Discovery

Charact's

  1. Unusual b/c atty's do it but jud'ly sanctioned
  2. Goals of Discov.
    1. To obtain info nec. 4 trial
    2. Strategically, get info 4
      1. Dispositive motions like sum jgmt
      2. Freeze opponents use
      3. Preserve evid. 4 trial
      4. Delay, harass, attrition
  3. Devices
    1. Deposition: Oral (3rd party can B subj.)
    2. Interrog.: Written (only parties)
    3. Prod. Doc's (3rd party can B subj.)
    4. Phys. & Mental Exam (only parties)
    5. Admission of Truthfulness (only parties)
  4. Rules
    1. Rule 26)b 4 Scope & Limits
      1. Non-priv'ed matters
      2. Relev. 2 subj. matter in pending axn
      3. Not just admissible stuff but also rsbly calc'ed 2 lead 2 admissible evid.
      4. So in Blank v. Sullivan & Cromwell (handout, sex harass case), want 2 know pattern of discrim.
    2. Rule 30: Deposition
      1. Can B anybody, not just party
      2. Look over subsection c & d on how it's conducted
      3. When obj., still go on
      4. Only not ans. if žd)1
        1. Nec. 2 preserve priv.
        2. Enforce limitation on evid.
        3. Present motion under parag. 3
    3. Rule 35: Phys. & Mental Exam
      1. Only device that has narrower relv. stand.
      2. Only if good cause & only 2 party
  5. Exceptions 2 Discov.
    1. Priv.
      1. Goal 2 encourage free COMMUNICATION: not protect facts (Hickman, p. 579)
      2. Det'ed by state law in Erie cases by Rule 501(p. 238 supp) & by Cong. 4 fed. stuff
        1. Atty client
        2. Marital
        3. Dr
        4. Others, incl'ing new 1 4 fed.: licensed clinical soc. worker
      3. Only prevent ct's 2 compel testimony
      4. Narrow categ's but abs. in ct (can't make it priv. by calling it secret)
    2. Work Prod. Doc. (Hickman v. Taylor & Rule 26)b)3
      1. Not abs. like priv.
      2. Hickman v. Taylor (p. 575; 1/21)
        1. Written Stmts & Doc's
          1. Protected as work prod. if do it 4 litig.
          2. But can get it if rsn & justif. of essential need like [1] evid., [2] impeach, [3] W's not available
        2. Oral Stmt
          1. Atty's recollection which goes 2 atty's mind / impression which is written down
          2. This is not discov'able
      3. Rule 26)b)3
        1. Written Stmt & Doc's
          1. Stuff Discov'able by b)1 +
          2. Prep'ed in anticipation of litig. / trial
          3. Then not discov'able unless
            1. Subst'l need in prep. 4 party's case +
            2. Unable w/o undue hardship 2 obtain subst'l equiv. material by other means
          4. W dying & impeachment case of video of P, discov'able
        2. Atty's Mental Impressions: Abs. Protection
        3. Unlike Hickman, applies 2 atty, consultant, surety, indemnitor, insurer / agent
        4. W's Stmts
          1. Allow parties & W's 2 get stmts w/o any spec. showing
    3. Protective Orders (Centurion v. Warren p. 589 1/24)
      1. Rule 26)c
        1. After movant in good faith conferred / attempted w/other party +
        2. Good cause +
        3. For stuff in axn / depo
        4. Which justice req's 2 protect from annoy, embarrass, oppress, / undue burden
        5. Can ask 2 do 1 of 8 stuff unless other party can show
      2. Pract'al oriented
        1. In Centurion, experts got 2 see it & then sealed
  6. Excessive Adversary Request / Resistance 2 Discov.
    1. Limitations
      1. Interrog. limited 2 cert. # Rule 33
      2. Limit on # of depo under Rule 31
    2. Mandatory Discl.: Rule 26)a
      1. Each dist. could opt out
        1. Many did so lots of disuniformity
      2. Where applicable, party must discl. w/o waiting
      3. Three Types
        1. Expert
        2. Pre-trial
        3. Initial
          1. W, Name if known w/address & phone # of indiv. likely 2 have discov'able info
          2. Doc's
          3. Computation of damage claims
          4. Any ins. agmt
          5. Scope is disputed facts alleged w/partic. in the pleadings so narrow
          6. Follow the trail of Rule 26)f & 16)b 2 get 85 / 115 days after complaint served 2 discl.
      4. Scheetz v. Bridgestone (p. 369 supp. 1/31)
        1. Must discl. everything 2 other party even if think the other party has the info
        2. Pt of discl. not 2 fight over what 2 give up but 2 give everything, incl'ing harmful & what other side might already have
    3. 'er Role 4 Cts
      1. Limiting Excessive Use
        1. Ct can limit on depo & interrog. by Rule 26)b)2
        2. Parties can also limit by protective orders
        3. Rule 26)f req's discov. conference 2 arr. 4 discl's & dev. discov. plans 2 submit 2 judge
      2. Basic Reqt's 4 Sanction
        1. Unusual / excessive discov. req's
        2. Unrsbl noncompliance
      3. Sanction Rules
        1. 26)g: Atty Certif. / Signing: 4 Excessive Request (or refusal)
          1. Certifies that it's 2 attys' best of knowledge after rsbl inquiry that discl. is correct & compl.
          2. 26)g)2 req's that atty sign discov. req., response / obj. 4 best knowledge & belief after rsbl inquiry & that it's [1] consistent w/rules, [2] no improper purpose, & [3] not unrsbl / unduly burdensome
          3. Rule 26)g)3 is mandatory approp. sanction & specif'ly gives auth. 4 rsbl atty fee
        2. 37: Primary Sanction 4 Refusal
          1. Rule 37)a motion & sanction of 2 step process
            1. Req's motion from party 2 compel after good faith effort & sanction by 37)a)4 2 pay 4 making that motion by loser pay
            2. If fail 2 comply order after motion 2 compel granted, then 37)b 4 serious sanction
              1. Stuff that matters 4 which order was made, taken est'ed
              2. Refuse 2 allow 2 support / oppose claims / defenses / enter evid.
              3. Strike out pleadings / parts / dismiss
              4. Rsbl atty's fee
          2. Rule 37)d 4 PARTIES' failure & imm. sanction 2 Rule 37)b)2
            1. If party fail 2 appear 4 depo
            2. Fail 2 serve ans's / obj's 2 interrog's
            3. Fail 2 serve written response 4 inspection
        3. Lew v. Kona (p. 654 2/4)
          1. Ex. of Rule 37 sanctions 4 not showing up 4 depo
          2. Need wilful or more than negligence 4 extreme sanction
        4. Nat'l Hockey League v. Metropolitan Hockey Club (p. 656 2/4)
          1. Gen. deterrence notion is ok 4 sanctioning
    4. 'er Protective Orders
  7. Discov. Abuse in Gen. Way (look @ lec. 2/7)
    1. Parties will construe in narrowest possible way 4 doc. prod., etc.

Pretrial Conference

Rules 16 & 26)f

  1. Case Mgmt 2 Judges
    1. Possible in Fed. Ct. Sys. where Specif. Judge Assigned 2 Specif. Case
    2. Settle Most Cases: Judges Have Some Influence
  2. X Line After Served / Waived Serv. of Process
    1. Rule 26)a: initial discl. 10 days before 26)f
    2. Rule 26)f Reqt
      1. Meet as soon as pract'able but 14 days before 16)b
      2. Nat. of claims & defense
      3. Possibility of prompt settlement
      4. Discl.
      5. Dev. proposed discov. plan
    3. Rule 16)b Reqt
      1. Get report from parties by Rule 26)f 2 prod. scheduling plan as soon as pract'able but w/in 90 days of appearance / 120 days after served
  3. Judge Has Imm. Oversight
    1. Rule 16)a Auth's Judge 4 Conf.
      1. Atty must show prog.
    2. Rule 16)c: Pretrial Conf. Subj's
      1. Sixteen matters in fed. & look @ handout (2/11)
    3. Rule 16)d: Final Pretrial Conf.
  4. Conseq's
    1. Pushes Preparation of Trial Up & No Real cost / more settlement
    2. Compare w/CA (2/11) 5 & 2 yr. tracks
  5. US v. 1st Nat'l Bank of Circle
    1. Final Pretrial Order
      1. Supersede pleadings by Rule 16)e & control subseq. course of litig.
      2. Only modify if 2 prevent manifest injustice by Rule 16)e which is 'er than Rule 15 stand.

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Ms. Haeji Hong

January 15, 1998
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