1. 1 Agenda for 6th Class Admin –Slide handouts –Name plates out Review of Relation Back 1995 Exam Discovery –Intro & Scope –Depositions –Relevance Steffan v Cheney Davis v Precoat –Work Product

2. 2 Assignment for Next Class I Experts –FRCP 26(a)(2), (b)(4), (c)(1) –Yeazell 497-503 –Questions we will discuss in class / writing assignment for Group 4 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). How would you argue that Chiquita was wrongly decided as a matter of textual interpretation and/or policy? 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 415-17, 420-21, 432-34

3. 3 Assignment for Next Class II FRCP 26(g), 30(c)-(d), 37 Yeazell 508-512 Handout Questions to think about / Writing assignment –Yeazell p. 510 Qs 1-5 –Questions on Phillips (next slide)

4. 4 Questions on Phillips 1)In Phillips v Manufacturers Hanover Trust, what rule, if any, did defendant’s counsel violate? Be sure to consider FRCP 11, 26(g), 30(c),30(d), 37(a)(4), 37(b) and 37(d) and explain why each rule was or was not violated. Note that the Rules have been amended several times since 1994, so the reasoning in the opinion may no longer be valid. 2)For each rule that you think the defendant’s lawyer violated, what is the sanction? Are sanctions mandatory or discretionary? 3)Did the magistrate judge make the right decision in Phillips v Manufacturers Hanover Trust? If you were a law clerk to Judge Francis what would you have advised him to do? 4)What, if anything, should the plaintiff’s lawyer in Phillips v Manufacturers Hanover Trust have done differently? 5)If the plaintiff’s lawyer asked the district court judge to review the magistrate judge’s decision, is the district court judge likely to affirm the magistrate judge’s decision

5. 5 Review of Relation Back Relevant only if statute of limitations has run out between filing of original complaint and filing of amended complaint 15(c)(1)(B). If not changing the party: same transaction or occurrence 15(c)(1)(c). If changing party: 3 part test Technically, relation-back should be a summary judgment issue –Defendant argues for SJ based on statute of limitations –Plaintiff argues no SJ, because of relation back In practice, parties argue and judges consider relation back at time of amendment –If statute of limitations has run out, amendment allowed only if 15(a) analysis satisfied --- timing, fault, prejudice AND the amendment relates back under 15(c) –If statute of limitations has run out, amendment denied if 15(a) analysis NOT satisfied OR no relation back Judge may rely on EITHER 15(a) or 15(c) to deny amendment –May ignore 15(a) or 15(c), if other points toward denial

6. 6 1995 Exam Q1

7. 7 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 emails) 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

8. 8 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 Limitations –Proportionality. 26(b)(1) Amount at stake, relative access to info, resources, importance to merits, burden/expense versus benefit –Privilege. 26(b)(1) –Special rules for work product and experts. 26(b)(3), (b)(4). –Annoying, embarrassing, oppressive. 26(c)(1) –Court may issue protective order. 26(c)(1)

9. 9 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?

10. 10 Questions on Discovery Briefly summarize Davis v Precoat Metals and Stefan v Cheney Pp. 463ff. Q1-4 Pp. 488ff Q1

11. Questions on Discovery –Suppose a woman sues her employer claiming a hostile environment, because her supervisor pressured female employees to sleep with him, either through promises of promotion or favorable treatment at work, or through threats of adverse job action. Note that if the supervisor slept with female employees consensually without pressure or work-related incentives, that would not be evidence of a hostile work environment. In answering the following questions, consider arguments you can make based on FRCP 26(b)(1), (b)(2), or (c). Think of arguments for both sides. –May the plaintiff’s attorney depose other female workers at the same job site and ask them if they slept with the supervisor? –May the plaintiff’s attorney depose other female workers at the same job site and ask them to list all the people they had slept with in the last five years? –Can you think of a question more directly targeted at uncovering evidence of a hostile environment? If so, is the plaintiff’s attorney required to ask this more targeted question? 11

12. 12 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?

13. 13 Work Product Questions –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

14. 14 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

15. 15 Discovery Sanctions I Rule 11 does not apply to discovery. See 11(d) FRCP 26(g). Very similar to Rule 11, except applies to written aspects of discovery –Discovery requests, responses, or objections must be signed by lawyer –Disclosure is complete –Requests, responses, or objections are warranted by law or non-frivolous argument to change the law, not for improper purpose, not unreasonable or unduly burdensome –Sanctions are mandatory. May include fees to opposing counsel FRCP 30(c)-(d). Depositions –In general there are two sets of lawyers in a deposition Lawyer taking the deposition Lawyer defending the deposition –Lawyers can object in deposition, but can only instruct deponent not to answer “when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion to the court.” 30(c)(2)

16. 16 Discovery Sanctions II Depositions (continued) –30(d)(2). Sanctions on person who “impedes, delays, or frustrates” deposition –30(d)(3). May terminate or suspend deposition to make motion to judge to limit deposition FRCP 37(a) motion to compel –If opposing party refuses requested discovery –If granted, court must award attorneys fees FRCP 37(b). Discretionary sanctions for failure to obey court order –Can be severe, including dismissal, default judgment, or contempt (imprisonment)

17. 17 Discovery Sanctions III Lots of other sanctions provisions –37(c) Sanction for failure to disclose, supplement, or admit Does not apply to depositions –37(d) failure to respond to discovery requests Failure to attend deposition Failure to respond at all to interrogatories Failure to respond at all to request for documents or tangible things 26(g) wouldn’t apply because no paper to sign