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

Civil Procedure Spring 2010
Discovery (Rule 26) – Burden Of Production
Pre-2000 Discovery
In 2000, change from discovery allowed for anything “relevant to the subject matter” to “relevant to the claim or defense of any party” (btw, in notice pleading, you don’t have to specifically state a claim, just facts on which a claim can be based, however it’s going to be harder to do discovery if your claims are not specifically defined)
Conference: Planning for Discovery
Timing Rule 26(f)(1)
-conference 21 days before scheduling conference or *120 days after defendant served with complaint or 90 days after defendant has appeared *Rule 16(b)(2)
A court may require conference to occur less then 21 days before scheduling Rule(f)(4)
Parties Responsibilities Rule(f)(2)
-consider claims, defenses, and settlement.
-arrangements for disclosures, preserving discoverable information
-14 days after conference to submit a written report outlining plan
a court may require written report less then 14 days or excuse parties from written report Rule 26(f)(4)(B)
 done orally at pretrial conferences Rule 16(b)
Does not have to be in person but may be ordered by court
Discovery Plan Rule(f)(3)
timing, subject, issues, privileges and protections, limitations, court orders required
Sanctions Rule 37(f)
Failure to participate in good faith and submitting a proposed plan may, after an opportunity to be heard, require attorney pay reasonable expenses.
Procedure Initial Disclosure – individuals who likely have information
Time for initial disclosure (mandatory)  Rule 26(a)(1)(C-D)
General – 14 days after Rule 26(f) conference unless stipulated otherwise or by court order Rule 26(d)
Parties served/joined after conference – 30 days unless stipulated otherwise or by court order
Information Required Initially Rule 26(a)(1)(A)(i-iv)
name, address, telephone number, subjects used to support claims or defenses of each individual likely to have discoverable information
copy of all documents, electronic, and tangible things in possession or control used to support claims or defenses
DO NOT need to disclose information used for impeachment of opponents witnesses
computation of each category of damages claimed
Unacceptable Excuses – not fully investigated, challenging the sufficiency of other party’s disclosure, opposing party did not make disclosure Rule 26(a)(1)(E)
Supplementing Rule 26(e)
must supplement disclosure or response in a timely manner if additional or corrective information has not been known to other parties during discovery process or in writing
prevents gamesmanship (liable to Rule 37(c)(1) sanctions unless harmless or substantially justified)
can be used as a means for an advantage in settlement bargaining
however, voluminous amounts of discovery is not gamesmanship even if discouraging (Bradford Hunt v. Merck-Medco)
decreases time and expense spent. Prevents waste of courts time
Signature Required Rule 26(g)
no signature: no duty to act
if inconsistent with rules, frivolous, unreasonable then sanctions
Pretrial Disclosures – other information mandatory
Time to disclose Rule 26(a)(3)(B)
30 days before trial
Objections – 14 days after disclosures are made/received
to depositions designated or the admissibility of materials
No objection – waived unless excused by court for good cause
Disclosure Rule 26(a)(3)(A)
name, address, telephone number, deposition of each witness expected to present or may call
document or other exhibit including summaries of other evidence expects or may offer
DO NOT need to disclose evidence used for impeachment of opponent’s witnesses
Signature Required Rule 26(g)
Discovery Scope and Limits – is it discoverable?

or because of anticipated litigation (depending on jurisdiction)
ie documents – tapes of third party interviews (Hickman v. Taylor)
ie intangible – cannot put attorney on stand to recall what was said
however, oral statements with facts are not protected
Exception – substantial need for materials because of undue hardship cannot obtain their substantial equivalent by other means (non factual oral statements do not apply)
ie witnesses are no longer available
Opinion Work Product – mental impressions, conclusions, opinions, or legal theories of attorney Rule 26(b)(3)(B)
protects communications with litigation consultant in anticipation of litigation unless charge of false testimony
Claiming Privilege
Information Withheld Because of Privilege Rule 26(b)(5)(A)
must express information is privileged
describe the nature of what is not produced or disclosed – in a manner not revealing information — to let other party assess claim
shown by detailed privilege log w/ evidentiary submissions(ie affidavit or documentation)
Giving Own Information that is Privileged Rule 26(b)(5)(B)
(i) must notify party and the basis for it
(ii) opposing party must return or destroy and copies and not use disclose information
voluntary disclosures: disclosing significant portions can waive privilege
giving privilege information to expert will act as waiver.
Protective Orders
motion in good faith to prevent annoyance, embarrassment, oppression, or undue burden or expense Rule 26(c)(1)(A-H)