. You’re required to disclose insurance policies no matter what. There aren’t very many exceptions like that, but you must note them. But most things that are discoverable are relevant. Say something is relevant. Is it privileged? If yes, it is privileged, then you have to consider whether the privileged has been waived. That’s a matter of the law of evidence. But the easiest example as to waiver is attorney-client privilege, where there mustn’t be third parties present for the communication to be confidential. The privilege must be waived if there are other people around. If the privilege hasn’t been waived, then you can’t get the info. If the privilege has been waived, then we rejoin the “main stream”.
If the information is not privileged, we must ask if it’s work product. And that’s the same question you must ask when you’re dealing with a waived privilege. What’s the difference between the stuff protected by attorney-client privilege as opposed to what’s protected as work product? If it’s not work product, then you can get it. If it is work product, then you have to ask the Hickman questions about whether you can overcome that protection. You use the Rule on trial preparation that defines the different burdens that must be met. If you can’t overcome the protection, you can’t get stuff. If you can overcome protection, then we have to ask whether the information is from a testifying expert. If they’re not a testifying expert, you must ask the “hardship” question: is there some other relevant need or hardship that lets you get the information? If they are a testifying expert, then you can get the report and take a deposition.
Remember that this all starts with Rule 26. Mark up the Rules where they relate to the questions that we’ve focused on.
We can get protective orders that can prevent you from having to disclose information. There are Rule 26(g) sanctions, big sanctions, motions to compel, and of course the right to appeal. But when will the right to appeal kick in? It will frequently be way too late. At the core of discovery is the fear of abuse. There are three typical discovery abuse problems.
There may be too little discovery (or the “stonewall position”). You’ll encounter a person who doesn’t want to disclose information even if it is explicit required. People don’t want to disclose stuff that would be bad for your client, but you have no choice under the Rules. If a proper request is made for relevant, non-privileged stuff, you must cough it up. A mandatory discovery conference may be required under Rule 26(f). Initial disclosures under Rule 26(a) are designed to solve the problem of too little discovery. There are certain categories of information you must give up, period.
Next, there is the problem of too much discovery. Sometimes millions of pieces of paper are disclosed. But that may or may not be responsive. There can be an ethical question here. There are ways to control this: under the general Rule 26(b), you can limit the scope of a discovery request. There are also limitations in Rules 30 and 33 on depositions and interrogatories. There are compliance Rules in 26(g), and you can also get a protective order under Rule 26(c) to prevent having to respond. By Rule 26(g), every document you sign is signed in a “Rule 11” fashion. You certify that what you’ve done is complete and in good faith. You can also get motions to compel under Rule 37. It also provides other specific “tiers” of sanctions under Rule 37(b)(2). These become the “big sanctions”. Facts can be deemed established: even things that aren’t true! Evidence can be banned. Pleadings can be stricken. You can be held in contempt. Finally, there may be attorney fees and expenses awarded regarding the discovery at issue.
The exam will be based on pending real cases. But there probably won’t be a pending case that deals solely with a discovery issue. Fairman has also used short-answer, problem-type questions to test discovery. There should be old exams on file now.