CIVIL PROCEDURE FALL 2005 SECTIONS C & F CLASS 21 DISCOVERY II October 11, 2005

REVIEW - WHAT MAY BE OBTAINED THROUGH DISCOVERY? FRCP 26(b): Unless other limits by court order, any matter that 1. Is RELEVANT to the CLAIM OR DEFENSE of any party, or (where ordered by court FOR GOOD CAUSE, is RELEVANT to the SUBJECT MATTER involved in the action) AND DOES NOT FALL WITHIN EXCEPTIONS in (2) and (3). What are these exceptions?

LIMITING SCOPE OF DISCOVERY UNDER 26(b)(2) CAN BE DONE BY Objection to discovery request (e.g. answer interrogatory, response to request for documents) Motion for a protective order under 26(c) accompanied by a certification that parties met prior to filing of motion and attempted to resolve dispute without intervention by the court Court on own initiative

WORK PRODUCT PRIVILEGE FRCP 26(b)(3) When Hickman was decided, FRCP did not contain any exception to discovery for attorney work product Work product doctrine in Hickman has been codified in FRCP 26(b)(3).

TYPES OF WORK PRODUCT 1. ORDINARY WORK PRODUCT: Documents prepared in anticipation of litigation by a party’s representative Are these discoverable? If so, in what circumstances? 2. OPINION WORK PRODUCT Attorney’s thought processes in preparing a case Are these discoverable? If so, in what circumstances

WRITTEN STATEMENTS BY PARTIES TO LAWYER When can a party get a copy of her own statement? When can a witness get a copy of her own statement?

HYPO Polly was injured when she was struck by a bus owned by the Blue Bus Company. Polly then sued Blue Bus Co. in federal court. Immediately after the accident, Miles, a vice- president of Blue Bus Co., went to the scene and made a full investigation, including interviews with witnesses and measurements of the accident location. Miles made a written report to the directors of Blue Bus. Can Polly obtain Miles’ report?

DISCOVERY TECHNIQUES I Now that we understand the SCOPE of what is discoverable, we will study the major discovery procedures used in federal court Today: information discovery and automatic disclosures.

INFORMAL DISCOVERY

AUTOMATIC DISCLOSURE RULES A radical change (1993) Many more changes (2000) Purpose?

WHAT MUST BE DISCLOSED AT THE OUTSET OF THE CASE UNDER 26(a)?

1. WITNESSES – 2. DOCUMENTS 3. DAMAGES COMPUTATIONS 4 INSURANCE

TIMING When must these initial disclosures under 26(a)(1)(A)-(D) be made?

TIMING Within 14 days (i.e. shortly) after the discovery meeting (conference) required by Rule 26(f) unless a different time is set by court order or stipulation When is the discovery meeting?

Initial Disclosure Schedule Court may schedule initial scheduling conference for parties and judge under R. 16(a) Under 26(f), Parties conduct discovery meeting at least 21 days before scheduling conference is held. Parties can’t seek discovery under rules before this discovery meeting. (see26(d)). Within 14 days after meeting, parties must usually make initial disclosures Scheduling conference is held with parties and judge where judge sets timetable for the rest of discovery

Discovery Conference Rules thus anticipate that discovery plan will be included in the scheduling order court must issue within 120 days after service of the complaint.

HOW MUCH INFO. MUST BE DISCLOSED Sam has not finished investigating his case by the time limit for automatic disclosures under 26(a)(1). Does he still have to comply with the automatic disclosures? Why or why not?

WHAT MUST BE DISCLOSED AS TRIAL APPROACHES?

ID of experts (FRCP 26(a)(2)(A)) and Experts reports (FRCP 26(a)(2)(B)) ID of trial witnesses that party will use or may use (except solely for impeachment) and designations of deposition testimony (FRCP 26(a)(3)(A) & (B)) and documents/exhibits that will/may be evidence at trial (exhibits) (FRCP 26(a)(3)(C)) When must these expert disclosures be made? When must these pretrial disclosures be made?

TIMING OF THESE DISCLOSURES UNDER 26(2) and 26(3) Timing for disclosures re: experts - 90 days before trial in absence of stipulation/court order – or if solely to rebut other party’s evidence, 30 days after other party’s disclosure. Timing for pretrial disclosures - 30 days before trial in absence of court order. Objections w/in 14 days thereafter. Objections not made other than relevance/prejudice are waived.

FORM OF DISCLOSURES Unless court orders otherwise, under FRCP 26(g) & 26(a)(4), initial disclosures -under FRCP 26(a)(1) - (3) MUST BE: In writing Signed by attorney/unrepresented party NB SANCTIONS RISK HERE – see 26(g)(3) Served on other parties – 26(a)(4) Only the pretrial disclosures must be filed with court – 26(a)(3)

FAILURE TO MAKE AUTOMATIC DISCLOSURES What happens if a party fails to make the required automatic disclosures under 26(a)?