1. Agenda for 7th Class Admin Slide handouts Name plates out Friday lunch
Review of Relation Back
1995 Exam
Discovery
Intro & Scope
Depositions
Relevance
Intro to
Work Product
Experts

2. Assignment for Next Class I
Work Product
FRCP 26(b)(3),
Yeazell
Writing Assignment for Group 4/ Questions to think about
Submit Writing Assignment to Blackboard
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,
Optional
Glannon , ,

3. Assignment for Next Class II
Experts
FRCP 26(a)(2), (b)(4), (c)(1)
Yeazell 502-8
Questions we will discuss in class / writing assignment for Group 4
Briefly summarize Thompson and Chiquita
508ff Qs 1-3. Note that Q3 should refer to 26(b)(4)(D), 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 10th says it was caused by asbestos. The lawyer discloses the 10th 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. 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

5. 1995 Exam Q1

6. Discovery Biggest innovation of 20th 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

7. 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)

8. 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?

9. Questions on Discovery
Briefly summarize Favale, Price v. Leflore, and Rengifo
Yeazell pp. 485ff Q1, 2, 4
Yeazell pp. 491ff Q1, 2c-e, 3,

10. 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. 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?

12. 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 12 12