Civil Procedure I – Spring 2014 – Prof. Beyler
1. SCOPE OF DISCOVERY
Topic: RELEVANCE
Federal Rule 26(b)(1): Discovery Scope and Limits, In General
Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
IN GENERAL. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
RULE : FED- must disclose without being asked even the bad stuff – applies only to things that are pleaded with particularity, which generally doesn’t happen in Fed. court.
PROPOSED CHANGES TO FED RULE 26:
No opt out feature for the local dist. courts
Automatic initial disclosure for the good stuff not the bad, this allows the parties to save the good evidence to impeach
To exempt certain cases from disclosures.
IL Rule 201(b)(1): Discovery
(b) SCOPE OF DISCOVERY.
RULE : Local district court can opt out of the Local Fed DC rules.
IL- requires full disclosure. “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discover or to the claim or defense of any other party . . .”
– Fed. does not require full disclosure
IL- the P may discover the extent of the D’s liability insurance coverage.
Why: B/C insurance is an important fact in evaluating a case for settlement purposes and that is the main obj. of discovery.
– Fed. does not, unless it leads to the discovery of admissible evidence (and it usually does not).
Pre-action Discovery. IL- 217(a). Allows a plaintiff before filing an action to bring a petition to perpetuate a person’s testimony for a possible future lawsuit.
– Fed.- 27(a). does the same thing.
More Pre-Action Discovery. IL- 224. Allows a plaintiff before filing an action to bring a petition to identify the persons or entitles responsible for the P’s injury.
– EX. An employee is injured at work. He cannot sue the employer b/c of workman’s comp laws, but he does not know the name of the manufacturer. This rule allows the worker a way to obtain an order directing the employer to provide discovery so the worker can proceed against the manufacturer.
– Fed. no comparable rule
RELEVANCE (cont.)
Respondent In Discovery. IL- 2-402. Allows a plaintiff to name persons as “respondents in discovery” who are believed to have information essential to determine who properly should be named as additional D’s in the action. To use this rule, one party must be named as a D.
– a respondent in discovery can become a D as long as the P meets the probable cause test.
Why: to reduce the number of individuals actually made D’s by giving the P a mechanism for conducting discovery before having to decide whether to sue some of the potential D’s.
Fed.- does not have a comparable rule
**Both Federal rule and local rule require an initial meeting before a scheduling
Why: allows the court to set the schedule, not the attorneys.
CASES:
Blank v. Sullivan- law firm sex discrimination case.
Issue: Is information asked for in a depo. concerning how the D’s employees became partners relevant and discoverable, when the action is brought for discrimination in hiring, not becoming a partner.
Rule: General information on the D’s labor hierarchy may be reflective of restrictive or exclusionary hiring practice within the contemplation of the statute b/c it is calculated to lead to the discovery of admissible evidence.
Stephan v. Cheney- USNA homosexual.
Issue: Is the question asked in the depo. to the P if he had engaged in homosexual conduct relevant? The P refused to answer this question and the lower court dismissed his action as a sanction for not answering the question. (This is not the usual practice. Usually the 1st judge orders for the P to answer and only sanctions the P if they disobey the order.)
Discovery is an area of law that the trial court has enormous discretion. This case was appealable b/c it was a final order and not in discovery anymore.
Applying the discovery standard to different areas of law gives different results.
Rule: (Special Rule) Judicial review of an administrative action is confined to the grounds upon which the record discloses that the action was based. In this case the action was based on the fact that the P stated that he was a homosexual, not whether he had engaged in homosexual activity, thus that Q was not relevant and therefore does not lead to the discovery of admissible evidence.
Topic: PRIVILEGE
FED 26(b)(1) and IL 201(b)(2). Both protect privileged matters from discovery.
FED: Under Federal rules of evidence 501 1) state privilege law applies when state law supplies the rule of decision for the claim or defense; and 2) federal privilege law applies otherwise.
– EX. In a diversity case based on IL law and attorney-client privilege objection, the federal court will apply IL privilege law. However, if the case is in the Fed. court on a federal question, then the federal court will apply federal privilege law.
2. REQUIRED DISCLOSURES AND INTERROGATORIES
Topic: WHAT IS A PARTY REQUIRED TO DISCLOSE?
FEDERAL RULE 26(A) and Local Rule 12 are the same, unless the local rule has opted out, which is noted in italics.
Required Disclosures: Methods to Discover Additional Matter.
(1) Initial Disclosures. Before the discovery request the party shall provide to other parties. – Local rule 11(a) opts out of all initial disclosure requirement in Track A cases: prisoner cases, land condemnation cases, IRS enforcement actions, and labor cases arising out of collective bargaining agreements.
a) The name, and if known, the address and telephone number of each individual likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings, identifying the subjects of the information; – Local rule 12 is the same
b) A copy of a description of all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to disputed facts alleged – Local rule 12 is the same
c) A computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under Rule 34 the documents, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and – Local rule 12 ops out of computation of damages
d) For inspection and coping as under rule 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a
it is used to determine whether the case is subject to Rule 222’s disclosure obligations.
– If an affidavit states that the damages do not exceed $50,000 (just to get auto. disclosures), then they will be lowered to $50,000.
(c) Time for Disclosure; Continuing Duty to Supplement.
– Requires the parties to make their initial disclosures w/in 120 days after the filing of a responsive pleading to the complaint, counter-complaint, 3P complaint, etc.
– The parties must “seasonably” supplement or amend disclosures whenever new or different information or documents become known to the disclosing party.
(d) Prompted Disclosure of Information (Required Disclosures).
9 types of disclosures that the parties must make :
1 – the factual basis for each claim or defense;
2 – the legal basis for each claim or defense;
3 – the identities of trial witnesses and the subject matter of their testimony;
4 – the identities of persons with relevant information;
5 – the identities of persons who have given statements and the custodian of copies of those statements;
6 – the identities of opinion witnesses, their opinions, and the bases therefore;
7 – the damages claimed, the documentary support for the claim, and the identities of damage witnesses;
8 – the identity and location of tangible evidence and documents to be used at trial and insurance agreements; and
9 – a list of relevant documents (or categories of documents).
*Parties must disclose not only everything that they already know, but also everything that they can learn by reasonable investigation.
(e) Affidavit re Disclosure.
Requires a disclosure affidavit stating that the disclosure is complete and correct and that all reasonable attempts have been made to comply with the rule.
WHAT IS A PARTY REQUIRED TO DISCLOSE / ILLINOIS ? (cont.)
(f) Limited and Simplified Discovery Procedures.
Limits are set on the availability of discovery in cases in which disclosures are required.
The disclosures will make most discovery unnecessary.
The limits :
1 – 30 interrogatories directed to any other party;
2 – 3 hours per discovery deposition;
3 – no discovery depositions to be taken of non-parties, except for treating physicians and opinion witnesses who have been designated to testify at trial; and
4 – no evidence depositions.
(g) Exclusion of Undisclosed Evidence.
Any evidence not disclosed is excluded from trial unless good cause shown.
(h) Claims of Privilege.
When info. is not disclosed b/c privileged, the claim must be made expressly and supported in writing.
(i) Affidavits Wrongly Filed.
Ct. will enter an order against a party who filed an affidavit that is :
A – false;
B – filed in bad faith; and
C – was w/o reasonable factual support.
