STAGE 1: Initial Disclosures (Rule 26(A)(1))

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Civil Procedure II Outline

I. Discovery

STAGE 1: Initial Disclosures (Rule 26(a)(1))

Party must, without being requested, provide to the other parties 4 things (whichever relevant):

·  Rule 26(a)(1)(A)(i) Witnesses

o  Would need to know if the witness would likely be called upon at trial, and if yes, then would need to disclose but if no, then likely not

§  Would not want to call a witness to testify at trial if the witness would hurt your case and, therefore, would not need to disclose them

o  **ONLY NEED TO DISCLOSE THOSE THAT YOU WILL USE AT TRIAL TO SUPPORT YOUR CASE

o  If you don’t disclose someone and then end up wanted to include them in your witness list at trial, it is likely that you will be sanctioned at trial and will not be able to call them during the trial

·  Rule 26(a)(1)(A)(ii) Documents: Like police reports, car maintenance records, medical records

·  Rule 26(a)(1)(A)(iii) Damage Computation: Medical reports for damages (mainly for π)

·  Rule 26(a)(1)(A)(iv) Insurance Agreements: Relates to the judgment (typically the ∆ is the one who discloses under section iv)

o  This will likely affect whether the π will proceed with the case and/or decide to settle

·  Rule 26(a)(2) Expert testimony:

STAGE 2: Requests from one side to the other

·  Depositions (Rule 27)

o  Most expensive but also likely most useful method of discovery

o  Limit: can only get 10

§  But if the individual case requires more, you can ask for more so long as it is reasonable

o  Time constraint: get 1 day of 7 hours

o  Effective because answered directly by the witness, rather than the attorney & the attorney is not allowed to constantly object; rules specifically say you can object but the person must still answer the question

§  Example: in deposition can’t object based on hearsay even though that testimony likely won’t be admissible in trial due to hearsay

o  Allows for follow-up questions as opposed to interrogatories

o  Also helps you see how someone will react on the stand and frame questions for trial.

o  Depositions can be used to impeach people at trial based on their changing testimony

o  Can also use them to preserve testimony (like if a witness died before trial)

·  Interrogatories (Rule 33)

o  Come first in terms of discovery to narrow down what documents to request or people to depose—economically efficient— NOT document production in itself.

o  Broadens disclosure b/c can ask for any documents and witnesses instead of those that help the other side—which is the scope of disclosures.

o  Answered by attorneys instead of individuals

o  Typically time limit is 30 days to respond

o  There is a limit of 25 written interrogatory questions (Rule 33(a)(1))

o  Things like records under your control, in interrogatories you can have the requesting party find those records themselves as long as they can find the as easily as you could (Rule 33(d)(1))

§  If burden of deriving answer will be substantially the same for the other party as for the responding party

o  Can also object to the specific interrogatories, but need to be specific regarding why (Rule 33(b)(4))

·  Request to Produce Documents or Tangible things (Rule 34)

o  Extremely broadly defines documents and tangible things (Rule 34(a)(1)(A))

§  In order to discourage any “game playing” with the strict definition of words

§  Example: past cases or claims of similar nature, drawings, documents, testing results, etc.

o  How do you ask for the information knowing that “document” can mean anything?

§  Don’t want to ask the document request too broadly but also don’t want to be too narrow

o  Attorney’s responsibility to respond and hand over the documentary evidence to the other side; need to make sure you do not send privileged or protected documents to the other side

·  Requests for Examinations (Rule 35)

o  Need a court order (only rule that needs a court order) in order to get a medical (mental or physical) examination of a party (Not witness—cannot subject a witness to examination).

o  Must demonstrate good cause & the mental or physical condition that you are testing for is actually “in controversy” aka particularly relevant to the case.

o  Most often used by ∆ for π— If claiming physical or mental damage must show harm.

·  Requests for Admissions (Rule 36)

Duty to Preserve Evidence and Attorney’s Responsibilities

Zubulake v. UBS Warburg LLC, pp. 376, SNDY NY 2004

·  Gender discrimination case

·  Asked for email correspondence among various UBS employees to show gender discrimination – there may be something in those emails to show some sort of discriminatory intent

·  3 problems with emails: 1. Deleted and lost, 2. Deleted and recovered but two years later, or 3. They were there the entire time and never produced.

o  Spoliation

§  The destruction or significant alteration of evidence, or

§  The failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.

·  What are the requirements to show Spoliation

1. Obligation to preserve it at the time it was destroyed. This obligation kicks in even before the suit is filed if you were on notice, since the definition has “reasonably foreseeable litigation.”

2. Culpable State of Mind – Negligent, bad faith, presumed

3. The destroyed evidence was relevant to the party’s claim – supporting requesting practice

·  What are the sanctions that the plaintiff is seeking?

o  Adverse inference instruction – “If you find that UBS could have produced evidence, in control and would have been material in deciding facts, you are permitted to infer that the evidence would have been unfavorable to UBS”

·  Counsel’s Obligations – Locate, retain, produce

o  Litigation hold

o  Communicate directly with key players (or relevant players)

§  Preservation duty and periodically remind

o  Instruct all employees to produce electronic copies of relevant active files & ensure that all backup media is identified & safely stored

o  Overseeing that this continues to be done during course of litigation

·  Rule 26(b)(2)(b) – now specifically refers to electronic information

Rule 26(b)(1) – General Scope of Discovery

1. For good cause, court may order relevant to subject matter (Not much on this)

2. Relevant to a party’s claim or defenses

·  Not a fishing expedition to find whatever you want but does NOT need to be admissible at trial (can be limited by rules of evidence) but Reasonably calculated to lead to admissible evidence of discovery.

·  Information that can be gained during discovery is broader then what can be brought in at trial.

United Oil Co. v. Parts Associates, Inc., pp. 368, D. Md. 2005

o  π made Rule 37 – Motion to compel answer to interrogatories by ∆.

§  Before this motion is made you have to confer with the other side to work out the issue.

o  ∆ argues that the discovery requests are

§  Irrelevant + Overly Burdensome

o  How do you define RELEVANCE?

§  Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would without the evidence. “Does the item of evidence tend to prove the matter sought to be proved?”

o  ∆ says there should be 4 limits on requests:

§  Claims should only be Failure to Warn claims

·  Not necessary to have only failure to warn claims – other types of cases could have given the ∆ warning that the product was dangerous.

§  Only products in this case = Fleet-fill Brake Cleaner

·  Court decision on all products that contain any chemicals in controversy (even small amounts)- it may not be admissible but it can lead to admissible evidence – burden is on π at trial to show how those products are similar.

§  Liver damage

·  Yes, the claims have to be limited to liver damage. If they have notice of heart problems, that’s not relevant to the π’s liver damage.

§  10 years back à from the filing of the discovery

·  The claims disclosed should be only cases that came up before the π’s injury

·  Claims after the injury are relevant to causation but not relevant to knowledge

o  A Failure to warn claim requires:

§  Knowledge or good reason to know that the chattel is likely to be dangerous for the use for which it is supplied + Proximate Causation

o  Contention interrogatory – If you contend you did not cause these injuries, tell us the basis for these contentions. Court says that contention interrogatories are allowed.

o  ∆’s motion to compel – π asked United Oil some questions and United Oil gave a bunch of documents over per Rule 33(d) BUT court says no, cant produce business records in this case b/c

§  United Oil is more familiar with these documents + has greater resources + πsays some of the answers aren’t in there

3. Non-privileged

·  General elements:

o  Confidential communication, between individuals in a “protected relationship”

§  Spousal

§  Attorney-client**

§  Doctor-patient

·  Communication itself must be for purpose relating to relationship

·  Attorney-client Privilege

o  Confidential (no 3rd party) communication

o  Between client and his or her attorney, acting in the capacity of the attorney

o  Relating to legal advice

§  For attorney-client, anything you say that relates to getting legal advice is privileged, not just anything you say (ex: if client saw attorney at dinner and spoke about politics, that is not privileged)

o  You must ASSERT the privilege

o  Documents are the other critical components (documents labeled “confidential” are covered by attorney-client privilege). Completely confidential.

·  Who is the client in Corporations when asserting the privilege?

o  At one extreme, only the CEO/top managers (Court rejects in Upjohn), other extreme, everybody including janitor

o  Need to have in mind the purpose behind the privilege in order to determine who the privilege should extend to:

§  Person needs to have been engaged in work related to the company & have/had information that was legally relevant to the legal advice that was being sought

§  Person needs to be an agent of the company

§  Court looks in terms of where is the need

·  Rule 26(b)(5) à Claiming Privilege or Protecting Trial-Preparation Materials

o  A: information withheld; lists what you need to do if you are asserting privilege/trial prep

§  Must assert expressly in response to discovery

§  Must describe in general terms what you are withholding (a/c priv. or trial prep mat.) so that the court/other side may know that it is a legitimate assertion of privilege

o  B: information produced; if subject to claim of attorney-client privilege/trial prep

§  Can notify the other side that something was turned over that was privileged

§  After notification, other side must return, sequester or destroy the document

Rule 26(b) – Limits on Discovery

Limits Rule 26(b)(2)(C): Court must limit discovery if burden will outweigh benefits considering needs of case, AIC, party’s resources, importance of issues, importance of discovery in resolving issue.

·  Not overly burdensome

·  Not “cumulative”

·  Not more easily obtained from other source

OTHER Limits on Discovery

i.  Trade Secrets: Non-Privileged Information that will Hurt the Interests of the Disclosing Party

o  Coca-Cola case à does Coca-Cola need to hand over the trade secret?

§  Procedurally, if you don’t want to produce the trade secret, what should you do?

§  Want to file a motion for a protective order (Rule 26(c)) to not have to turn over the trade secret; need a good reason and the court may issue this order for annoyance, embarrassment, oppression, or undue burden or expense including requiring a trade secret be revealed à Asking the court for a way to evade the rules and keep your trade secret a secret

o  Judges balance both sides and see how important the trade secret is to proving the requesting party’s case and, on the other side, how costly/problematic is it to the disclosing part.

ii.  Work Product: Trial Prep Materials (Rule 26(b)(3))

Hickman v. Taylor – Tugboat accident and attorney spoke with various witnesses + statements

·  Can discovery be used to inquire into materials collected by an adverse party’s counsel in the course of preparation for possible litigation?

o  No attorney-client privilege under Rule 26(b)(1) because they were conversations between attorney and third party

o  Is definitely relevant to the claim – Witnesses who saw boat sink

·  Attorney’s work product: Primary Question

o  Timing of when it was created (when was document prepared)

o  Motivation (for what purpose was it created)

·  Rule 26(b)(3)- 3 Elements

o  Party may NOT discover documents and tangible things that are prepared in anticipation of litigation for the trial by or for another party or its representative

o  Discoverable ONLY if:

§  Otherwise discoverable under Rule 26(b)(1)

§  Requesting 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

·  E.g. evidence no longer exists (if witnesses died) BUT make sure other party didn’t have an opportunity and miss it – no freeloading.

·  Oral statements— can basically NEVER get that **Not privileged but heightened standard

·  Also protects mental impressions, conclusions, opinions or legal theories

United States v. Adlman (1998) - Document prepared by accountant/attorney and was asked by client’s attorney to assess the likely results of expected litigation if they engaged in consolidation of 2 firms

·  Does they study attorney asked for count as trial prep b/c it was virtually certain IRS would sue?

·  Problem: Document was created primarily in order to make a business decision but also could be used with potential impending litigation

·  Timing

o  This study was drafted before business transaction occurred that would give rise to litigation.