DISCOVERY AND DISCLOSURE
Discovery and Disclosure
Introduction
Broad discovery should make for smooth and clear trial, and might lead parties to settle. 26(a) covers mandatory disclosure, but for the most part, discovery is an antiphonal process, under which a litigant who wants information sends a request for discovery to her adversary, who either provides the necessary information or raise an objection to doing so. Usually can’t appeal discovery orders.
Rule 26(a)(1) Required Disclosure:
A party must, without awaiting a discovery request, provide the name, and if known, the address and telephone number of any individual likely to have discoverable information—along with the subject of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.
Any documents it has and plans to use to support its claims or defenses
Other materials, including insurance agreements, and any info used to calculate damages
Must be made within 14 days of initial rule 26(f) conference unless court specifies otherwise
Rule 26(b) Scope (what you have to provide if requested):
Material need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence
Parties can obtain discovery regarding any non-privileged matter relevant to any party’s claim or defense—including tangible evidence/documents, or just their location/subject/existence
Court can order discovery for any matter relevant to the case
Party can ask court for relief in not providing material if it is unduly expensive to sift through
Court can limit discovery if it rules that the costs outweigh the benefits
Rule 26(c):
Court can protect a party from embarrassment, oppression, or undue burden by forbidding certain discovery or inquiry, or other means
Rule 37
After attempting to confer with the other party, one may move to compel disclosure or discovery
Chalick v Cooper Hospital
Hospital did not disclose the name of a doc who was involved in treating a patient for med mal, patient learns of his role during discovery depositions. Because they failed to disclose him, kind-of as a punishment, they allow Chalick to amend the complaint to add doc as a defendant. This was pre-2000 amendment. Today, probably wouldn’t have had to add Chalick b/c it wasn’t clear that the hospital was going to use his testimony in its defensenot required disclosure.
Policy: Discovery promotes accuracy and efficiency in proceedings, leads to settlement, avoids
Surprises. However, can promote improper practices, and might enhance power of large corps.
Blank v Sullivan & Cromwell
Pleadings set bounds for what is relevant to any party’s claim or defense. Information can be admissible if it is reasonably calculated to lead to additional relevant information, even if it does not itself appear to be relevant. This case now less relevant after 2000 amendment. Old standard was reasonably calculated to lead to material about the “subject matter” of the suit. Now reasonably calculated to lead to material specifically about either party’s claim or defense.
Privileges—EXCEPTIONS FROM DISCLOSURE
Attorney Client-Privilege: Communications between an attorney and his client made in confidence and for the purpose of seeking legal advice or giving assistance. Privilege can be waived, e.g., if conversation in a crowded place. The privilege conceals communications, but not the underlying facts.
Work Product Privilege
Rule 26(b)(3)
Ordinarily, documents prepared in anticipation for litigation are not discoverable unless the party shows that it has a substantial need for the materials and cannot obtain their equivalent without undue hardship.
If disclosed, must guard against attorney’s mental impressions regarding the case.
Hickman v Taylor
Hickman does not have to turn over his interviews of witnesses from ship accident.
General policy is against invading privacy of an attorney’s course of preparation. Any party wanting to invade that must justify why. Rules have departed somewhat from purity of Hickman. Now required to disclose certain things like the subject matter of knowledge of parties with information (26(a)(1))—this necessarily reveals some of the lawyers’ impressions. But 26(b)(3)(B) now encapsulates Hickman.
Upjohn v United States
IRS requested materials from Upjohn’s internal investigation. Since they were requesting the attorney’s notes, not his communications with his client, its work-product, not attorney-client privilege.
Extends privilege to all the employees of the corporation, not just the senior decision-makers. Two points.
One, attorney-client privilege covers not only advice to clients, but also information that clients give the lawyer to help him make advice. To that end, since lawyers often need to hear from low-level employees, the privilege extends to all conversations with employees within the scope of their role as employees.
On opinion work-product privilege, doesn’t give absolute rule, but raises hurdle much higher than substantial need an undue burden. Makes it really hard to get this stuff.
Work Product—covered under 26(b)(3). Sub (A) says that work product, including that produced by the client itself, not by the attorney, is discoverable only where there’s
Today
Different circuits have different interpretations of prepared for litigation. Probably not covered if prepared in the normal course of business. 2nd Circuit,...