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

2. COURT OBSERVATIONS The Summary Judgment Process Timing: after discovery Motion-response-reply “no genuine issue of material fact” Declarations/depositions Oral argument Only if requested

3. COURT OBSERVATIONS Quality of Lawyering Written Materials Oral Argument

4. COURT OBSERVATIONS Strategy SJ as “discovery” of legal theories Partial summary judgment

5. COURT OBSERVATIONS Strategy – winnowing process No genuine issue of material fact 1987 Legal issue as to standard Disability evaluation v. treatment Factual issues Information Dr’s provided Are factual issues “material”?

6. COURT OBSERVATIONS Strategy – winnowing process No genuine issue of material fact 1989 Visit for treatment No legal issue as to standard Factual issues Who did the exam? Causation? Are factual issues material? Negligence established anyway? Failure to request chart?

7. DISCOVERY Scope & Limits 26(b)(1) General Not privileged Relevant to Claim/defense Subject matter 26(b)(2) Court discretion to limit Individual case Local rule - #requests to admit 26(b)(3) & (4) Exceptions Trial Preparation Materials Experts

8. DISCOVERY FR 26(b)(4) Trial Prep Experts Experts Fact W’s v. opinion W’s Fact - FR 26(a)(1)(A)

9. DISCOVERY FR 26(b)(4) Trial Prep Experts Experts Testifying experts “opinions may be presented at trial” FR 26(a)(2) – disclose w/ report FR 26(b)(3) – depose after report provided Non-testifying experts “retained or specially employed” FR 26(b)(4)(B) discovery only if exceptional circumstances Impracticable to obtain info by other means

10. DISCOVERY Thompson, p. 539 Method Information sought Pl’s procedural response Category of expert Discovery allowed?

11. DISCOVERY Chiquita, p. 541 Method Information sought Def’s procedural response Category of expert Discovery allowed?

12. SKILLS Distinguishing Cases Why different results? Distinguish cases on their facts Thompson Chiquita

13. TAKEAWAYS Black Letter Law FR 26(b) (4) Exception to broad scope of discovery Applies work-product concept to experts Protects Non-testifying experts Not facts Allows discovery if exceptional circumstances Impractical to obtain facts/opinions by other means

14. TAKEAWAYS Big theme Tension between Open discovery v. Adversary system Each party prepare own case Discourage expert evaluations “Undue prejudice”