Some Controversial Propositions. Agree or Disagree? The availability of broad discovery significantly infringes on the parties’ liberty, privacy, and.

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Presentation transcript:

Some Controversial Propositions

Agree or Disagree? The availability of broad discovery significantly infringes on the parties’ liberty, privacy, and property rights?

The availability of broad discovery significantly increases the likelihood that factual issues will be resolved accurately? Agree or Disagree?

The availability of broad discovery makes it easier for the parties to narrow the issues for trial? Agree or Disagree?

The benefits of the broad discovery system, outweigh the system’s adverse effects? Agree or Disagree?

Legitimate Objectives of Discovery: Discover evidence to use In your case in chief To cross-examine (impeach) To rebut (contradict) Identify and Limit Opponent’s Evidence so that you can Move for SJ Object to Evidence Prepare your rebuttal Prepare your cross-X Preserve evidence so it can be used If witness dies etc If you prefer deposition to live testimony

Illegitimate Objectives of Discovery: Impose financial (& other) costs on opponent in order to Force non-merits-based settlements Hurt the opponent in non- merits-based ways. d Obtain information or other advantages for reasons other than preparing for trial.

Balance Before the Federal Rules

Balance Under the Federal Rules Before 1993

How does the current system try to balance the advantages and disadvantages?

Overview of Current Steps Pleadings Rule 26(f) Meeting 16(b) Scheduling Order Initial Mandatory Disclosures Party Initiated Discovery Signature & Sanctions Mandatory Pretrial Disclosures Final Pretrial Conference

Current Steps in Federal Discovery Pleadings Disclose general theory Rule 11 Often eliminate some issues

Current Steps in Federal Discovery Rule 26(f) Meeting Should be early Arrange mandatory disclosure Make discovery plan Limit subjects Limit time and manner Set case specific rules

Current Steps in Federal Discovery Rule 16(b) Scheduling Conference and Order Often limits issues and discovery Often authorizes discovery See 16(c)

Current Steps in Federal Discovery Initial Mandatory Disclosures Fact witness ID Document ID Misc Expert Information

Current Steps in Federal Discovery Party initiated discovery No ct order needed unless Other party objects Medical exam Exceeds certain limits Inconsistent with plan or earlier orders

Current Steps in Federal Discovery Signature (Rule 26(g)) Disclosures & responses Requests Consistent with rules Authorized by law Not unreasonably burdensome Sanctions and Motions to Compel (Rule 37)

Current Steps in Federal Discovery Mandatory Pre-Trial Disclosures 30 days before trial (usually) ID what will really be presented

Current Steps in Federal Discovery Final Pretrial Conference