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WHERE WE ARE & WHAT WE’RE DOING
Knowledge is power Discovery = Access to knowledge
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WHERE WE ARE & WHAT WE’RE DOING
Discovery What is it? Role in modern litigation?
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WHERE WE ARE & WHAT WE’RE DOING
Pleading Pre-trial Discovery Resolution without Trial Trial & Post-trial Appeal
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WHERE WE ARE & WHAT WE’RE DOING
Big themes Avoiding “trial by ambush” Access to courts Speed Low-cost v. “Accurate” decisions Controlling strategic behavior Lawyer job satisfaction
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WHERE WE ARE & WHAT WE’RE DOING
Federal Rules Amendments 1970 1983 1993 2000 Causes & consequences System under stress Crumbling consensus Compromises Rule Complexity
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DISCOVERY FR 26(b) Discovery Scope & Limits
Parties may obtain discovery of any matter not privileged relevant to the claim or defense of any party
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DISCOVERY FR 26(b) Discovery Scope & Limits
For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action
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DISCOVERY Relevance & Privilege
Why did ct find broad discovery request Relevant in Blank v. Sullivan & Cromwell? Irrelevant in Steffan v. Cheney?
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DISCOVERY Relevance Blank v. Sullivan & Cromwell, Supp. 417
Info sought Method Steps to resist Def’s argument Ct’s response
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DISCOVERY Relevance Steffan v. Cheney, Supp. p. 418 Info sought Method
Steps to resist Trial Ct’s response Why def thinks relevant? Why D.C. Cir. thinks irrelevant? “Scope of review”
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APPELLATE REVIEW Scope of review
How did Steffan reach appellate court?
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DISCOVERY Relevance Johnson Matthey, Inc. Supp. p. 422 Info sought
Method Steps to resist FR 26(b)(1) Standard for discoverability
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DISCOVERY Relevance Relevance isn’t abstract concept
Information relevant to Claim (elements?) Defenses Subject matter of action
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TAKEAWAYS Black Letter Law (the “gist”) FR 26(b) (1) Discovery scope
2 stages As of right “relevant to … claim or defense” Court’s discretion “relevant to … subject matter”
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TAKEAWAYS “The Law is a seamless web”
Civ Pro discovery rules depend on Law of evidence Law governing claims/defenses
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