#11419 - Discovery - Civil Procedure

Discovery

Note about forum non conveniens = Discovery laws are really attractive to foreigners & we don't want litigation arising out of non-American laws. Drain on resources & not just to our jurors or to the laws of other sovereign nations.

Discovery does not require just information to be used in litigation, but also information which could lead to further discovery of usable information.

1. Policies

   1. Incentivizes settlement because it causes parties to appraise the overall case costs.

   2. Makes clear the appropriateness of summary judgment

2. Rules

16:

26: basic conditions. governs initial disclosures, explains scope of discovery, describes important limitations on the scope of discovery such as those with respect to work product and expert witnesses, prescribes a set of ethical obligations, (Rule 26f is a lot like 11 in this way), and the planning and scheduling element. You certify that you've done your research, you have a non frivolous legal basis for what you're doing, that you're not doing it just to harass or unduly burdensome, etc.

33: interrogatories

37: is about the enforcement regime for discovery. Compelling discovery, and sanctions on parties for misbehavior in discovery for failing to produce information or needlessly driving up costs.

1. Bad-faith requests are not allowed (to harass, increase costs,

2. Should be done without assistance from court. Court will apply sanctions to parties which make the process unnecessarily difficult.

3. Informal investigations prior to pleading: rule 11

   • Advantages

     • Inexpensive

     • Informal interviews are easy to arrange and quick to conduct, rather than formal depositions which are difficult to schedule and time consuming

     • When informal interview says something unfavorable to client, there is no rule requiring the lawyer to write it down/send it to opposing counsel. In formal interview, everyone is under oath.

4. Timing: 26(f) - require meeting before trial to discuss discovery plan…."as soon as practicable": before 21 days before final deadline for issuance of schedule order. Deadline must be within 120 days after defendant has been served or 90 days after defendant has appeared.

Parties must submit written report outlining discovery plan within 14 days of meeting.

5. Initial disclosure: names, etc,, descriptions by category and location of documents/data, etc that is important to opposing party, Computation of damages claimed, Insurance agreement out of which a judgment may be paid, 26(a) requires that parties disclose all info favorable to their own case

6. Rule 34: objects can be requested for inspection, copying or testing, entry onto land, measuring and photography. Subpoena can be issued, but a non party can reject it for reason of undue burden.

7. MAIN TYPES

   1. Interrogatories: limited to 25, they were being abused because sometimes they require a lot of research, big companies will try to sneak their way out of identifying documents so interrogatories are best when they are very specific

   2. Document requests

   3. Depositions: under oath, witness, best way to get information regarding undocumented conversations, follow-up questions = more difficult for witness to evade, good way to see what witnesses will sat at trial, should be done last (after you've seen all documents)

8. Burden is on the parties to identify at an initial stage the categories and witnesses they plan to use to construct their own case, and later they must reveal their experts. This lets the other side prepare based on the preparations of their opponent

9. Motion for protective order: you don't want to comply with the demands (you think the demands are excessive) 37

10. Motion to compel : I want you to give me my info

Cases

1. Zubulake v UBS: Court ordered defendants to produce emails stored in back up drives, despite the high cost of doing so. Incentivizes corporations storing information in easily accessible ways, keeps businesses from quickly deleting information to avoid discovery

   1. Balancing test of private and public interests

      1. Proportionality test of 26(b) (2)(iii) = weight the likely benefit, taking into account the needs of the case. amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.

   2. Proportionality test of 26(b) (2)(iii)

   3. Because of notice pleading of Swierkowicz, plaintiff not committed to solely what is in pleading for discovery

   4. 7 Factor test (post-Zubulake):

1) the specificity of the discovery request;

2) the quantity of information available from other and more easily accessed sources;

3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources;

4) the likelihood of finding relevant, responsive information that cannot be obtained from other more easily accessed sources;

5) predictions as to the importance and usefulness of the further information;

6) importance of the issues at stake in the litigation;

7) the parties' resources

The first 2 factors are the most important

5. Takeaways - shifting landscape of discovery (almost all information is now stored electronically), cost shifting (policy of fairness - don't want to bar people from litigation because discovery is too costly, and similarly don't want to put a small company out of business because it is required to access electronically stored info), upholding FRCP 26 (that burden is on requestee to supply discovery, unless that burden is undue), states of mind are more accessible than ever (off the record conversations) are hard to have now with email.

   1. Note: Assumption in Iqbal = discovery is doomed to be a mess. But empirical data shows that this is not true for most cases. Universe of info is predictable, not a lot of opportunity to fight. Zubelake shows the exception to that data - where we have big issues, strategic misbehavior, burden of costs.

2. Hickman v Taylor: work product protection. where tug boat owners conducted informal interviews and prepared memoranda in preparation for litigation, and that information was not accessible to plaintiffs through discovery. With the informal interviews: no necessity, any information can be had through depositions, requires lawyer to officially remember conversation in a way that is unfair (if witness said something different at trial it would put the lawyer at risk for defending his word against witness), with the memos - this is a necessary part of lawyering and the entire profession would be harmed if this was available to discovery.

   1. Does not protect EVERYTING a lawyer does, just that which he does in anticipation of litigation.

      1. Work product doctrine can be overcome if the info cannot be obtained from other sources OR can only be obtained with great difficulty. But there is NEVER exception to attorney-client privilege which is based on unavailability of information. 26(b)(3)(A)(ii)

      2. Bar for mental impressions is much higher (in CA it is totally barred)

   2. Possible snare? Insurance companies evaluate every claim. Does that mean every claim they evaluates is done in anticipation of litigation? No, if you evaluate claims as normal order of business, you'll need some other trigger that you have to show in order to say that the evaluation was in anticipation of litigations.

   3. Policies: litigation would be longer if lawyers required to record every mental state, law profession would suffer & be less effective

Pros of "immunity"

• Lets the lawyer be a lawyer, rather than a witness (doesn't have to constantly back up his recollection of witness statements OR prove that it is he, not the witness, that is telling the truth in the case that official witness testimony does not match unofficial interviews)

• In requiring pre-litigation preparation, much of what is now put down in writing to help lawyer organize his thoughts,...