Goals of discovery: no trial by ambush, fairer results, provide more information to encourage pre-trial resolution.
Scope of discovery is covered in Rule 26(b)(1): "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party...Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."
Privilege limits on discovery
FRE 501 allows the federal courts to define new privileges by interpreting "common law principles…in light of reason and experience." There must be a good public policy reason for privilege. (Jaffee)
The existence of privilege does not protect factual information simply because it was communicated in a privileged conversation. (Upjohn)
Rule 26(b)(5) requires the party opposed to disclosure because of privilege to provide enough detail about the protected material to allow the requesting party to evaluate the privilege objection.
Work product limits on discovery (doctrine, not a privilege)
Attorney work product is protected from disclosure, absent a showing of a particular need for the information, and inability to obtain it through other means. (Hickman)
Opinion work product "cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship." (Upjohn)
Rule 26(b)(3) also protects trial preparation materials. Rule 26(b)(3) test:
STEP #1:
Is the material a "document or tangible thing"?
Was it "prepared in anticipation of litigation or for trial"?
Was it prepared "by or for another party or by or for that other party's representative"?
If the answer to all three is yes, the material enjoys presumptive protection under Rule 26(b)(3). Go on to STEP #2.
STEP #2:
Does the requesting party have a "substantial need" for the material in preparing its case?
Is it unable to obtain equivalent information by other means without "undue hardship"?
If the answer to both is yes, it will have to be produced despite presumptive work product protection unless the answer in STEP #3 is yes.
STEP #3:
Would the material reveal the mental impressions, conclusions, opinions, or legal theories of counsel?
If the answer is yes, it will be protected from discovery in almost all cases.
Privacy limits on discovery
Rule 35, which allows courts to order mental and physical tests, requires that the subject matter of the tests be "in controversy" and the test be requested for "good cause." (Schlagenhauf)
A party has no First Amendment right of access to information made available only for purposes of trying his suit, cannot disseminate. (Seattle Times)
**Full Discovery**
Discovery - the process of compelled exchange of information between parties to a law suit.
Under the federal discovery rules (FRCP 26-37), parties may use six devices to obtain information about the case from other parties and nonparty witnesses .
Automatic disclosure
Requests for production of documents
Interrogatories
Depositions
Requests for admissions
Physical or mental examinations
The FRCP requires require the parties to respond to requests made through the Rules.
Rule 26(b)(1) - the scope of discovery
"Parties may obtain discovery regarding any matter, not privileged, that is relevant to the [claim or defense of any party] (used to say subject matter involved in the pending action), including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."
This rule is pretty broad and can even be widened to the previous parameter if a party is able to demonstrate a need.
Information is discoverable even if it isn't admissible at trial.
For discovery purposes, a matter is relevant if it "appears reasonably calculated to lead to the discovery of admissible evidence."
Since the standard for discovery relevance is tied to the claims and defenses in the case, the parties' pleadings play a crucial role in setting the scope of discovery.
By raising issues in the pleadings, the parties open themselves up to discovery on issues which otherwise might not be discoverable.
Limits on Discovery
Limiting Discovery through the Court
Courts can restrict access
Under the Rule, discovery extends to relevant information "unless otherwise limited by order of the court."
Rule 26(b)(2) allows the court to limit discovery if it is…
Cumulative
Of marginal relevance
Obtainable in another way
Unduly intrusive on the privacy of a party
Sought for an improper purpose
Or if the burden of production outweighs the likely value of the information, in light of various practical realities about the case, etc.
The relevance limit is vague, so much is left to negotiation between counsel for the parties.
Motions to Compel Discovery
If parties cannot agree on the information to be produced, the party making the discovery request may move to compel production of the information on the ground that they are entitled to it under the Rule.
Also, the party resisting production can move for a protective order under Rule 26(c), barring production of the disputed information.
Limiting Discovery Based on Privilege
"Privilege" refers to information that is protected from disclosure under the rules of evidence.
The decision to recognize a privilege represents a policy judgment that maintaining the confidentiality of certain communications is so important that society is willing to sacrifice the evidentiary value of those communications to preserve that confidentiality.
Some examples are the attorney-client privilege, privilege against self-incrimination, psychotherapist privilege, and doctor-patient privilege.
From Jaffee, FRE 501 allows the federal courts to find new privileges by interpreting "common law principles…in light of reason and experience." There must be a public policy reason for construing a new privilege.
Could be used to argue journalist-source privilege, priest-confessor privilege, etc.
The existence of privilege does not protect factual information simply because it was communicated in a privileged conversation.
From Upjohn, "The privilege only protects from disclosure of communications; it does not protect disclosure of the underlying facts by those who communicate with the attorney/therapist."
In other words, just because I confess a murder to my therapist doesn't mean I can refuse to answer questions about it because of privilege.
Rule 26(b)(5) requires parties who object to production of information based on privilege to provide enough detail about the protected material to allow the requesting party to evaluate the privilege objection.
If the applicability of the privilege is challenged, the court can decide whether it is privileged based on the information required under 26(b)(5). In doubtful cases, the court can review documents in camera to determine if privilege applies.
Limiting Discovery through Work Product
In Hickman v. Taylor, SCOTUS held that "attorney work product" should be protected from disclosure, at least absent a showing of a particular need for the information, and inability to obtain it through other means.
The Court was concerned that discovery of trial preparation materials would interfere with lawyers' ability to develop their case strategy in private, and lead lawyers to build their cases through opposing counsel's efforts rather than their own.
Rule 26(b)(3) protects trial preparation materials from discovery through the following analysis...
STEP #1:
Is the material a "document or tangible thing"?
Was it "prepared in anticipation of litigation or for trial"?
Was it prepared "by or for another party or by or for that other party's representative"?
If the answer to all three is yes, the material enjoys presumptive protection under Rule 26(b)(3). Go on to STEP #2.
STEP #2:
Does the requesting party have a substantial need for the material in preparing its case?
Is it unable to obtain equivalent information by other means?
If the answer to both is yes, it will have to be produced despite presumptive work product protection unless the answer in STEP #3 is yes.
STEP #3:
Would the material reveal the mental impressions, conclusions, opinions, or legal theories of counsel?
If the answer is yes, it will be protected from discovery in almost all cases.
Although outside of the jurisdiction of Rule 26(b)(3), most intangible work product enjoys protection under the standards established in Hickman.
"Opinion work product" (the mental impressions of counsel) are usually protected from disclosure in almost all cases.
Limiting Discovery through Privacy
Rule 35 allows a court (sua sponte or by request) to order a party to submit to a mental or physical examination.
Schlagenhauf (even though he hadn't asserted his mental or physical condition in a claim or defense) refined this rule.
Holding: The "in controversy" and "good cause" requirements of Rule 35 are not met by mere conclusory allegations of the pleadings--nor by mere relevance to the case--but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.
Thus, courts don't want just anyone to be subject to exams because of privacy issues. Parties seeking an exam must…
Make an affirmative showing that the mental or physical condition was in controversy and
Show that there was good cause for the examinations requested.
Seattle Times held that discovery could be compelled on a sensitive issue but that the information obtained in discovery could not be disseminated to the general public.
Information gathered only by the virtue of the discovery process should not be considered public knowledge.
A party has no First Amendment right of access to information made available only for purposes of trying his suit.
Protective orders should be utilized by judges to protect sensitive information.
Rule 26c authorizes the judge “for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”
Methods of Discovery
Automatic Disclosure (Rule 26(a))
FRCP 26(a) requires parties to exchange basic information about the case without a request from another party. It requires…
Initial disclosures (Rule 26(a)(1)) (work product applies here too)
The identity of individuals "likely to have discoverable information that the disclosing party may use to support its claims or defenses" (a witness not included may be barred from testifying by Rule 37(c)(1))
Copies or descriptions of documents and things in the possession, custody, or control of the disclosing party that the party may use to support its claims or defenses (must disclose supporting evidence, not adverse evidence)
A computation of damages claimed, making available for inspection and copying the documents and other materials on which the computation is based.
Any insurance agreement under which an insurer may be liable to satisfy all or part of a judgment in the action.
Disclosure of expert testimony (Rule 26(a)(2))
Pre-trial disclosures
The parties are required to meet and confer about these disclosures and other discovery issues and file a written report with the court outlining their plans for discovery (Rule 26(f)). Until this meeting, the parties are barred from taking discovery by other means.
Supplementation of initial disclosures
Rule 26(e)(1) says, "A party is under a duty to supplement at appropriate intervals its disclosures under 26(a)(1) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing."
Penalties for non-disclosure include possible exclusion of the evidence or other sanctions.
Interrogatories to Parties (Rule 33)
Interrogatories are questions sent by one party to the case to be answered by another (they cannot be used to obtain info from nonparties).
Since they are answered by counsel for the other side, they should be written precisely in order to get a precise answer. They are useful for obtaining factual information like names of witnesses, itemizations of damages, dates of events, and locations of known documents.
Contention interrogatories asked for opinion and application of law to fact.
Rule 33(d) allows for these, but the court can allow a party to delay in answering them until discovery is complete.
"Specify each act upon which the P relies in support of her contention that the D breached the contract."
An interrogatory to a corporate party can be more effective than a deposition since it requires them to "furnish such information as is available to the party."
Parties are allowed to object to interrogatories if they feel the answer is not in the scope of discovery or protected from disclosure.
Requests for Production of Documents (Rule 34)
Rule 34 allows parties to request production of documents from other parties that are relevant to claims and defenses in the case. The request must describe the documents sought with "reasonable particularity."
To deal with the burdensome nature of these requests, Rule 34(b) authorizes a party to comply with a Rule 34 request by producing the relevant documents as kept in the usual course of business. However, opening up one's file room carries risks…
It provides the other party with wide access to both relevant and irrelevant files.
Allowing access to the files waives the producing party's right to object to production of documents that are protected from discovery.
Depositions
A deposition is the examination of a witness under oath and is the most effect means of previewing the detailed testimony of witnesses.
Purposes of depositions
Get the witness on the record, can impeach during trial with deposition testimony
Allow deposing counsel to learn what the witness knows and to ask follow-up questions to get the details of what the witness knows
Gives opposing counsel the opportunity to look the witness in the eye, to form a judgment about their credibility at trial
Parties do not usually depose their own witnesses or cross-examine witnesses as to not reveal their line of reasoning.
Parties may depose their own witnesses and use that testimony at trial if they will be unavailable for trial (Rule 32(a)(3)(B)).
