Civil Procedure Outline Discovery (457-522) A. Modern Discovery B. Possibilities of Discovery 1.

Relevance Rule 26(b)(1): Parties may obtain discovery regarding any non privileged matter that is relevant to any partys claim or defense. Additionally, For good cause, the court may order discovery of any matter relevant to any subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appear reasonably calculated to lead to the discovery of admissible evidence. What does it mean to be legally relevant? It tends to prove or disprove elements of the complaint or answer. 2. Duty to preserve evidence 3. Surveying the stages of discovery a. Initial disclosures Occurs within 90 days of appearance or 120 days of service Parties must exchange initial disclosures within 14 days after the scheduling conference b. Request for production Rule 34 (requests for production): allows for requesting party to obtain, copy, inspect, test any designated documents or electronically stored data, recordings, images, photos, drawings, writings producing electronically stored data: o A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; Strategy tip: bury smaller firms in discovery Rule 35: (request for physical and mental examinations) May be made only on motion for good cause and on notice to all parties and the person to be examined

c. Interrogatories Rule 33 (interrogatories) May serve only 25 Party must respond within 30 days A party must object to interrogatory questions with specificity Rule 36: (request for admissions) A party may request a party admit or deny something (e.g. a document or statement) as long as it is about: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents. Non-response is an admission: must respond within 30 days of service specificity required & lack of knowledge is okay: must answer in the affirmative or object with specificity. Party may reasonably conclude neither an admission or denial if they lack knowledge. d. Expert reports e. Depositions Rule 30(d)(1): limited to 1 day and seven hours. Rule 30(d)(2): sanctions for any person that impedes or delays a fair examination f. Pretrial witness lists and the pretrial order 4. Ensuring Compliance Review rule 26(g)(3): know attorneys fees are at stake Rule 37: allows monetary dismissals and expenses to dismissal of the case C. Limitations on Discovery in an Adversary System 1. Privilege Rule 26(b)(1) contains an express exception for privileged materials Privilege protects information from certain sources, on certain topics. Privilege logs denotes a description of a document that would have otherwise been produced if not for privilege KNOW rule 26(b)(5)(B): Delivering party notifies of mistake and the privilege Receiver must return or destroy the information Delivering party must preserve the information 2. Trial Preparation Material

Rule: This case stands for the principle that attorney thoughts or workproduct are not discoverable. [Rule 26 (b)(3)(a): Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)][Protection against disclosure: protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney] o Exceptions: if witnesses are unavailable, or where facts remain hidden elsewhere that are essential to prepare its case or not [the 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.]

3. Expert Information Experts arise when specialized knowledge is needed to shine light upon the truth of what happened Experts can be fact witnesses Daubert motions: each expert must actually be an expert on the issue they intend to testify about. Rule 26 (a)(2): experts must be identified and present a report regarding their testimony o Disclosure of expert 90 days before trial o May depose only after report is given Rule 26 (b)(4): protects drafts of reports, communications between attorneys and experts Experts can be burned on the stand if you can show theyve contradicted themselves before 4. Discovery and Privacy

Rule 26(c)(1): The court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or undue burden or expense

D. Ensuring Compliance and Controlling Abuse of Discovery 1. Anatomy of Discovery Abuses too little information discovered (stonewalling) Too much information discovered: when one party seeks more information than is necessary for their case Mismatched discovery: occurs where two parties have unequal litigation resources 2. Remedies: Management and Sanctions Default judgments require due process

Rule 37 [sanctions for bad faith discovery]: monetary dismissals and expenses to dismissal of the case o routine cleansing of data Rule: while a litigant (and its key players) is under no duty to keep or retain every document in its possessionit is under a duty to preserve what itreasonably should know is: o Relevant in the action o Reasonably calculated to lead to discovery of admissible evidence o Reasonably likely to be requested during discovery o The subject of the pending discovery request

Chapter 8: Resolution without Trial (523-607)(628-671) The Trier and the Trial (607-628) Appeal (673-713) Respect for judgments (715-735)