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

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

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

4. 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

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

6. 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

7. 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

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

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

10. 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”

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

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

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

14. 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”

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