DISCOVERY
Overview
I. Advantages and Disadvantages
a. The purpose of discovery is to inform each side what the other side has, which makes for a simpler, fairer trial. After going through all the phases of disclosure, usually there are very few surprises left for trial.
b. The major downside is that discovery can be long and incredibly costly
c. Investigation: an alternative to formal discovery
i. Given the time, expense, and inconvenience created, formal discovery is and should be seen largely as a fallback measure, to obtain information unavailable through informal investigation
ii. In fact, Rule 11 requires some measure of pre-filing investigation into the factual and legal basis of the claim
iii. Advantages
1. The opposing party does not have to be notified
2. Opposing counsel will not be present to defend the opposing party’s interests
3. Frequently less expensive than formal discovery mechanisms
iv. Limitations
1. A party may not talk to an opposing party who is represented by counsel unless the party’s lawyer consents, and neither the party nor his counsel has to cooperate
2. There are some limits on talking to employees of an opposing party
3. Evidence procured illegally may be out of bounds
II. Proper scope of discovery
a. General rules
i. Party may obtain discovery regarding any matter, not privileged, that is reasonably calculated to lead to the discovery of admissible evidence
ii. “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence
b. Limitations
i. In the opinion of the court
1. The discovery sought is unreasonably cumulative or duplicative
2. If the party seeking discovery has had ample opportunity by discovery to obtain the information sought
3. The burden or expense of the proposed discovery outweighs its likely benefit
ii. Privileges
1. Attorney-client
a. Elements that must be present in order for this privilege to apply
i. Where legal advice of any kind is sought
ii. From a professional legal adviser in his capacity as such
iii. The communications relating to that purpose
iv. Made in confidence
v. By the client
vi. Are at his instance permanently protected
vii. From disclosure by himself or his legal adviser
viii. Unless that privilege be waived
b. The purpose of the attorney-client privilege is to promote full disclosure by the client to his attorney
c. Underlying facts are not privileged;
d. Privileged materials may be discovered where the privilege holder has taken a litigation stance that puts them at issue
2. Physician-patient
3. Work Product Protection
a. To be protected by this doctrine, material must be produced in anticipation of litigation or trial
i. Purposes
1. Allowing discovery of such information would interfere with confidentiality of trial preparation
2. Allowing discovery of trial preparation material would allow lawyers to freeload off of the work done and expenditures made by opposing counsel
3. Allowing discovery of trial preparation material would create the very real possibility of lawyers being called as witnesses in their own cases, if the statements they produced contradicted other testimony from the same witness
b. Categories of work product
i. Documents prepared in advance of litigation which contain information that can reasonably be acquired by other means (discovery is barred)
ii. Opposing counsel’s thought process in preparing a case, such as legal theories or litigation strategy (“opinion work product”) (discovery is barred)
iii. Materials prepared in advance of litigation which may be subject to discovery if discovering party can show:
1. A substantial need for the materials
2. That similar information cannot be obtained through other means without substantial hardship
4. Trial Preparation by Experts
a. Attorneys may hire experts to help them with a subject they know nothing about themselves, in order to perform a more effective deposition, even when they have no intention of hav
wn to the other parties during the discovery process or in writing
ii. A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if
1. the party learns that the response is incomplete or incorrect and
2. if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing
e. Rule 26(f) Discovery Planning Conference
i. Attorneys confer to consider the nature and basis of their claims and defenses, consider settlements and resolutions, and make or arrange for mandatory initial disclosures
ii. Attorneys develop a proposed discovery plan that indicates the parties’ views and proposals concerning
1. Mandatory initial disclosures
2. 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 certain issues
iii. Timing
1. Must be held at least 21 days before a scheduling conference is held
2. Attorneys must submit to the court within 14 days of this conference the proposed discovery plan
III. Certification
a. Rule 11 equivalent in the discovery process is Rule 26(g)(2).
b. Every discovery request must be signed, and the signature certifies that
i. The request is not intended to harass, delay, or drive up the cost of litigation
ii. That the cost of complying with the request is proportionate to the costs to the issue at hand and the amount at stake in the litigation
c. Unsigned requests, responses, and objections will be stricken unless signed promptly after the omission is called to the attention of the party making the request
d. If this rule is violated the court, upon motion or its own initiative, shall impose upon the person who made the certification an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation
IV. Supervision: Motions to Compel and Sanctions (Rule 37)
a. Motion for Order Compelling Disclosure or Cooperation in Discovery
