Civil Procedure II Outline

Civil Procedure II Outline
 
1)   Discovery
a)      Defined: The pre-trial devices used by parties to obtain facts and information about their case in order to assist in preparation for trial.
 
b)     Policy: The scope is very broad and the rules are very liberal.
c)      Plaintiffs seek information leading to proof of the elements of their claim/tort
i)        Pictures, medical reports, police reports, etc.
d)     Defendants seek information to disprove the essential elements of plaintiff’s claim:
i)        Employment records, alternative reports, witness accounts, site inspections, etc.
 
e)      Reasons for discovery
i)        Discovery is necessary to preserve relevant information that might not be available at trial:
(1)   Testimony from ill or elderly people
(2)   Documents which will be destroyed
(3)   Photos of conditions which exist
(4)   A physical thing that might not be there
ii)      To determine issues in controversy
iii)    To find out what testimony and other evidence is available on each of the disputed factual issues
 
f)       Rule/Scope of Discovery
i)        FRCP 26(b) A party may seek discovery of any relevant, unprivileged information if it is reasonably calculated to lead to the discovery of admissible evidence. 
(1)   Lindberger v. General Motors Corp. – inadmissible information is discoverable if it is relevant to the subject matter of the case (the broad scope of discovery). If there is dispute, the information is discoverable if it will lead to discovery of admissible evidence.
 
g)      Time Line of Discovery
i)        Discovery begins after pleadings have been filed, and after a pre-discovery conference under 26(f) has been held. 
ii)      However, in some instances discovery is needed before a pleading – such as address information for a 12(b)(6) motion to dismiss for jurisdiction issues etc.
 
h)     Mandatory Disclosures
i)        Rule 26(a)(1) 14 days after the pre-discovery conference, the parties must produce all mandatory disclosures. (timing may be stipulated differently)
ii)      fact witnesses
iii)    relevant documents
iv)    plaintiff’s damage computation
v)      defendant’s insurance
 
 
i)        Duty to Supplement – See Rule 26(e)
 
j)       Sanctions for discovery – Rule 37
i)        Motion to Compel – Moving the court to compel the other party to submit to discovery requests
(1)   Requirements:
(a)   Motion – can be oral or written to a magistrate who then sends a recommendation to the the district court judge who decides the motion
(b)   Certification (may be oral) that the parties have met and tried to resolve the discovery dispute. 
 
ii)      Sanctions –Issued for failure to comply with an order, failure to disclose mandatory disclosures, failure to participate actively in a discovery plan, and for the spoliation of evidence.
(1)   Discretion of the trial court must have been abused because trial courts are given wide latitude to sanction parties. 
(2)   There is no safe harbor provision. 
 
k)     Limitations
i)        Privileged Information– is not discoverable (protective order)
(1)   Attorney-Client Privilege – very narrowly construed because courts don’t like to suppress information on the basis of attorney-client privilege
(a)   Elements:
(i)     The holder of the privilege must be a client or seeking to be a client
(ii)   The other party must be a member of a bar, or acting as other persons’ attorney
(iii)The communication must relate to a fact of which the attorney was informed by the client outside the presence of strangers for the purposeofsecuring an opinion on the law, legal services, or assistance in a legal proceeding. 
(iv)The client must claim the privilege and must not have waived it.
(b)   Upjohn v. U.S. – The privilege only applies to communications between a client and an attorney who is acting in his professional capacity. 
(c)    Hickman v. Taylor – The communicated information must have been intended to be confidential and others must not be present when it occurs. 
 
(2)   Doctor – Patient, Spousal Privilege, Clergy Privilege
(3)   Privilege Log (required by the court)
(a)   A log stating there are documents that respond to the requests of the adverse party, but they are privileged. 
 
ii)      Rule 26(b)(3) Attorney Work Product (See Rule)
(1)   Definition/Rule: Attorney work product is information prepared in anticipation of litigation and is discoverable on a case by case basis only if:
(a)   There is a substantial need to obtain the information, and
(b)   The information cannot be obtained except by undue hardship
(i)     However, mental impressions, and strategies of counsel cannot be obtained.
 
iii)    FRCP 26(c) Protective orders: A protective order is an order issued to protect a client’s information.
(1)   Marrese v. American Academy of Orthopaedic Surgeons – The courts have broad discretion to balance the interests of the parties when discovery is in dispute – and then to craft discovery orders in accordance.
(2)   Rule: In order to obtain a Protective Order a party must: (See Rule)
(a)   Move the appropriate court
(b)   Certify the parties have tried to work out the dispute
(c)    Show good cause for the protective order, not proof.
(i)     Unless you ask that documents be specifically sealed, they are open to the public.
 
Hickman V. Taylor: Work P