WHERE WE ARE & WHAT WE’RE DOING Pleading Pre-trial Discovery Resolution without Trial Trial & Post-trial Appeal.

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Presentation transcript:

WHERE WE ARE & WHAT WE’RE DOING Pleading Pre-trial Discovery Resolution without Trial Trial & Post-trial Appeal

DISCOVERY Adversary Cultures Seamy Underside of Practice Different practice settings Effects of Discovery Abuse Clients Lawyers The Teaching Challenge Understand strategic uses/abuses Not communicate that is how to behave

DISCOVERY Ensuring Compliance Tension Rules make attorneys responsible for discovery Ideally, keep judges out But judges key to compliance Prevention judicial supervision Deterrence sanctions

DISCOVERY Prevention Limits on discovery Relevance, FR 26(b)(1) Quantity, FR 30(a)(2)(A), FR 33(a) Judicial Supervision FR 26(f) Conference FR 16 Pretrial conferences Obligation of Attorneys FR 26(g) Signature = certification

DISCOVERY Deterrence FR 26(c) Protection orders Procedure Motion Certificate conferred Standard “Good cause shown”

DISCOVERY Deterrence FR 37(a) Motion to Compel Procedure 37(a)(2) Motion Certificate conferred Standard If deponent or party fails to make disclosure/answer question

DISCOVERY Chudasama, p. 549 Why reviewable? Is this a final order? Interlocutory order 28 U.S.C. 1292(b) “controlling question of law “substantial ground for difference of opinion” “substantially advance termination of litigation”

DISCOVERY Chudasama, p. 549 Scope of appellate review? Motion to compel Imposition of sanctions “Abuse of discretion”

DISCOVERY Chudasama, p. 549 According to 11 th Cir. What did trial court do wrong? Why are those actions “abuse of discretion”?

DISCOVERY Chudasama, p. 549 What did the lawyers do wrong?

DISCOVERY Chudasama, p. 549 “Self-help” Why shouldn’t def comply until judge rules?

DISCOVERY Chudasama, p. 549 Trial ct judge page order Remand order “Reassign to different case” What should new judge do?

TAKEAWAYS Black Letter Law FR 26(g) Signature = certification FR 26(f) Conference FR 26(c) Protection orders Parties must confer FR 37(a) Motion to compel FR 37 (b) Failure to comply - sanctions

TAKEAWAYS Big theme Tension between Open discovery v. Adversary system Creating incentives for lawyers to behave