1 Agenda for 6th Class Admin –Slide handouts –Name plates out –Office hours Thursday 2-2:45 Not 2-3PM Relation Back 1995 Exam Discovery –Intro & Scope –Depositions –Relevance Steffan v Cheney Davis v Precoat –Intro to Work Product & Experts

2 Assignment for Next Class I Work Product –FRCP 26(b)(3), –Yeazell , –Writing Assignment for Group 3/ Questions to think about 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 –Optional Glannon , ,

3 Assignment for Next Class II Experts –FRCP 26(a)(2), (b)(4), (c)(1) –Yeazell –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 , ,

4 Last Class Answer –Answer must admit or deny with specificity Supposed to be helpful to plaintiff Supposed to distinguish between issues that need factual investigation and those which don’t –Defendants often get away with denying or saying they lack knowledge about issues they should admit But judges can and sometimes do react negatively –Especially when consequences for plaintiff are severe. PPI Amendment –Usually granted, because advances policy of resolving cases on merits –3 factors Timing Bad faith prejudice

5 Relation Back Relevant only if statute of limitations has run out 15(c)(1)(B). If not changing the party –Relation back if same transaction or occurrence 15(c)(1)(c). If changing party –3 part test Same transaction or occurrence Within 120 days of filing of complaint (plus extensions), defendant had actual notice of lawsuit (even if did not receive service of process) Within 120 days of filing of complaint (plus extensions), defendant knew or should have known that plaintiff made a mistake about identity of proper defendant

6 Relation Back Technically –Amendment issue should be resolved first –If Amendment allowed and statute of limitations has run out, then defendant should make motion for summary judgment based on statute of limitations –Plaintiff should raise relation back in response to summary judgment motion In practice –Defendant opposes amendment by arguing that statute of limitations has run out and that relation back does not apply –Judge denies amendment if statute of limitations has run out and relation back does not apply “justice does not require” amendment if statute of limitations has run out Waste of time to allow amendment if defendant can bring successful summary judgment motion based on statute of limitations

7 Relation Back Questions Summarize Moore v Baker Summarize Bonerb v Caron Foundation Yeazell p. 454ff Qs 4c, 5b

Exam Q1

9 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 s) 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

10 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). Next class –Annoying, embarrassing, oppressive. 26(c)(1) –Court may issue protective order. 26(c)(1)

11 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?

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

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? 13

14 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?

15 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