Discovery

Scope of discovery

1. Rule 26(b)(1): Parties can seek discovery regarding any non-privileged matter that is relevant to any party’s claim or defense, unless otherwise limited by the court. If a party shows good cause, the court may grand even broader discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

   1. Relevance is determined by common sense and substantive law. Fork

Limits on the scope of discovery

1. Court’s limit: Rule 26(b)(2)(C): limit discovery if it is cumulative, marginally relevant, obtainable in other way, or if the burden of production outweighs the likely value of the information.

2. Privacy: General rule: people can be required to reveal relevant information, even when the information is embarrassing or confidential, in the ordinary sense of the word.

   1. Party opposing production of information can move for protective order under Rule 26(c)

   2. Rule 35 places special limits on the use of discovery to compel physical or mental examination.

3. Work product protection:

   1. Rule 26(b)(3): Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of/ during litigation or for trial by or for another party or its representative. But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

   2. Court must protect mental impressions, conclusions, opinions or legal theories of a party’s attorney or other representative concerning the litigation. (Hickman)

   3. Steps:

      1. STEP 1:

         1. Is the material a document or a tangible thing?

         2. Was it prepared by or for another party?

         3. Was it prepared in anticipation of litigation?

            1. If answer to these questions is yes, STEP 2

            2. If one or more answers are no, then it’s not protected under work product protection

      2. STEP 2

         1. Does the requesting party have a substantial need for the material in preparing its case?

         2. Is it unable to obtain equivalent information by other means?

            1. If answer to both questions is yes, then discoverable, unless STEP 3

            2. If answer to one or both question is no, not discoverable, protected by work product protection

      3. STEP 3

         1. Would the material reveal the mental impressions, conclusions, opinions, or legal theories of counsel?

            1. Yes, protected from discovery

            2. No, can be discovered.

   4. A person can obtain the person’s own previous statement about the action or its subject matter.

   5. Rationale for work product protection: it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Otherwise, an attorney would not put his thoughts in writing and this would result in inefficiency, unfairness. The interest of clients and the cause of justice would be poorly served. (Hickman)

4. Attorney-client privilege

   1. Information is privileged if it is a (1) confidential (2) communication between a (3) attorney acting as an attorney of the client and (4) the client, (5) for the purpose of rendering legal advice, (6) that is not waived by disclosure to a third party.

   2. The privilege belongs to the client.

   3. If information is privileged, the party holding the privilege may refuse to testify about that communication in discovery.

   4. Utilitarian justification: maintaining the confidentiality of certain communications will encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. And this benefit outweighs the evidentiary value of those communications.

   5. However, the privilege only protects from disclosure of communications, it does not protect disclosure of the underlying facts by those who communicate with the attorney. (Upjohn). It does not protect the fact that a lawyer is consulted.

   6. Are lower level employees “clients?” Yes: Upjohn the Supreme Court rejected the “control group” test as a matter of...

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