REMEMBER, STILL ARGUE BOTH SIDES OF EVERYTHING
I. DISCOVERY IN GENERAL:
26(b)(1) – “Any matter, not privileged, that is relevant to the claim or defense of any party.”
Is this within the scope of discovery?
FRCP 26(b)(1) – allows discovery of any matter relevant to any parties claim or defense.”
Or “any mater that is relevant to the subject matter when good cause is demonstrated and the court grants permission.”
Is this information relevant to the claims and defenses of any party?
Std: reasonably calculated to be admissible at trial.
Exception: 26(a)(d)(1) – facts regarding liability insurance are admissible.
Can ask questions that call for hearsay (just needs to be reasonably calculated).
Even if the evidence appears to be irrelevant or immaterial.
We will let you ask questions about assets or insurance in discovery but not at trial.
Is this information protected by privilege?
201(b)(2) and 26(b)(1) protect information that is privileged.
However, which privilege law applies? Only an issue in federal court.
FR. Evidence 501 – If federal court is applying state law, then state privilege law applies. Otherwise, federal privilege applies in federal court.
Is this form of discovery too burdensome, thereby allowing the court to preclude it from being discovered?
26(b)(2)(c) – “fish with a reel, don’t drain the pond.”
Factors:
Unreasonably cumulative or duplicative
Obtainable elsewhere at a lesser cost or burden
Burden or expense less than likely benefit.
Ill. R 201(b)(1) – “allows discovery of any matter relevant to the subject matter of the pending action.”
Ask and you shall receive!
Essentially, Illinois courts apply the broader standard of scope, which allows for discovery of information regarding a potential claim that is not yet alleged instead of limiting the scope to those matters already plead. Federal courts will apply a this broader scope when the court allows.
Illinois discovery procedure –
Rule 201(k) requires every motion with respect to discovery shall include a statement that personal consultation and reasonable attempts to resolve differences have been made but the parties have been unable to reach agreement. If this is not attached to the motion, the court should deny the motion.
Review of Discovery rulings: district courts and trial courts have enormous discretion in this area (almost never is appellate review). But there are some rules:
1) Cannot be reviewed on appeal unless certified for interlocutory appeal.
2) Permission isn’t usually given (judgment wont be hard enough to demand permission).
3) Only Final judgments are appealable.
a) Use contempt to get around this rule! The attorney must allow himself to be found in contempt to challenge the judge’s ruling on appeal.
b) The order must impose a penalty or mention contempt.
B. CHOICE OF LAW ANALYSIS: whether or not state law or federal law applies depends on what court you’re in:
1. Work Product Analysis:
a. Federal Court: federal law applies.
b. Illinois State Court: apply Illinois law.
2. Attorney-Client Privilege:
a. Federal Court: depends on what law gives the rule of decision (probably will tell you which law applies):
1) State substantive: in federal court, when the state law or claim or defense is involved, privilege issues are determined in accordance with state law.
a) Apply IL attorney-client privilege.
2) Federal substantive: in federal court, when a federal claim or defense is involved, the federal courts may make rules governing privileges. [federal rules of evidence 501].
a) Apply federal attorney-client privilege.
b. Illinois State Court: apply Illinois law.
C. WORK PRODUCT ANALYSIS:
1. Was the item prepared primarily for litigation or trial?
a. No: not federal or Illinois work product (analysis would end but go on for test).
1) Possibility of litigation foreseen: if possibility of litigation is foreseeable, then it can be argued that the item was prepared for trial.
2) Regular reports (Rakus): making regular reports in anticipation of litigation isn’t for litigation because they can be used for other business purposes.
b. Yes: federal work product but may or may not be protected work product: Illinois work product (go on).
1) Different case (Dunlap): can apply to different case if when it was originally prepared it was in anticipation of litigation.
2. Federal (26(b)(3)): does the item disclose mental impressions, theories, or litigation plans of the party’s attorneys or representatives?
a. No: ordinary work product (go on).
b. Yes: opinion work product (go on).
1) Attorney’s non-verbatim notes are opinion work product.
3. Illinois 201(b)(2) (Monier): Does the item disclose the theories, mental impressions or litigation plans of the party’s attorney?
a. No: not Illinois work product (discoverable but go on).
b. Yes: and made in preparation for trial, then Illinois work product (go on).
4. If the item is work product, can the party make the required showing to overcome the objection?
a. Federal ordinary work product (Hickman): materials prepared by an attorney (not an assistant) “with an eye toward litigation” are free from discovery unless the party seeking discovery can show (both):
1) A substantial need for the materials: show material sought is of substantial importance to its case.
2) Undue hardship: unable to obtain the substantial equivalent without undue hardship.
b. Federal opinion work product: split
1) Is it protected:
a) Some courts: absolutely prote
expert: those retained for litigation or trial
b) 213f3 – Controlled Expert Witnesses
b. Is X testifying?
1) Yes: testifying expert (can automatically get discovery) for expert and opinion witnesses (213f3):
a) Upon written interrogatory one must identify: Subject matter on which an opinion witness is expected to testify, conclusions and opinions of the opinion witness and bases therefore, qualifications of the opinion witness and provide all reports of the opinion witnesses. (no reasonableness standard on disclosure)
b) Failure to disclose or supplement will result in an exclusion of the evidence, unless opinions have been disclosed in a deposition of the opinion witness.
c) Burden is on the proponent of the witnesses to establish that the information was disclosed or was contained in a deposition of the witness.
2) Not testifying: consulting expert (go on).
3) NOTE: can be testifying and consultant if addressing 2 different subjects.
c. Can you get disclosure of reports from consulting expert?
1) Consulting (201(b)(3)): person who has been retained or specifically employed in anticipation of litigation or preparation for trial but who isn’t to be called at trial. (specially protected: you can’t even get his identity)
a) Not discoverable unless: a showing of (1)“exceptional circumstances” under which it is (2)“impracticable” for the party seeking discovery to obtain facts or opinions on the same subject matter by other means.
b) Medical reports: Don’t automatically get medical reports like federal.
2. Federal Test (Rule 26a2, 26b4):
a. Did Plaintiff or Defendant see X as a treating doctor or in anticipation of litigation?
1) If treating: expert is actor expert and must be disclosed.
a) Actor expert: expert who acquired knowledge in the ordinary course of business.
1. only have to disclose same info as regular witness
2. treating physician (any expert) can be deposed under 26b4A
2) If litigation: hired expert (continue analysis to b).
a) Hired expert: those retained for litigation or trial.
b. Is X testifying?
1) Yes: Experts and Opinion Witnesses (26(a)(2)): parties must disclose automatically the identities of all persons who will give expert testimony.
