Civ
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.
Discovery disputes
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.