- Unusual b/c atty's do it but jud'ly sanctioned
- Goals of Discov.
- To obtain info nec. 4 trial
- Strategically, get info 4
- Dispositive motions like sum jgmt
- Freeze opponents use
- Preserve evid. 4 trial
- Delay, harass, attrition
- Deposition: Oral (3rd party can B
- Interrog.: Written (only parties)
- Prod. Doc's (3rd party can B subj.)
- Phys. & Mental Exam (only parties)
- Admission of Truthfulness (only parties)
- Rule 26)b 4 Scope & Limits
- Non-priv'ed matters
- Relev. 2 subj. matter in pending axn
- Not just admissible stuff but also rsbly calc'ed
2 lead 2 admissible evid.
- So in Blank v. Sullivan & Cromwell (handout,
sex harass case), want 2 know pattern of discrim.
- Rule 30: Deposition
- Can B anybody, not just party
- Look over subsection c & d on how it's
- When obj., still go on
- Only not ans. if žd)1
- Nec. 2 preserve priv.
- Enforce limitation on evid.
- Present motion under parag. 3
- Rule 35: Phys. & Mental Exam
- Only device that has narrower relv. stand.
- Only if good cause & only 2 party
- Exceptions 2 Discov.
- Goal 2 encourage free COMMUNICATION: not protect
facts (Hickman, p. 579)
- Det'ed by state law in Erie cases by Rule 501(p.
238 supp) & by Cong. 4 fed. stuff
- Atty client
- Others, incl'ing new 1 4 fed.: licensed clinical
- Only prevent ct's 2 compel testimony
- Narrow categ's but abs. in ct (can't make it
priv. by calling it secret)
- Work Prod. Doc. (Hickman v. Taylor & Rule
- Not abs. like priv.
- Hickman v. Taylor (p. 575; 1/21)
- Written Stmts & Doc's
- Protected as work prod. if do it 4 litig.
- But can get it if rsn & justif. of essential
need like  evid.,  impeach,  W's not available
- Oral Stmt
- Atty's recollection which goes 2 atty's mind
/ impression which is written down
- This is not discov'able
- Rule 26)b)3
- Written Stmt & Doc's
- Stuff Discov'able by b)1 +
- Prep'ed in anticipation of litig. / trial
- Then not discov'able unless
- Subst'l need in prep. 4 party's case +
- Unable w/o undue hardship 2 obtain subst'l equiv.
material by other means
- W dying & impeachment case of video of P,
- Atty's Mental Impressions: Abs. Protection
- Unlike Hickman, applies 2 atty, consultant, surety,
indemnitor, insurer / agent
- W's Stmts
- Allow parties & W's 2 get stmts w/o any spec.
- Protective Orders (Centurion v. Warren p. 589
- Rule 26)c
- After movant in good faith conferred / attempted
w/other party +
- Good cause +
- For stuff in axn / depo
- Which justice req's 2 protect from annoy, embarrass,
oppress, / undue burden
- Can ask 2 do 1 of 8 stuff unless other party
- Pract'al oriented
- In Centurion, experts got 2 see it & then
- Excessive Adversary Request / Resistance 2 Discov.
- Interrog. limited 2 cert. # Rule 33
- Limit on # of depo under Rule 31
- Mandatory Discl.: Rule 26)a
- Each dist. could opt out
- Many did so lots of disuniformity
- Where applicable, party must discl. w/o waiting
- Three Types
- W, Name if known w/address & phone # of indiv.
likely 2 have discov'able info
- Computation of damage claims
- Any ins. agmt
- Scope is disputed facts alleged w/partic. in
the pleadings so narrow
- Follow the trail of Rule 26)f & 16)b 2 get
85 / 115 days after complaint served 2 discl.
- Scheetz v. Bridgestone (p. 369 supp. 1/31)
- Must discl. everything 2 other party even if
think the other party has the info
- Pt of discl. not 2 fight over what 2 give up
but 2 give everything, incl'ing harmful & what other side
might already have
- 'er Role 4 Cts
- Limiting Excessive Use
- Ct can limit on depo & interrog. by Rule
- Parties can also limit by protective orders
- Rule 26)f req's discov. conference 2 arr. 4 discl's
& dev. discov. plans 2 submit 2 judge
- Basic Reqt's 4 Sanction
- Unusual / excessive discov. req's
- Unrsbl noncompliance
- Sanction Rules
- 26)g: Atty Certif. / Signing: 4 Excessive Request
- Certifies that it's 2 attys' best of knowledge
after rsbl inquiry that discl. is correct & compl.
- 26)g)2 req's that atty sign discov. req., response
/ obj. 4 best knowledge & belief after rsbl inquiry &
that it's  consistent w/rules,  no improper purpose, &
 not unrsbl / unduly burdensome
- Rule 26)g)3 is mandatory approp. sanction &
specif'ly gives auth. 4 rsbl atty fee
- 37: Primary Sanction 4 Refusal
- Rule 37)a motion & sanction of 2 step process
- Req's motion from party 2 compel after good faith
effort & sanction by 37)a)4 2 pay 4 making that motion by
- If fail 2 comply order after motion 2 compel
granted, then 37)b 4 serious sanction
- Stuff that matters 4 which order was made, taken
- Refuse 2 allow 2 support / oppose claims / defenses
/ enter evid.
- Strike out pleadings / parts / dismiss
- Rsbl atty's fee
- Rule 37)d 4 PARTIES' failure & imm. sanction
2 Rule 37)b)2
- If party fail 2 appear 4 depo
- Fail 2 serve ans's / obj's 2 interrog's
- Fail 2 serve written response 4 inspection
- Lew v. Kona (p. 654 2/4)
- Ex. of Rule 37 sanctions 4 not showing up 4 depo
- Need wilful or more than negligence 4 extreme
- Nat'l Hockey League v. Metropolitan Hockey Club
(p. 656 2/4)
- Gen. deterrence notion is ok 4 sanctioning
- 'er Protective Orders
- Discov. Abuse in Gen. Way (look @ lec. 2/7)
- Parties will construe in narrowest possible way
4 doc. prod., etc.
Rules 16 & 26)f
- Case Mgmt 2 Judges
- Possible in Fed. Ct. Sys. where Specif. Judge
Assigned 2 Specif. Case
- Settle Most Cases: Judges Have Some Influence
- X Line After Served / Waived Serv. of Process
- Rule 26)a: initial discl. 10 days before 26)f
- Rule 26)f Reqt
- Meet as soon as pract'able but 14 days before
- Nat. of claims & defense
- Possibility of prompt settlement
- Dev. proposed discov. plan
- Rule 16)b Reqt
- 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
- Judge Has Imm. Oversight
- Rule 16)a Auth's Judge 4 Conf.
- Atty must show prog.
- Rule 16)c: Pretrial Conf. Subj's
- Sixteen matters in fed. & look @ handout
- Rule 16)d: Final Pretrial Conf.
- Pushes Preparation of Trial Up & No Real
cost / more settlement
- Compare w/CA (2/11) 5 & 2 yr. tracks
- US v. 1st Nat'l Bank of Circle
- Final Pretrial Order
- Supersede pleadings by Rule 16)e & control
subseq. course of litig.
- Only modify if 2 prevent manifest injustice by
Rule 16)e which is 'er than Rule 15 stand.
This material is copyrighted by the author. Use of the material
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Ms. Haeji Hong
January 15, 1998