1 Agenda for 6th Class Admin –Slide handouts –Name plates out –Lunch Friday, 12:30 outside Rm 433 (Faculty Lounge –Make up class This Wednesday, 9/17, Rm 3, 12-1:50 Discovery –Intro & Scope –Depositions –Relevance Steffan v Cheney Davis v Precoat –Privilege –Privacy Stalnacker –Intro to Work Product & Experts

2 Assignment for Next Class I Work Product –FRCP 26(b)(3), –Yeazell , –Writing Assignment / Questions to think about Briefly summarize Hickman What discovery device, if any, did Fortenbaugh use to secure statements from the survivors? If petitioner sent the tug owners interrogatories requesting detailed summaries of any witness statements, would such discovery be barred by the reasoning in Hickman? Would it be barred by FRCP 26(b)(3). PP. 495ff Q1, 3, 4b-d, 5 –Optional Glannon , ,

3 Assignment for Next Class II Experts –FRCP 26(a)(2), (b)(4), (c)(1) –Yeazell –Questions we will discuss in class / writing assignment : Briefly summarize Thompson and Chiquita –Incorporate into your summaries of Thompson and Chiquita answers to p. 502 question 1 499ff Qs 1-4; 502ff Qs 2-3. Note that 503 Q3 should refer to 26(b)(4)(B), not 26(a)(2)(B). Suppose plaintiff has lung cancer which he thinks might have been caused by exposure to asbestos. Plaintiff’s lawyer has a doctor extract 10 lung samples, which she then sends to 10 pathologists. 9 say the lung cancer was caused by smoking, but the 10 th says it was caused by asbestos. The lawyer discloses the 10 th pathologist as one who will testify at trial, but says nothing about the other 9 to the defendant. Can defendant’s lawyer find out that plaintiff consulted 10 pathologists? Can she find out their identities? Can she depose the other 9? Why is this important? –Optional. Glannon , ,

4 Last Class Amendment & Relation Back –Analyze all factors / requirements –Don’t analyze relation back unless plaintiff is bringing claim barred by statute of limitations –If statute of limitations problem Necessary to analyze amendment and relation back separately But no relation back is reason to deny amendment 1995 Exam –Best answers Saw multiple reasons for 12(b)(6) Identified invalid legal theory as most strategically advantageous –On exam, should mention other grounds for 12(b)(6) »Missing element, conclusory allegations, etc. –In practice, need to decide whether worth client’s money, court’s time, and possibility of alienating judge and opposing counsel –Answer, etc.

5 Discovery Biggest innovation of 20 th century procedure Costs and benefits –Enormously expensive, time consuming, intrusive –Improves accuracy and thus enhances justice, Promotes settlement Main methods –Depositions, requests for documents (including s) Largely unsupervised –Lawyers make requests directly to opposing counsel Judge’s permission not generally required –Lawyers respond directly to opposing counsel Judge does not ordinarily see –Lawyers can bring problems to judge’s attention –Motions to compel, motions to protect, motions for sanctions –But judges don’t like to be involved –Often magistrate judges handle Discovery does not preclude other means of investigation

6 Discovery: Scope FRCP 26(b)(1). Any non-privileged matter relevant to claim or defense Privileges – attorney-client, doctor-patient, self-incrimination Relevance – Information is relevant if it helps prove or disprove a claim or defense –Need not be determinative Hit and run accident. Plaintiff says offending car was yellow. Fact that defendant owns yellow car is relevant –Sufficient that reasonably calculated to lead to admissible evidence –May do broader discovery relevant to “subject matter involved in the action” with court permission Limitations –Privilege –Special rules for work product and experts –Cost outweighs likely benefit. 26(b)(2)(C )(iii) –Annoying, embarrassing, oppressive. 26(c)(1) –Court may issue protective order. 26(c)(1)

7 Discovery: Depositions Much like oral testimony at trial –Deponent sworn, opposing counsel present, court reporter transcribes –Lawyer asks questions, deponent must answer –No judge Only depose witnesses controlled by or friendly to opposing side –Don’t need discovery to get info from own side or friendly witnesses –Deposition is expensive and other lawyer present Only supposed to instruct deponent not to answer for 3 reasons. FRCP 30(c)(2) –To protect privilege –To enforce court ordered limitation discovery –To made motion to court under FRCP 30(d)(3) –Otherwise, can object to question (e.g. irrelevant, hearsay, embarrassing, duplicative), but deponent must answer But if question is really improper, is opposing side likely to complain to judge?

8 Questions on Discovery Briefly summarize Davis v Precoat Metals and Stefan v Cheney Pp. 463ff. Q1-4 Pp. 488ff Q1 Briefly summarize Stalnaker Pp Qs 2, 4b

9 Work Product Work Product 26(b)(3) –No discovery of “documents and tangible things prepared in anticipation of litigation or for trial … [unless] substantial need” –Designed to protect lawyers notes from discovery But maybe broader?

10 3 Kinds of Experts Expert who will testify at trial –Heightened discovery –FRCP 26(a)(2)(A). Disclosure of name of testifying expert –FRCP 26(a)(2)(B). Testifying expert must prepare report and report must be disclosed –FRCP 26(b)(4)(A). Opposing party may depose testifying expert Non-testifying expert, hired in anticipation of litigation or to prepare for trial –Treated like other work product –FRCP 26(b)(4)(D). Non-testifying expert, hired in anticipation of litigation or to prepare for trial, is shielded from discovery Unless “exceptional circumstances” 26(b)(4)(D)(ii) Experts not hired in anticipation of trial –Subject to discovery like ordinary witnesses –E.g. engineer who designed product which may be defective; doctor who examined patient for treatment (not for litigation purposes) –Disclosure of facts and opinions, 26(a)(2)(D) But not as extensive disclosure as required of testifying experts