FRCP 26: Duty to Disclose; General Provisions Governing Discovery

FRCP 27: Depositions to Perpetuate Testimony

1. NOTE: FRCP 27 pre-suit discovery to assist in commencing litigation. Courts resisted using FRCP 27 to fulfill FRCP 11 (sanctions) requirements. CB 345.

FRCP 30(a): When a Deposition May Be Taken

FRCP 30(b)(1): Notice of the Deposition

FRCP 30(c): Examination and Cross-Examination; Record of the Examination; Objections; Written Questions.

FRCP 30(d): Duration; Sanction; Motion to Terminate or Limit.

FRCP 33: Interrogatories to Parties

FRCP 34: Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

FRCP 35(a): Physical and Mental Examinations: Order for an Exam

FRCP 36: Requests for Admission

FRCP 37(c): Failure to Disclose, to Supplement an Earlier Response, or to Admit.

THEME: Started very broadly and optimistically, narrowed over time as cost and time increased.

1938: “revolution” in creating FRCP, very broad. Included every type of discovery used in America and England.

1. (NOTE: Nearly no other country has discovery as broad as US)

1947: First major discovery SCOTUS case; very optimistic. Hickman v. Taylor (see below on work product immunity)

1960s: Optimism dimmed, lawyers motivated to conceal information.

1970s: Concerns about rising costs.

1980: Powell/Rehnquist/Stewart dissented from FRCP amendments because not limiting enough.

1981: Analogy of law firms to “fifteenth century Italian armies ventured from warring city-states” – avoiding direct confrontation, etc. (Lundquist)

1983 Amendments to limit discovery, make more efficient and decrease cost/delay.

1. In Re Convergent Technologies Securities Litigation (1987, N. D. CA, magistrate judge bemoaning more than 1000 interrogatory questions, > $40k spent. Essence of Rule 1 violated by excessive discovery.) CB 347-9.

1993: Added limitations, e.g. no more unlimited interrogatories.

By 1997, median discovery costs is 3% of amount at stake in the case; about 50% of total litigation cost.

Alternatives

1. German/Continental System: judge as center of fact-finding

2. British System: More pleadings in more detail, then document exchange. (No presumption of interrogatories, etc.)

3. “Game theory” informal discovery:

   1. If there is a smoking gun memo, don’t turn documents over. Go to trial, will come out eventually.

   2. If there is no smoking gun memo, turn over everything you have for nonsuit.

Before 2000:

1. Disclose all information “relevant to disputed facts.” (Might have obligation to turn over smoking gun)

2. Local rules can no longer opt-out of national rules.

Now:

1. 26(a)(1)(A)(i): Name/Address of witnesses who may be used to support claims, unless using solely for impeachment

37(c)(1): Forbids use of materials that should have been disclosed but weren’t. Erodes elements of surprise in depositions, etc.

26(b)(1): relevant evidence, need not be admissible at trial.

Written questions to be answered under oath.

1. Easily abused. “For each person who applied to a job in 2006-2008, list…”

33(a)(1) now limits to 25 interrogatories per party, absent stipulation or court order.

33(a)(2) “contention” interrogatory. OK to ask opinion, even if about application of law to fact.

33(b)(2) Judge can postpone requirement to answer as appropriate (to later in discovery or beginning of trial)

Ask about truthiness of facts, application of law to facts, opinions, genuineness of documents.

Analogous to pleadings (more about defining dispute and facts, than document discovery)

Request with “reasonable particularity.” Often categorical descriptions (“all documents about ___ meeting”).

Rule 26(a)(1)(A)(ii): Initial Disclosure, some pertinent information about materials before discovery, help opposing party identify/describe what they want with specificity.

Must produce documents that are in “possession, custody or control.” 34(a)(1)

1. Control -> “influence test.” (Societe Internationale v. Rogers, SCOTUS 1958. CB 354, 428). Control = most advantageous position to acquire documents.

Nonparty: 34(C) and 45(a)(1)(C) judge authorize a subpoena. 45(c)(1), requires to take reasonable steps to avoid imposing undue burden or expense on nonparty.

1. No interrogatories, no court-ordered exams under Rule 35.

34(b)(2)(E): Organize & label electronically stored information

Rules:

1. 30(b)(1): any party allowed to schedule with reasonable written notice.

2. 30(a)(2)(A): 10 depositions per side.

3. 30(d)(1): Session = one day of seven hours

4. 37(b) sanctions if party fails to appear. (cf. 37(d)). Otherwise, FRCP 45 subpoena

5. Objections: 32(d)(3)(B). And 30(c)(2): still proceed and testimony taken. No off-the-record advice between lawyer and client during deposition. 30(d)(2) sanctions for impeding fair deposition.

6. 30(b)(3)(A): videotape or audiotape OK. 30(b)(3)(B): other party can designate another method at its own expense.

7. 31: Deposition by written questions

Paramount Comms Inc. v. QVC Network Inc. (Del. 1994). Supp. 10-15

1. Acted out in class. Inappropriately aggressive deposition in Texas, couldn’t sanction, attorney not admitted to Delaware bar (not even pro hac vice: temporary admission).

Strategy: When to do depositions?

1. Early: Less time for witness to be prepped

2. Late: Hard to call back a witness; want to have all key evidence at hand.

Need a court order. Questions of privilege and privacy.

Needs to meet “good cause” and “in controversy” requirements.

1. Schlagenhauf v. Holder (SCOTUS 1964). CB 360. Truck driver in a rear-end collision, submitted list of nine possible specialists. Inexplicably, District Court ordered all 9. SCOTUS, this not ok. Black Dissents, said there’s enough evidence for sight and/or mental exams.

2. Rules Enabling Act: Rules not modify any rights (Consider: 5A, Due Process, Search and Seizure…)

Exams should often be w/o attorneys, not adversarial. Some states allow counsel to be present.

Davis v. Ross (S.D.NY 1985). CB 368.

1. Suing Diana Ross for defamation.

2. π claims emotional distress; therefore “in controversy,” judge allows mental exam/psych reports

   1. Given that claim was for defamation, and emotional distress is just damages… Should this have just come up later, at the damages stage?

3. (Double Standard for π vs. ? Should court be more willing to order exam for π, since they brought action, versus , since their rights are already being questioned?)

Discovery Sequence and Tactics. Pleadings back and forth. 26(f)(3) discovery plan, and 16(b) scheduling order. 26(d) only allows formal discovery after that conference occurs. Then, interrogatories/ depositions/etc.

E-Discovery Challenges. Difficulties with email, etc.

1. 26(f)(3)(C): calls for consideration of e-Discovery during design of discovery plan

2. 34(b): direction on the form of production of electronic info

3. 26(b)(2)(B): excuses initial production of “inaccessible” electronic info to reduce unnecessary costs

4. 37(e): protection against sanctions for good faith loss of this information (see, e.g., Apple v. Samsung)

Corporations: hard to find the right info/person to depose, etc..

1. 26(a)(1)(A): initial disclosure for identities of relevant people.

2. 30(b)(6): notice to depose a corporation, partnership or gov org, required to designate a person to be able to respond.

Duty to supplement if acquires/remembers more info: 26(e), or 37(c)(1) sanctions

Coca-Cola Bottling v. Coca-Cola Co. (D.Del. 1985). CB 374-5, 429. about recipe for Coca-Cola, to see if Diet Coke and Coke Classic were the same product or not. Court granted motion. (Despite privacy concerns, plaintiff needs this information to prove/disprove whether they’ve been wronged. Minimize harm with protective orders; and bottlers have interest in keeping secret.)

FRCP 26(b): Discovery Scope & Limits

FRCP 26(g): Signing Disclosures and Discovery Requests, Responses, and Objections.

FRCP 37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

FRE 501: Privilege in General

Attorney-Client Privilege. FRE 501. Absolute, but can be waived. In a corporation, includes all employees, and (probably) all former employees.

Work-product protection. FRCP 26(b)(3). Not absolute, can be overridden.

(A) May not discover documents/things prepared in anticipation of litigation.

1. EXCEPTION: (i) would be discoverable under 26(b)(1) [i.e., not privilege] AND (ii) substantial need for materials and cannot obtain substantial equivalent by other means without undue hardship.

(B) Even if discovery of work product, court to prevent disclosing of mental impressions, opinions, or legal theories.

(C) May obtain a party’s previous statements without hindrance.

U.S. 1947. CB 388.

Prior to 26(b)(3) – added in 1970. Codified Hickman.

Facts: Tug boat crash, 5 crew die. 4 settle. 1 suing. Lawyer took witness statements.

Procedural History:

1. East District of PA: requested materials NOT privilege.

2. Third Circuit: reversed. Work product, thus privilege.

Holding: Not privilege, because not b/w client &...