Civil Procedure II Outline

Civil Procedure II

Discovery

Scope of Discovery

Federal
A. Fed Rule 26(b)(1) – Discovery Scope and Limits
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.

B. Discovery Limits

Relevant – reasonably calculated to lead to the discovery of admissible evidence

i. Broader standard than what used to admit evidence into court.
ii. Tends to prove or disprove something the law says matters.

Not Unduly Burdensome – the cost is not disproportionate to the benefit

i. Don’t want parties to go on “fishing expeditions”
1. some leeway during discovery though
ii. Limits – discovery costs a lot of money and may be unfair to opposing counsel.

Not Privileged – information that is not permitted at trial, even though it might be highly relevant. So process of communicating the information is so important we disallow it to encourage communication.

i. Attorney-Client, Doctor-Patient, Psychotherapist-Patient
ii. Choice of law analysis is very important (see infra)
Illinois
Ill Rule 201(b)(1) – Scope of Discovery
“…a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action”

Liability Insurance

Because a legitimate aim of discovery is to aid in settlement, the Ill. Sup. Ct. has held that the plaintiff may discover the extent of the defendant’s liability insurance coverage.

Financial Information

Compensatory damages sought – not entitled to obtain discovery of defendant’s private financial information
Punitive damages sought – evidence of defendant’s net worth becomes relevant and admissible

Respondents in Discovery

Illinois Code § 2-402 permits plaintiff to name “respondents in discovery” people who are believed to have information essential to determine who properly should be named as additional defendants

i. Public policy – reduce number if individuals actually made defendants

Must seek leave of court and show “probable cause” to name a respondent in discovery as a defendant.

Procedures and Methods for Obtaining Discovery

1). Required Disclosures – the parties must exchange such information without having been requested by their opponent.

Federal
Fed. Rule 26

Only required to offer the other side the names of witnesses and descriptions of documents “that the disclosing party MAY use to support its claims or defenses,” as well as calculations of damages and copies of insurance agreements.
Fed Rule 26(a)(1) – must initially disclose

Name, address, telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment (old rule was you had to give anything relevant to disputed facts alleged in pleadings – even bad stuff you weren’t going to use)
Copy or description of all docs, data compilations, & tangible things that are in control of party and may be used to support claims or defenses unless solely for impeachment
Computation of any category of damages claimed and any documents evidencing that.
Any insurance agreement
The following proceedings are EXEMPT from initial disclosure:

i. An action for review on an administrative record;
ii. A petition for habeas corpus or other criminal challenge
iii. Action brought w/out counsel by a person in custody of the United States,
iv. Action to enforce or quash an administrative summons or subpoena
v. Action by the United States to recover benefit payments
vi. Action by the United States to collect on a student loan guaranteed by the U.S.
vii. Proceeding ancillary to proceedings in other courts; and
viii. Action to enforce an arbitration award.

Cannot refuse to comply b/c you have not completed your investigation or b/c you challenged the sufficiency of opponent’s disclosures or they have not made disclosures.

Fed. Rule 26(a)(2) – Expert Testimony Disclosure (doesn’t include treating docs)

Identity of any person who may be used at trial to present expert testimony at trial under Rules 702, 703, or 705 of the Federal Rules of Evidence
Written Report – requires preparation and disclosure of written expert witness report if the expert witness is “retained or specially employed” to provide expert testimony or is an employee whose duties “regularly involve giving expert testimony.” Must provide:

i. ‘complete’ statement of all opinions to be expressed and the basis & reasons
ii. The data or other information considered by the witness in forming the opinions
iii. Any exhibits to be used
iv. Qualifications of witness – all publications written in last 10 years
v. Compensation to be paid
vi. Any other cases witness has testified in last 4 years

Time frame for disclosures

14 days after Fed Rule 26(f) Conference (where parties meet up and map out discovery); which is ~ 7 days before a scheduling conference, unless a different time is set by stipulation or court order

i. Reasoning – can’t launch into discovery w/out disclosures first.

Fed. Rule 26(e) – Supplementation of Disclosures and Responses

Parties must supplement or correct disclosures automatically or in response to court order
Must supplement or correct if

i. They learn in some ‘material’ respect the information they disclosed is incomplete or incorrect
ii. The additional or corrective information has not otherwise been made known to the other parities during