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

Civ Pro Outline – Professor Hsieh Spring Quarter 2009
▼        Part I – Discovery
      ▼ A. Discovery Reform
            ▼        i. Solution as a Problem
                  •   Goal of the new rules – “Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation”
                  •   Liberal pleading led to an advantage for the plaintiff in litigation, as the plaintiff can use the discovery process to obtain evidence in support of her claims from the defendant, essentially at the defendant’s expense
                  •   Advantage to those with $$$, use of wide-ranging discovery not to find facts but to impose transaction costs on the other side, forcing settlement to avoid the even higher costs of litigating
            ▼        ii. Chalick v. Cooper Hospital
                  •   Whether the defendant failed to satisfy the requirements of Rule 26 by not providing sufficient information to indicate that Dr. Burns has a degree of responsibility that makes him liable for the death of Michael Chalick
                  •   When a defendant’s conduct is such that it misleads the appellants as to the proper party to sue, it is not “unfair” to attach such a defendant to a case
                  •   Defendants failed to comply with their disclosure obligations under Rule 26(a)(1)(A) by not providing information about Dr. Burns other than his name – they did not provide a basis for his knowledge, as required by the rule
                  •   Furthermore, defendants have not provided substantial justification for their failure to explain the role of Dr. Burns, nor was this failure harmless
            ▼        iii. Interrogatories v. Depositions
                  •   Interrogatory is always written – is a much more limited tool as one can’t follow up on a question
                  •   Depositions cost $$$ – when there’s 100+ defendants to get information from, doing an interrogatory may be more useful and cost effective
      ▼ B. Scope of Discovery
            ▼        1. Relevant to the Subject Matter
                  ▼ i. Blank v. Sullivan & Cromwell
                        •   Plaintiffs were women lawyers who had unsuccessfully applied for positions as associates around 1970, and alleged sexual discrimination in hiring
                        •   Plaintiffs requested information in the form of interrogatories, specifically to identify every female permanent associate prior to a certain date and to indicate whether each was offered an opportunity to become a partner, and whether each became a partner
                        ▼        Old Standard
                              •   “relevance to the subject matter” – applicable only on court order for good cause shown
                        ▼        General Standard
                              •   “relevant to the claim or defense of any party” – 26(b)(1)
                        ▼        Disclosures Standard
                              •   Disclosing party must turn over materials relevant to his own claim or defense
            ▼        2. Any Matter Not Privileged
                  ▼ i. Hickman v. Taylor
                        •   J.M. Taylor, a tugboat, sinks – defendant’s counsel, Fortenbaugh, privately interviewed the survivors and took statements frmo them with an eye toward the anticipated litigation
                        •   Supplemental interrogatory was requested by the plaintiff’s 38th interrogatory, requesting any statements of the members of the crews of the sunken tow ship
                        •   Defendants contend that such requests called “for privileged matter obtained in preparation for litigation” and constituted “an attempt to obtain indirectly counsel’s private files”
                        •   Plaintiffs motion is an attempt to secure production of written statements and mental impressions without any showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner’s case or cause him any hardship or injustice
                        •   Best argument is that items that are written and indeed encouraged as to promote the thought process would no longer be written down if an attorney knew that the document were to be simply handed over to the opposing party on their whim
                  ▼ ii. Attorney-Client Privilege
                        •   (1) a communication (2) from the client to the lawyer (3) without the presence of others (4) for the purpose of seeking legal advice
                        •   To invoke the attorney-client privilege, a party must demonstrate that there was (1) a communication between client and counsel, which (2) was intended to be and was in fact kept confidential, and (3) made for the purpose of obtaining or providing legal advice
                  ▼ iii. Upjohn Co. v. United States
                        •   Subsidiary of plaintiff made illegal payoff to foreign government officials – accountants informed VP and general counsel, who prepared a questionnaire sent to “all foreign general and area managers” seeking information that could be related to illegal payoffs
                        ▼        In March of 1976 the company voluntarily submitted a preliminary report to the Securities and Exchange Commission disclosing questionable payments – IRS was eventually called in and issued a summons demanding production of documents prepared by general counsel in regards to the questionnaire sent out to managers
                              •   The company declined to produce the documents specified
                        ▼        Regarding the issue of necessity to access work products, the Court does not take a position – the magistrate in this case applied a “substantial need” standard articulated in 26(b)(3) which was incorrectly used under the circumstances
                              •   In following Rule 26 and Hickman, it is clear that such a work product (work based on oral testimony) cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship
                        •   In this case the Court feels that a far stronger showing of necessity and unavailability by other means than was made by the Government or applied by the magistrate in this case would be necessary to compel disclosure
                        •   Upjohn tells us that communication between counsel to a corporation and lower level employees can be protected by the privilege
                        •   General rule is that where the services of an agent are used in order to assist the lawyer in giving legal advice to the client, communications between the agent, the client and the lawyer are covered by the privilege as long as they relate to issues on which legal advice is sought
                        •   Privilege is waived when privileged information is shared with an agent for purposes unrelated to seeking legal advice
                  ▼ iv. Privileges in Civil Litigation
                        •   Principle of privileged information not being discoverable has been lasting
                        •   5th Amendment privilege against self-incrimination is a basis for which privileged information need not be given as long as the suit is criminal in nature, or carries a possible criminal sanction
                        ▼        Types of Privileges
                              •   Self-critical analysis privilege (recognized in some jx)
                              •   Doctor-patient / priest-penitent / marital privileges
                              •   Work product privilege
                  ▼ v. Work Product Privilege
                        •   “[a] document should be deemed prepared ‘in anticipation of litigation’ … if ‘in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.”
                        •   Lawyers and their clients have an affirmative obligation to preserve documents and other things that may be relevant to pending and anticipated litigation
                        •   Willful destruction of and failure to preserve evidence is called spoliation, and courts have inherent powers to impose sanctions against parties who commit spoliation
                        •   A lawye

opinion work product may be discovered and admitted when mental impressions are at issue in a case and the need for the material is compelling
                              •   In this case, both elements exist – in a bad faith insurance claim settlement case, mental impressions are directly at issue, and Holmgren’s need for the exhibits was compelling
                  ▼ x. Evidence Spoliation
                        •   Lawyers and their clients have an affirmative obligation to preserve documents and other things that may be relevant to pending and anticipated litigation
                        •   See Zubulake v. UBS Warburg LLC – once a party recognizes that litigation is possible, party must put a ‘litigation hold’ to ensure preservation of relevant documents, particularly in concern to the electronic nature of things these days
            ▼        3. The Adversary’s Experts
                  ▼ i. Cordy v. Sherwin-Williams Co.
                        •   Issue is whether an expert witness should be able to get away with changing parties during litigation
                        ▼        Some jx have developed a two-step inquiry to determine whether to disqualify an expert who had prior relationship with a party
                              •   (1) Was it objectively reasonable for the first party who retained the expert to believe that a confidential relationship existed?
                              •   (2) Did that party disclose any confidential information to the expert?
                        •   The Court finds that there is no evidence that either side is unable to secure another expert – where a different result might be warranted if the consultant involved were unique in some relevant sense, the expert might be allowed to testify (Wang Laboratories)
            ▼        4. California Application Case
                  ▼ i. Vinson v. Superior Court
                        •   Defendants moved for an order compelling plaintiff to undergo medical and physiological examination meant to test the true extent of her injuries and to measure her ability to function in the workplace
                        •   In the present case, plaintiff haled defendants into court and accused them of causing various mental and emotional ailments – defendants deny these charges, thus bringing her mental injuries into dispute
                        •   Further, she asserted a causal link between her mental distress and defendants’ conduct, which implicitly claims her symptoms were not caused by a preexisting mental condition, thereby raising question of alternative sources for the distress
                        •   Mental or physical examination requires the discovering party to obtain a court order, which may be granted only for good cause shown
                        •   “Absent extraordinary circumstances, inquiry into those (sex) areas should not be permitted, either in discovery or at trial”
                        •   Defendants do not establish specific facts justifying inquiry into plaintiff’s zone of sexual privacy or show how such discovery would be relevant, but rather make sweeping assertions regarding need for wide latitude in the examination
            •           Court emphasizes that presence of an attorney is not required during a mental examination – in light of broad discretion in discovery matters,