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Agenda for 6th Class• Admin

– Slide handouts– Name plates out– Lunch Friday, 12:30 outside Rm 433 (Faculty Lounge– Make up class

• This Wednesday, 9/17, Rm 3, 12-1:50• Discovery

– Intro & Scope– Depositions– Relevance

• Steffan v Cheney• Davis v Precoat

– Privilege– Privacy

• Stalnacker– Intro to Work Product & Experts

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Assignment for Next Class I• Work Product

– FRCP 26(b)(3), – Yeazell 487-97, – Writing Assignment / 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 413-15, 419-20, 429-32

3

Assignment for Next Class II• Experts

– FRCP 26(a)(2), (b)(4), (c)(1)– Yeazell 497-503– Questions we will discuss in class / writing assignment :

• 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).• 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 415-17, 420-21, 432-34

4

Last Class• Amendment & Relation Back

– Analyze all factors / requirements– Don’t analyze relation back unless plaintiff is bringing claim barred by

statute of limitations– If statute of limitations problem

• Necessary to analyze amendment and relation back separately• But no relation back is reason to deny amendment

• 1995 Exam– Best answers

• Saw multiple reasons for 12(b)(6)• Identified invalid legal theory as most strategically advantageous

– On exam, should mention other grounds for 12(b)(6)» Missing element, conclusory allegations, etc.

– In practice, need to decide whether worth client’s money, court’s time, and possibility of alienating judge and opposing counsel

– Answer, etc.

5

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 emails)

• 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

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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– May do broader discovery relevant to “subject matter involved in the

action” with court permission• Limitations

– Privilege– Special rules for work product and experts– Cost outweighs likely benefit. 26(b)(2)(C )(iii)– Annoying, embarrassing, oppressive. 26(c)(1)– Court may issue protective order. 26(c)(1)

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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?

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Questions on Discovery• Briefly summarize Davis v Precoat Metals and Stefan v Cheney• Pp. 463ff. Q1-4• Pp. 488ff Q1• Briefly summarize Stalnaker• Pp. 506-7 Qs 2, 4b

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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?

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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