1. CIVIL PROCEDURE CLASS 14 Professor Fischer Columbus School of Law The Catholic University of America October 9, 2001

2. WRAP-UP OF LAST CLASS We finished learning procedure for bringing third parties into an action under FRCP 14 (impleader) We began to learn about the SCOPE of discovery under the FRCP by examining the concept of RELEVANCE under FRCP 26(b) We identified a change in the concept of relevance that was implemented by the 2000 amendments, and considered its potential effects.

3. WHAT WILL WE DO TODAY? Review impleader by doing Practice Exercise 13 Continue to learn about the scope of discovery under Rule 26(b). We will discuss relevance, limits on discovery, and privilege, focusing on attorney work product privilege Begin our study of specific discovery techniques by learning about initial disclosures and, time permitting, depositions, and interrogatories

4. Practice Exercise 13: Impleader Is the third party complaint properly drafted? Since the P has settled with the City, can Ultimate Auto (“UA”) still implead the garage? If P settles the claim against UA can our client still recover on the third party claim against McGill’s Garage? If so, what will UA have to prove in such a lawsuit? What are the overall strategic gains/losses by settling/not settling?

5. RELEVANCE What is “relevance”? Undefined in rule Pre-2000 amendments was defined very broadly as e.g. “germane” Post-2000 amendments appear to narrow concept of relevance Do you think that these changes will have a real effect on the scope of discovery?

6. RELEVANCE AND ADMISSIBILITY Includes written matter, things, ID of persons with knowledge of matter, information about location of persons with knowledge of discoverable materials - including investigators To be discoverable, must information be admissible at trial under applicable rules of evidence?

7. A PROPOSED RULE CHANGE THAT DID NOT MAKE IT In September 1999, one proposed change to the FRCP was rejected by the Judicial Conference. The proposal would have permitted discovery outside the boundaries of relevant subject matter if the requesting party agreed to bear the cost. The Conference decided judges already have authority to do that.

8. LIMITATIONS ON DISCOVERY OF RELEVANT MATTER A. UNREASONABLY BURDENSOME MATERIAL: FRCP 26(b)(1), 26(b)(2) B. PRIVILEGED MATERIAL: FRCP 26(b)(1), 26(b)(3) What are the specific limitations on discovery under FRCP 26(b)(2)?

9. LIMITATIONS ON DISCOVERY 1. UNREASONABLY BURDENSOME Discovery is “unreasonably cumulative or duplicative” Discovery obtainable from more convenient source Party seeking discovery has had “ample opportunity” to obtain matter on discovery Burden of discovery outweighs benefits Limits on #s of depositions, interrogatories FACTORS TO CONSIDER: needs of case, amount in controversy, parties’ resources, importance of issues at stake, importance of discovery in resolving issues

10. ASSERTING LIMITATIONS UNDER 26(b)(2) What are the ways that the limitations on discovery can be asserted under Rule 26(b)(2)?

11. ASSERTING LIMITATIONS UNDER 26(b)(2) Objection to discovery request (e.g. interrogatory) Motion for a protective order under 26(c) accompanied by a certification that parties met prior to filing of motion and attempted to resolve dispute without intervention by the court

12. LIMITATIONS ON DISCOVERY: 2. PRIVILEGE Some materials are protected from discovery under FRCP(b)(1) and (3), e.g.: attorney-client privilege or work product privilege There are other types of legal privilege (e.g. priest/penitent, physician/patient.self- incrimination, various government privileges, spousal privilege]. These depend on the applicable rules of evidence) Privilege can be waived

13. HICKMAN v. TAYLOR (1947): FACTS What are the key facts of this case? What 2 kinds of statements were sought on discovery by the Plaintiff from the tug owners? Is this material relevant? Privileged under attorney-client privilege?

14. HICKMAN v. TAYLOR (1947): ISSUES/ARGUMENTS Why was Fortenbaugh held in contempt by the District Court? What is the procedural issue for the U.S. Supreme Court? Describe the arguments of the parties on this issue.

15. HICKMAN v. TAYLOR (1947): RULING How does the Court rule? What is the reasoning of the majority? The concurrence? Explain how the Court differentiates between oral and written statements in ruling in this case.

16. WORK PRODUCT PRIVILEGE FRCP 26(b)(3) When Hickman was decided, FRCP did not contain any exception to discovery for attorney work product Work product doctrine in Hickman has been codified in FRCP 26(b)(3).

17. TYPES OF WORK PRODUCT 1. ORDINARY WORK PRODUCT Documents/tangible things prepared in anticipation of litigation by a party or party’s representative Are these discoverable? If so, in what circumstances? 2. OPINION WORK PRODUCT Attorney’s thought processes in preparing a case Are these discoverable? If so, in what circumstances

18. WORK PRODUCT PRIVILEGE Does the work product doctrine in FRCP 26(b)(3) apply to nonlawyers, such as insurance adjusters and investigators? What about a witness? A party?

19. WRITTEN STATEMENTS BY PARTIES TO LAWYER Are these discoverable? If so, in what circumstances? NOTE: a party’s statement can always be used as direct evidence at trial by an opposing party even if the party is not testifying What about statements made by nonparties?

20. COMPARING ATTORNEY- CLIENT AND WORK PRODUCT PRIVILEGE Material privileged under the attorney- client privilege is IMMUNE from discovery in any circumstances (unless waived) Attorney work product (other than opinion work product) may be discoverable on a sufficient showing of substantial need (or if waived)

21. HYPO Polly was injured when she was struck by a bus owned by the Blue Bus Company. Polly then sued Blue Bus Co. in federal court. Immediately after the accident, Miles, a vice- president of Blue Bus Co., went to the scene and made a full investigation, including interviews with witnesses and measurements of the accident location. Miles made a written report to the directors of Blue Bus. Can Polly obtain Miles’ report?

22. ANOTHER QUESTION Same facts as previous hypo, but through the expenditure of more than $10,000, Blue Bus Co.’s attorney has uncovered another eyewitness to the accident. Polly serves an interrogatory asking for the names of all eyewitnesses and Blue Bus objects on the ground of “trial preparation materials”. Must Blue Bus Co. disclose the witness’s name?

23. PRIVILEGE LOGS: FRCP 26(b)(5) If a party withholds material from discovery on the grounds that it is privileged, that party must make a privilege log In the log, the party should describe the nature of the documents without revealing privileged information and also state the type of privilege asserted. See Handout: Sample Privilege Log

24. INITIAL DISCLOSURE RULES FRCP 26(a) requires certain automatic disclosures in civil actions A radical change, promulgated in 1993 amendments to FRCP Also, as we will discuss, many changes to these initial disclosure rules in 2000 amendments What is the purpose of automatic disclosure?

25. WHAT MUST BE DISCLOSED AT THE OUTSET OF THE CASE UNDER 26(a)? 4 categories 1. WITNESSES 2. DOCUMENTS/EVIDENCE 3. DAMAGES COMPUTATIONS 4. INSURANCE POLICIES

26. WHAT MUST BE DISCLOSED AT THE OUTSET OF THE CASE UNDER 26(a)? 4 categories 1. WITNESSES - Names and addresses of persons (if known address/phone number) likely to have discoverable info that may be used to support claims/defenses 2. DOCUMENTS - Copies or descriptions of relevant documents, data compilations, and tangible things evidence in possession, custody or control of party that may be used to support claims/defenses

27. WHAT MUST BE DISCLOSED AT THE OUTSET OF THE CASE UNDER 26(a)? 3. DAMAGES COMPUTATIONS – non- privileged documents supporting a party’s damages computations, including materials bearing on the nature/extent of injuries suffered 4. INSURANCE – any insurance policies that might provide coverage for all or part of the judgment

28. TIMING When must these automatic disclosures under 26(a)(1)(A)-(D) be made?

29. TIMING When must these initial disclosures under 26(a)(1)(A)-(D) be made? Within 14 days after the discovery meeting (conference) required by Rule 26(f) unless a different time is set by court order or stipulation When is the discovery meeting?

30. Rule 26(f) DISCOVERY MEETING Must be “as soon as practicable” or at least 21 days before the initial scheduling conference held or scheduling order is due – see Rule 16(b) – w/in 90 days after D’s appearance or 120 days after service of complaint Timing and discovery meeting/discovery plan requirements can be modified by local rule or court order At, or within 14 days after the discovery meeting, parties must make their initial disclosures –unless stipulation or court order provides otherwise: FRCP 26(a)

31. OTHER DISCOVERY AND RULE 26(f) When, relative to the discovery meeting, can parties use other discovery techniques such as interrogatories, depositions, document requests? See FRCP 26(d)

32. HOW MUCH INFO. MUST BE DISCLOSED Sam has not finished investigating his case by the time limit for automatic disclosures under 26(a)(1). Does he still have to comply with the automatic disclosures? Why or why not?

33. WHAT MUST BE DISCLOSED AS TRIAL APPROACHES? ID of experts (FRCP 26(a)(2)(A)) and Experts reports (FRCP 26(a)(2)(B)) When must these expert disclosures be made? ID of trial witnesses and designations of deposition testimony (FRCP 26(a)(3)(A) & (B)) and documents/exhibits that will be evidence at trial (exhibits) (FRCP 26(a)(3)(C) When must these pretrial disclosures be made?

34. TIMING OF THESE DISCLOSURES UNDER 26(2) and 26(3) When must disclosures re: experts be made? Timing: 90 days before trial in absence of stipulation/court order When must disclosure of trial evidence be made? Timing: 30 days before trial in absence of court order. Objections w/in 14 days thereafter

35. FORM OF DISCLOSURES Unless court orders otherwise, under FRCP 26(g) & 26(a)(4), initial disclosures -under FRCP 26(a)(1) - (3) MUST BE: In writing Signed by attorney/unrepresented party NB SANCTIONS RISK HERE – see 26(g)(3) Served on other parties – 26(a)(4) Only the pretrial disclosures must be filed with court – 26(a)(4)

36. TIMING/SCHEDULE FOR DISCOVERY 1. Court schedules scheduling conference 2. At least 14 days before, parties must have discovery meeting under 26(f) 3. Parties must make voluntary disclosures w/in 10 days after discovery meeting 4. Parties meet with judge for scheduling conference establishing timetable for discovery

37. FAILURE TO MAKE AUTOMATIC DISCLOSURES What happens if a party fails to make the required automatic disclosures under 26(a)(1)?

38. FAILURE TO MAKE AUTOMATIC DISCLOSURES What happens if a party fails to make the required automatic disclosures under 26(a)(1)? Failure to make disclosures results in exclusion of undisclosed witness or information unless failure was harmless or substantial justification. Remember: possibility of objection in Rule 26(f) discovery plan Can’t excuse failure based on incomplete investigation or problems with other party’s disclosures

39. 2000 CHANGES TO INITIAL DISCLOSURES Scope of disclosures narrowed Local rules can no longer reject automatic disclosures in 26(a)(1) except in certain specified categories of action in new FRCP 26(a)(1)(E) Slight differences in timing for 26(f) discovery conference and automatic disclosures (14 rather than 10 days after 26(f) conference) unless stipulation or court order provides otherwise, or valid objection under the rules Filing of automatic disclosures is no longer required (nb. Local rules frequently provided that filing was unnecessary)

40. DEPOSITIONS : FRCP 27-32 What is a deposition? (See CB 1083 for Dee’s) What is the role of the “officer” at a deposition? See FRCP 28, 30(a)(4) Can a party object to an officer? On what basis? See 32(d)(2), 28(c) What are the advantages of depositions? Main drawback of depositions is cost Possible to take depo before action is commenced if danger that important testimony may be lost (FRCP 27)

41. TAKING DEPOSITIONS: FRCP 30 Can parties be deposed? Can non-parties be deposed? (30(a)(1)) Can a corporation be deposed? (See 30(b)(6)) When is leave of the court required to take a deposition (See 30(a)(2))?

42. SCHEDULING DEPOSITIONS How do counsel schedule the time and place of depositions? Are there any limits on the place of depositions for parties or non-parties? Is there a time limit for depositions (see 30(d)(2)?

43. DEPOSITIONS OF PARTIES How do you initiate the deposition of a party? What if you want the party to bring documents? See 30(b)(5) What must be in the notice of deposition? Must a notice normally be filed with court? What happens if a party does not comply with a notice of deposition? Can a party object to a valid notice? See FRCP 26(c)

44. DEPOSITIONS OF NON- PARTIES How do you initiate the deposition of a non- party? See FRCP 30(a)(1), 45 What happens if a non-party does not show up for the deposition? How can a non-party object? FRCP 26(c) What should counsel do if she wants a non- party to produce documents or other tangible evidence for a deposition? See 45

45. CONDUCT OF THE DEPOSITION What statements must be made at the beginning/end of a deposition? (See 30(b)(4)) How does the questioning work at a deposition? See 30(c); CB 1084

46. OBJECTING TO QUESTIONS/REFUSING TO ANSWER AT DEPOSITIONS Can a deponent object to questions and if so, on what basis (See FRCP 30(c)), 32(d)(3)) Must a deponent answer a question at a deposition even if she has an objection to it? See FRCP 30(d)(1) What if the deponent’s objection is based privilege? What if the deposing counsel is harassing the witness? See 30(d)(4)

47. REVIEWING THE DEPOSITION TRANSCRIPT Can a deponent review the transcript of her deposition and if so, in what circumstances? See FRCP 30(e)

48. UNUSUAL TYPES OF DEPOSITIONS Telephone/videoconference depositions - see 30 (b)(7) Depositions on written questions - see 31 – just know what one is, not specific rules for its noticing and conduct Video depositions - see 30(b)(2)

49. INTERROGATORIES What is an interrogatory? Which FRCP governs interrogatories? How many interrogatories may be served on another party?

50. INTERROGATORIES AND NON-PARTIES Can an interrogatory be served on a non-party? Can an interrogatory be served on a corporation?

51. RESPONDING TO INTERROGATORIES How should a party respond to an interrogatory? See 33(b)(1) and 33(d) Can a party object to an interrogatory? If so, how? Can a party object on basis that interrogatory asks for legal conclusion? What are the time limits for responding to interrogatories?

52. SIGNATURE REQUIREMENTS Who must sign interrogatory answers? Who must sign interrogatory objections?

53. ADVANTAGES/DISADVANTAG ES OF INTERROGATORIES What are the advantages of interrogatories? What are the disadvantage of interrogatories?

54. HYPO Having sustained injuries from a household appliance, Betty sues the manufacturer, SuperVac. The required discovery conference and ensuing disclosures occur. Betty then serves 55 interrogatories on SuperVac and 20 interrogatories on Rechts Department Store, which sold her the product. Both SuperVac and Store refuse to answer. Assume the questions are relevant and not privileged. Must Store answer? Must Manufacturer answer? By what, if any, procedural step might Betty induce them to answer?