Civil Procedure II Outline

Civil Procedure II Outline

I. Discovery
A. Rule 26
(1) Initial Disclosures
(A) In General. Except as exempted by Rule 26(a)(1)(E) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(ii) a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
(iii) a computation of each category of damages claimed by the disclosing party — who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
(2) Discovery Plan: Rule 26(f) requires meet and confer before first scheduling conference to explore discovery plan. Failure to do so in good faith is sanctionable by award of reasonable expenses, including attorney’s fees, caused by failure.
(3) Discovery Limits: Possible to get protective order against otherwise discoverable material Rule 26(b)(2). This rule gives court explicit authority to limit number of deposition, interrogatories and requests to admit. Court can limit discovery even upon own initiative if unreasonably cumulative or duplicative, or more easily obtainable from another source; sought too late; burden or expense of proposed discovery outweighs likely benefit.
(4) Limiting Discovery: If inappropriate discovery being sought can make motion for protective order. Must meet and confer before making motion. If good cause shown, court may make any order which justice requires to protect movant from annoyance; embarrassment; oppression; undue burden; undue expense. Non-exhaustive list of possible protections court may order appear in Rule 26(c):
– discovery not be had;
– discovery may be had only on specified terms and conditions;
– discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
– certain matters cannot be inquired into, or scope of inquiry limited
– discovery be conducted with only specified persons present;
– deposition, after being sealed, be opened only by court order;
– trade secret or other confidential research, development,
or commercial information not be revealed or be revealed only in a designated way; and,
– parties simultaneously file specified documents or information.
(5) Compelling Discovery: Can file motion to compel in response to inadequate compliance with discovery request. Evasive or incomplete disclosure, answer or response is treated as a failure to disclose, answer, or respond. Rule 37(a)(3).
(6) Discovery Sanctions: Rule 26(g) applies a Rule 11 like regime to discovery and allows sanctions for discovery abuse. Rule 26(g)(2) attorney must sign every discovery request, response, or objection which certifies that to the best of signer’s knowledge, information and belief, formed after a reasonable inquiry. Rule 26(g)(3) court can sanction attorney or client for violation of Rule 26(g)(2), which may include costs and attorney’s fees.

B. Relevance
Relevance is fundamental discovery requirement.
Rule 26(b)(1): “Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party…For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.”
(a) To be discoverable, information must be relevant, either to a claim or defense, or if judicial permission is granted, to the subject matter of the lawsuit.
(b) Relevance to the claim or defense is a narrower standard then relevance to the subject matter.
C. Privilege
In addition to being relevant information, it must be not privileged.
Privileged matters are not subject to discovery, even if relevant (rule 26(b)(1).
The law recognizes many types of privileges:
-attorney/client
-doctor/patient
-therapist/patient
-priest/penitent
-marital
-5th amendment, self-incrimination clause

If applies, communications permanently protected unless waived.
Very easy to waive – do so by communicating privileged information outside attorney/client relationship.
If waived, it means it is not privileged and therefore discoverable.
Only protects specific communication, doesn’t protect underlying facts.

Burden of Proof – party asserting privileg