Discovery And Disclosure - Civil Procedure

DISCOVERY AND DISCLOSURE

Discovery and Disclosure

1. 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.

2. Privileges—EXCEPTIONS FROM DISCLOSURE

   1. 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.

   2. 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...