Outline for Civil Procedure II
Discovery
Most lawsuits end in discovery: (1) Understand the case better—need to settle; (2) Wear down—too expensive to keep going.
Roles of discovery: (1) prevent unfair surprise at trial; (2) assure that the case will be resolved on the merits; (3) position parties to realistically evaluate merits of the case (promote settlement).
Rule 26
(a) Required Disclosures; Methods to Discover Additional Matter
(1) Initial Disclosures
(A) name (and address and phone # if known) of anyone likely to have discoverable information that the disclosing party may use to support its claims/defenses, unless solely for impeachment;
(B) documents that disclosing party may use to support its claims/defenses, unless solely for impeachment;
(C) computation of damages (along with material on which such computation is based); and
(D) insurance agreement (insurance company may have to pay something)
No excuse for not making them.
Required within 14 days after 26(f) conference, unless different time set by stipulation or court order, or unless party objects during conference that initial disclosures are not appropriate in the circumstances of the action and states the objection in the 26(f) discovery plan [objecting will only buy you 7 days; judge will rule on objections by the scheduling conference].
(2) Disclosure of Expert Testimony
Required, but not part of initial disclosure.
The report must disclose: Opinions (key statements the expert will describe/give at trial; if it is not in the report, the expert cannot say it), Basis and reasons for opinions, Information considered in forming opinions, Exhibits for opinions, Qualifications of the witness, Compensation to be paid witness, Listing of other cases in which witness has testified as expert within last 4 yrs.
At least 90 days before trial
(3) Pretrial Disclosures
Must disclose witnesses, depositions, and documents or other exhibits regarding evidence you may present at trial other than solely for impeachment.
At least 30 days before trial. Objections within 14 days thereafter (waived unless excused for good cause).
(4) All above disclosures must be in writing, signed, and served.
[Note: If you are only using something for impeachment, not as part of your case in chief, then you don’t have to disclose it. Don’t have to disclose in initial disclosure any bad witnesses or facts for your own case. Initial disclosure: only have to disclose things that support your own side’s claims or defenses. You must list anyone you might want to use to support your case.]
(b) Discovery Scope and Limits
(1) In General
4 main principles/ideas: relevant to the claim or defense [and not privileged]; if related to subject matter, court may order discovery for good cause; relevant: not necessarily admissible, but must “appear reasonably calculated to lead to the discovery of admissible evidence”; all discovery subject to limitations of 26b2i-iii
(2) Limitations
(i) unreasonably cumulative/duplicative, or obtainable from more convenient, less burdensome, or less expensive source
(ii) has had ample opportunity by discovery to obtain info sought
(iii) burden/expense outweighs likely benefit (consider needs/case, amount in controversy, parties’ resources, importance of issues at stake, and importance of proposed discovery in resolving the issues)
(3) Trial Preparation: Materials
(Codification of Hickman. Facts are not protected by the WPD, but are discoverable. You have to produce the facts the witness gives you.)
Substantial need of materials in preparation of your case, and unable without undue hardship to obtain substantial equivalent by other means
Court shall protect against disclosure of mental impressions, legal theories, etc. of an attorney/represe
ve you discovered the document/witness in a timely manner. If disclosed through normal course of discovery, then most judges will consider it supplemented to initial discovery.)
(f) Conference of Parties; Planning for Discovery
Parties must meet and confer at least 21 days before scheduling conference or scheduling order under 16(b).
Proposed discovery plan; within 14 days after conference, submit to court a written report outlining the plan.
(3) Discovery Plan (2007)
A discovery plan must state the parties’ views and proposals on:
(A) what changes should be made in the timing/form/requirement for 26(a) disclosures, including a statement of timing for initial disclosures;
*(B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;
(C) any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced (new);
(D) any issues about claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert these claims after production — whether to ask the court to include their agreement in an order;
*(E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and
(F) any other orders that the court should issue under 26(c) or under 16(b) and (c).
