WHERE WE ARE & WHAT WE’RE DOING Knowledge is power Discovery = Access to knowledge

WHERE WE ARE & WHAT WE’RE DOING Discovery What is it? Role in modern litigation?

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

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

WHERE WE ARE & WHAT WE’RE DOING Federal Rules Amendments 1970 1983 1993 2000 Causes & consequences System under stress Crumbling consensus Compromises Rule Complexity

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

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

DISCOVERY Relevance & Privilege Why did ct find broad discovery request Relevant in Blank v. Sullivan & Cromwell? Irrelevant in Steffan v. Cheney?

DISCOVERY Relevance Blank v. Sullivan & Cromwell, Supp. 417 Info sought Method Steps to resist Def’s argument Ct’s response

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”

APPELLATE REVIEW Scope of review How did Steffan reach appellate court?

DISCOVERY Relevance Johnson Matthey, Inc. Supp. p. 422 Info sought Method Steps to resist FR 26(b)(1) Standard for discoverability

DISCOVERY Relevance Relevance isn’t abstract concept Information relevant to Claim (elements?) Defenses Subject matter of action

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”

TAKEAWAYS “The Law is a seamless web” Civ Pro discovery rules depend on Law of evidence Law governing claims/defenses