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Civil Procedure II
Santa Clara University School of Law
Hsieh, Marina C.

Hsieh Civil Procedure Spring 2013

How to Approach:

· What did they request?

o Was it requested properly? Timely?

· Was it within the scope?

· Were there any privileges?

· Were there any exceptions to the privileges?

· If not disclosed and should have:

o Enforcement mechanism?

§ How do you get them?

o Sanctions?

A. Overview of Structure:

1. Procedural Values

B. Scope

1. Initial Mandatory Discovery

a. If you don’t properly abide by rule 26(a)(1)(A) you will be sanctioned, automatic enforcement power of 37(c)(1)- no motion to compel necessary

b. 26(a)(1)(A)- the purpose of this is to assist party in deciding who to depose

i. Chalick v. Cooper Hospital- violation of 26(a)(1)(A)(i), gave name but not address, phone number, or basis of knowledge

2. Relevance

a. A party is entitled to material which is relevant or admissible at trial but also information that appears reasonably calculated to lead to the discovery of admissible evidence

i. Blank v. Sullivan & Cromwell- trickle down effect of policy in hiring (if discriminate at partner level there could be discrimination also at associate level)

3. Privileges

a. General

i. Regardless of the privilege facts are discoverable/ facts aren’t privileged

ii. Have to claim privilege it isn’t automatic

a. Must expressly make the claim and describe nature of documents, tangible things 26(b)(5)(a)(i-ii)

b. 26(b)(5)(B)- if you give something over that was privileged you can get it back/have it destroyed/etc.

b. Attorney Client – Comes from Common Law Communication to a lawyer without the presence of others for the purpose of obtaining legal advice

i. Purpose: must be fully informed to provide legal advice

ii. Absolute privilege- this is the ideal one

iii. Upjohn Co. v. United States attorney client privilege extended to all levels of management

c. Work Product/ Trial Prep.

d. Right against self-incrimination

e. Marital

4. E-Discovery

Scope of initial disclosures and discovery

Required Initial Disclosures 26(a)

Discovery Requests 26(b)

When

· 26(a)(1)(C): Within 14 days after 26(f) (Pre-Trial Conference)

o EXCEPTION: different time stipulation by court order or party objects during 26(f)

· 26(a)(1)(D) IF NEW PARTY JOINS after 26(f) then 30 days

o EXCEPTION: different time stipulation by court

26(d)(1):

· Only after 26(f)

26(d)(2):

· Methods of discovery can be done in any order

Scope

Used to support its claims and defenses

· Non-privileged matter that is:

o Relevant to any parties claim or defense

o And court can order discovery of any matter relevant to the subject matter of the case

o Doesn’t have to be admissible but must be reasonably calculated to lead to the discovery of admissible evidence

EXCEPTIONS

26(a)(1)(B)

I. Examples:

II. Habeas corpus petition (iii)

III. Student loans (vii)

26(b)(2)- Limits

· 26(b)(2)(A)- court can alter limits to interrogatories and depositions

· 26(b)(2)(B)- electronically stored information if undue burden or cost

o Party claiming undue burden- to try and oppose motion to compel or obtain protective order- has the burden of showing why, but court can still order discovery if good cause is shown

26(b)(2)(C)- Why limit?

· Unreasonably cumulative and duplicative or can be obtained from other source

· Other party could have found

· Burden outweighs benefit

26(a)(2)(A)

· Identity of witness disclosing party will use at trial to present evidence

26(a)(2)(B)

· If retained to provide expert testimony regularly must have a signed written report including:

(i) Opinion and basis

(ii) Facts and data

(iii) Exhibits

(iv) Qualifications including last 10 years of publication

(v) Cases in last 4 years in which they testified

(vi) Compensation

26(a)(2)(C) If no written report required:

i. Provide subject matter of evidence

ii. Summary of facts and opinions

26(b)(4)(A)

· Dispose any person who is an expert that may be presented at trial

Non-testifying

Don’t have to disclose

26(b)(4)(D)

· Can’t depose experts who the other side is not going to use at trial

EXCEPTIONS:

· Exceptional circumstances:

o (i)Examiner’s report

o (ii) Only one expert

EXCEPTION

26(b)(4)(B)- you don’t have to give opposing side draft reports (Considered work product)

26(b)(4)(C)- communications between attorney and expert witnesses who are required to provide written report

EXCEPT IF:

26(b)(4)(C)(i)- compensation

26(b)(4)(C)(ii)- facts or data used to form opinions

26(b)(4)(c)(iii)- assumptions relied upon to form opinions