Civil Procedure II Outline
I. Discovery
Three Purposes of discovery:
· Permit the preservation of evidence that might be lost before trial
· Provide mechanisms for narrowing the issues in dispute between parties
· Permit parties to acquire greater information about their own and the other side’s case
Discovery eliminates the element of surprise which leads to a more fair trial on the merits, instead of it being a contest of skill (and money)
· Exchanging information leads to more likely settlement without the expense of trial
Civil discovery in the US is much more broad than in criminal cases and foreign civil cases
· Judges have been reluctant to control discovery, but this is changing somewhat (more magistrate judges)
Types of Discovery:
· Depositions (R. 30)
· Interrogatories (R. 33)
· Production of Documents (R. 34)
· Request for Mental and Physical Exams (R. 35)
· Request for Admissions (R.36)
The Scope and Mechanics of Discovery
· Scope deals with the range of information that you can get as a mandatory requirement in litigation
· Mechanics = the various discovery devices (i.e., interrogatories, depositions, etc.)
· First ask whether information is within broad scope of 26(b)(1), then ask whether one of the exceptions to discovery of relevant information applies
· Step 1 – General Discovery Standard under 26(b)(1) – Scope of Discovery
o Parties may obtain discovery regarding any non-privileged matter this is relevant to any party’s claim or defense—including the existence….of any documents or other tangible things and that the identity and location of persons who know of any discoverable manner. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence
§ Material must be non-privileged (see Privilege below—attorney/client, work product)
ú Also non-testifying expert witnesses (see Experts below)
§ This rule was amended in 2000 to be more narrow. It says “relevant to party’s claim or defense”. It used to be just relevant to subject matter which now the court can extend to for good cause
ú Relevant to claims/defenses = anything relevant to the issues framed by the pleadings
ú Discoverable information relates to the party’s claims/defenses. Since this is more limited than “any relevant material”, the attorney may be more likely to plead multiple theories to discover more information
o Includes documents, anything that can be used as evidence/witnesses
o Discovery doesn’t have to be admissible evidence! You can ask hearsay questions at a deposition as a way to find out more information (like anyone else you may want to depose)
· Step 2 – Even if you qualify under 26(b)(1), other side can object under 26(b)(2)(C)
o Rule 26(b)(2)(C) LIMITS the scope of discovery
o Court must limit frequency or extent of discovery otherwise allowed if it determines that:
§ (i) Discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
§ (ii) Party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
ú i.e., party waited until end of discovery period to request a large amount of information
§ (iii) Burden or expense of the proposed discovery outweighs its likely benefit, considering (1) needs of the case, (2) amount in controversy, (3) parties' resources, (4) importance of the issues at stake in the action, (5) importance of the discovery in resolving the issues.
o (b)(3)-(5) – Other reasons for avoiding the discovery process (trial prep; materials and experts; privilege) – DISCUSSED BELOW
o Rule 37 – Motion to Compel Discovery when the other party won’t comply
· Step 3 – Protective Orders (26(c)) - Court can structure discovery to protect a party from having to disclose something
o (1) Party receiving discovery request (party, private person subpoenaed) may seek a protective order from the court to protect discovery. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
§ (a) Forbidding disclosure or discovery
§ (b) Specifying terms, including time/place for disclosure/discovery
§ (c) Court may prescribe different discovery methods
§ (d) Court may forbid inquiry in certain matters or limit scope to certain matters
§ (e) Designate who may be present when discovery is conducted
§ (f) Require deposition be sealed and opened only upon court order
§ (g) Require trade secret or other confidential information not be revealed or only revealed in a specific way
§ (h) Require parties to simultaneously file info in sealed envelopes, to be opened as the court directs
§ Other options: In camera review, redact files, sequence discovery (discovery of least controversial stuff first)
o (2) If motion for protective order is denied, court may order that person to permit/provide discovery
o (3) Awarding expenses – See 37(a)(5)
· Information could be non-discoverable because it’s privileged (attorney/client, etc.)!
What about existence of liability insurance? Is that discoverable?
· No! Not relevant to claim/defense of party - Doesn’t qualify under 26(b)(1)
· If you mention “liability insurance” in a proceeding, it’s grounds for an immediate mistrial because it’s considered prejudicial
· But, Rules say it’s discloseable in discovery under Rule 26(a)(1)(A)(iv) – you HAVE to disclose it off the bat
o It affects settlement of the case if the plaintiff knows that
o Plaintiff’s lawyer will demand policy limits
What about discovering defendant’s total net worth?
· Privacy concerns! We don’t allow it to be discoverable
· Exception is in the area of punitive damages because net worth was relevant to size of the punitive damage award, but SCOTUS is changing this
Notes – Marresse v. American Academy of Orthopedic Surgeons: doctors claim they have not been admitted to society of orthopedic surgeons in violation of anti-trust laws. To show the case, they want all the membership files. Could argue that this goes against the privacy of the members.
· The lawyer for the organization could claim this evidence should stay out b/c it is just a strike suit- they will settle b/c they do not want to have to disclose this information. This seems like predatory discovery- they know this is private information and the other side is just trying to get us to settle.
· Lawyer for the doctors: focus on the injury to the client. The organization is just trying to cover-up, be obstructive, stone-walling, this is diversion from the main course of the information.
· Majority thinks this was precatory discovery – P was trying to force D into settlement by asking them to reveal sensitive/private information – therefore, protective order
REQUIRED DISCLOSURES
Rule 26(a) – Required Disclosures
· (1) Initial Disclosures
· (2) Disclosure of Expert Testimony [Experts]
· (3) Pretrial Disclosures [Managing a District Court Caseload]
· (4) Form of Disclosures [Managing a District Court Caseload]
Rule 26(a)(1) – Required Initial Disclosures
· Party must disclose any information that it (1) may use in support of its claims or defenses; (2) unless the information would be used solely for impeachment; (3) Also computation of damages; (4) Insurance agreement
· Basically, you’ll get the basic information, but you still must use other tools of discovery (interrogatories, requests for documents, depositions) if you want to obtain information unfavorable to responding party
(A) – Party must, without awaiting discovery request, provide to the other parties:
· (i) name, address, phone (if known) of anyone likely to have discoverable information that disclosing party may use to support its claims/defenses, unless the use would be solely for impeachment
· (ii) copy, or description by category and location – of all documents, ESI, and tangible thinks that disclosing party has in its possession or control and may use to support its claims/defenses, unless the use would be solely for impeachment
· (iii) Computation of each category of damages claimed by the disclosing party – as well as documents on which each computation is based, unless its privileged or protected from disclosure
· (iv) Insurance agreement under which an insurer may be liable to satisfy all/part of possible judgment
o Must be given up front because it can’t be asked for at trial (too prejudicial, grounds for mistrial)
(B) – Proceedings exempt from initial disclosure (very specific, i.e. petition for habeas corpus, forfeiture action in rem arising from federal statute)
(C) Time for Initial Disclosures – In General
· A party must make the initial disclosures at or within 14 days after the parties Rule 26(f) conference unless court decides otherwise or a party objects
(D) Time for Initial Disclosure – For Parties Served/Joined Late
· Party joined or served AFTER the 26(f) conference must make the initial disclosures within 30 days of being served or joined, unless court rules otherwise
(E) Basis for Initial Disclosure; Unacceptable Excuses
· Party must make its initial disclosures based on information then reasonable available to it.
· Party is not excused form making disclosures because it hasn’t fully investigated or because it challenges sufficiency/absence of other party’s disclosures (just because they didn’t do it doesn’t mean you can’t!)
TYPES OF DISCOVERY
1. Depositions
2. Interrogatories
3. Production of Documents
4. Request for Physical and Mental Exams
5. Request for Admission
NOTE – 26(b)(2)(A) – Court can alter the limits in these rules on number of depositions and interrogatories or on length of depositions (Rule 30). They can also limit number of requests (Rule 36)
26(e) – Supplementing Disclosures and Responses
(1) Party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response:
· (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete/incorrect, and if the additional/corrective information has not otherwise been made known to other parties during discovery process or in writing; OR
· (b) as ordered by the court
(2) For an expert witness whose report must be disclosed under Rule 26(a)(2)(B), he must also supplement information in their report or deposition. Any additions/changes must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.
Typically, you don’t involve judge so much in discovery. Rule of Thumb is 3 bite rule
· Lawyer does this because when she gets before the judge, she wants to ensure the story judge hears it that she’s trying to comply with the rules and other side is obstructing discovery and coming to the judge is the last resort
Depositions – Rule 30
· Testimony taken under oath in front of a notary (no judge)
o Other side can always be present for cross-examination. They may also participate through written questions delivered to the noticing party and asked by an officer (30(c)(3))
§ Usually little reason for counsel to “cross-examine” your own witness/party, since the opposing lawyer is there to counsel his witnesses, but he may want to clarify statements that could be misinterpreted
· This is usually done last as you want to compile information for the deposition, it’s most expensive
o Previews witness testimony, it’s on the record, lawyer can ask follow-ups
· Can be used in two ways:
o Discovery deposition - open ended questions asked to pin down as much information as possible from witness that may be offered at trial)
o Evidence Deposition - if witness is unavailable to testify at trial, this will be used in place of their testimony
§ This is probably the only time counsel would depose its own witness and opposing counsel would cross-examine fully
· Who – Anyone with discoverable information can be deposed (30(a)(1))
o If deponent is party – Counsel initiates deposition by sending a notice of the deposition to ALL parties in the action, stating time/place (30(b)(1))
o If deponent is NOT a party – must be subpoenaed under Rule 45 as well
§ If they want non-party deponent to produce documents, they must serve a notice of that (subpoena duces tecum) with notice of deposition
o Some depositions require leave of court: If parties have not stipulated to the deposition AND (i) deposition would result in more than 10 per side OR (ii) deponent has already been deposed in this case; OR (iii) party seeks to take deposition before time specified in Rule 26(d) (unless party certifies that deponent will be outside US or unavailable after that that time)
§ Or Deponent is in jail
o If a corporation is noticed, the named organization must designated one or more officers, directors, etc. who can testify on its behalf
· Recording
o Party who notices the deposition must state in the notice the method for recording the testimony. Usually audio, audiovisual, stenographic. Noticing party bears recording costs
o Any party can specify another method of recording, with them bearing the cost
· By Whom
o Unless parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28. Officer must begin with an on the record statement including his name, business address, date/time/place of deposition, deponent’s name, administration of oath to deponent, identify of all people present
· Objections – Noted on the record, but examination still proceeds. Testimony is taken subject to an objection
o Person may instruct deponent not to answer only when necessary to preserve a privilege, enforce a limitation ordered by the court, or to present a motion under 30(d)(3)
· Duration – Deposition limited to 1 day of 7 hours. Court must allow for additional time if needed
o 30(a)(2)(A)(i) imposes a presumptive limit of 10 per side but that can be altered
· Sanctions: Court may impose sanctions on any person who impedes, delays or frustrations the fair examination of a deponent
· Motion to Terminate or Limit: Deponent or party may move to terminate or limit deposition on ground that it is being conducted in bad faith or manner that unreasonably annoys/embarrasses/oppresses deponent or party. Motion may be filed in court where action is pending/deposition is taking place. If objecting party demands, deposition may be suspended for time necessary to obtain order. 30(d)(3)(A)