Discov.

Intro

  1. Tools
    1. Depo Rule 30
      1. Oral testi.
      2. Any person, party / nonparty
    2. Interrog. Rule 33
      1. Written quest's by 1 party 2 another party
    3. Prod. of Doc's Rule 34
      1. Get phys'al evid. / entry into land 4 inspection
      2. Only 4 party
      3. Can incl. anything / all med. in which info is stored
    4. Phys'al & Mental Exam
    5. Req. of Adm. Rule 36
      1. One party force another 2 adm. / deny truth
      2. Only 4 party
      3. If not respond, then adm.
      4. Respond by
        1. Adm.
        2. Deny
        3. Stmt of why unable 2 adm. / deny
        4. Obj.
  2. Per. of Discov.
    1. Until Trial
    2. Rule 26)f Mtng
      1. Must have mtng 2 disc. & propose discov. plan
  3. Prob's of Discov. in Complex Cases
    1. Unique 2 Complex
      1. Vol. of materials
      2. Cost
      3. Length of X
      4. Lots of parties
    2. Prob's in All Discov.
      1. Org.
      2. Effectiveness & accuracy
      3. Maintaining confid.

Protective Orders & Doc. Destruction

  1. Protective Order Rule 26)c
    1. Reqt
      1. Motion by party 4 any protective order
      2. Movant tried 2 confer w/o ct. axn in good faith
      3. Good cause shown
    2. Protect Party From
      1. Annoyance,
      2. Embarrassment,
      3. Oppression /
      4. Undue burden of expense
    3. Umbrella Protective Order 4 Complex Cases
      1. Can't discl. stamped confid. doc's unless auth'ed by order
      2. Other party can oppose & say stamped doc. not confid.
      3. Can't use doc's 4 other cases but can 4 rel'ed litig. where prod'er is party
    4. Three Part Test 4 Rule 26)c)7
      1. Est. matter sought 2 B protected is trade secret / other confid. research
      2. Discl. would cause cognizable harm such as comm'l competitive disadv.
      3. Movant showed good cause 4 order by actual showing / specif. inj.
    5. First Amendment & Rule 26)c: Split of Auth.
      1. Third Cir. Good Cause Stand.
        1. Only consid. good cause 4 Rule 26)c
        2. Must not consid. 1st amend. analysis if meet that
      2. First Cir.: Consid. Both Rule 26)c & 1st Amend.
        1. Good cause
        2. Restriction of protective order limited 2 discov. materials
        3. Can't restrict discl. from other sources
      3. Least Restrictive Means: 1st Amend. Analysis
        1. Subst'l govt. int. +
        2. Narrow tailoring
    6. Sanction & Doc. Destruction
      1. Bad faith not req'ed 4 sanction but must have @ least knowing conduct
      2. Remedy 4 destroying doc's
        1. Draw adverse inference
        2. Default
        3. Sanction
        4. Tort of spoilation of evid.

Priv's

  1. Atty Client Priv.
    1. Reqt's
      1. Protect from discl. of confid. comm'n btwn client & atty
      2. Only if sought 2 B client
      3. Only if atty @ bar & acted as atty 4 comm'n
      4. No strangers around @ comm'n
      5. Not 2 commit crime / tort
      6. Client didn't waive priv.
    2. Types of Comm'n
      1. Oral
      2. Correspondence
      3. Any doc's revealing client's motive, strategy, etc.
    3. Purpose
      1. Promote frank discl.
      2. Protect pvcy
  2. Work Prod. Doc.
    1. Reqt
      1. Only doc's prep'ed in anticipation of trial
      2. Reveals strategy
    2. Opinion
      1. Reflects atty's mental impression, concl. / legal theory
      2. Abst'ly shielded in some cir. v. discov'able when mental impression is issue in other cir.
    3. Non-opinion
      1. Qualified protection
      2. Discl'ed if good cause of subst'l need +
      3. Inability w/o undue hardship 2 get material by other means
    4. Purpose
      1. Preserve pvcy of atty
      2. Prevent free riding by opponent
  3. Waiver of Priv's
    1. Methods
      1. Waive by failing 2 assert
      2. Intentional discl. 2 3rd parties
      3. Inadvertent discl. 2 3rd parties
      4. Injection of issues
      5. Eavesdropping
        1. Classical waiver said waived
        2. Fairness said waived by looking @
          1. Effect on uninhibited consultation on atty & client of not allowing priv. +
          2. Ability of parties 2 protect against discl.
    2. Views
      1. Classical waiver doc.
        1. Fact of discl. alone destroyes
        2. Waiver extends 2 entire world
      2. Fairness Analysis
        1. Limited waiver by looking @ circ. of waiver
    3. Exceptions 2 Waiver
      1. Ct ordered discl. of priv'ed items
      2. De facto compulsion by ct. b/c 2 many doc's in short X
      3. Common legal int. exception 4 work prod., not atty client priv.
        1. Only co-parties have common int. by narrow view
        2. Two parties who anticipate litig. from common adversary on same issue have common int. by broad view
    4. Rule 26)a)2
      1. If show work prod. 2 expert, must B prod'ed 2 other side

This material is copyrighted by the author. Use of the material for profit is expressly prohibited without the written permission from the author.

Ms. Haeji Hong

May 4, 1998

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