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Discovery, generally into three parts: (1) Information; (2) Device; (3) Timing. [316] What the 1983 amendments require is, at heart, very simple: good faith and common sense. Counsel can satisfy these requirements by not using or responding to discovery for some ulterior purpose and by exercising straight forward judgment. The questions are simply stated: 1) what information am I really likely to need and 2) what is the most cost effective way to get it. Tailoring probes and responses to the real issues in the case at hand, rather than relying on stock questions or knee jerk objections and evasive responses, is all that is required [319] B. THE DISCOVERY DEVICES DISCOVERY DEVICES RULE 34 REQUEST FOR PRODUCTION OF DOCUMENT RULE 45 SUBPOENA RULE 33 INTERROGATORIES RULE 30 ORAL DEPOSITION RULE 31 WRITTEN DEPOSITION RULE 35 PHYSICAL OR MENTAL EXAMINATION RULE 36 REQUEST FOR ADMISSION It is particularly important to understand which discovery devices are available against parties and as to non-parties to the case. Additionally, ask yourselves how and why you would chose each discovery device. I have assigned roles to our panel for tomorrow, based on the Dupont handout that I gave you some weeks ago. We will discuss the different discovery devices in this context. In addition to the Discovery Devices list, see also Rule 32, on the use of discovery at trial. If he would be a great lawyer, he must first consent to become a great drudge.--Daniel Webster [I believe that the explanations and descriptions in this area are very important, in addition to a careful reading of the rules, however, I will only excerpt the material I emphasized in class.] [320] This "influence" test derives from the decision in Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). [321] Plaintiff failed to produce the records in the manner ordered, arguing that it lacked "control" of them because applicable Swiss penal law prohibited their production, and criminal sanctions might be imposed as a result of compliance with the production order. The Supreme Court held that plaintiff had "control" of the records for purposes of Rule 34, because plaintiff "is in a most advantageous position to plead with its own sovereign for relaxation of penal laws * * *." [322] If a party wants to examine materials possessed by a nonparty, a similar procedure is used but a subpoena is required. Rule 45(a)(1)(C) authorizes a subpoena to command a nonparty to produce designated documents in its control or permit inspection of premises. [322] In re U.S. Financial Securities Litigation, 74 F.R.D. 497 (S.D.Cal.1975) (381 pages of interrogatories containing almost 3,000 questions held unduly burdensome). This sort of abuse prompted many district courts to adopt local rules, relying on their authority under Rule 83, explicitly limiting interrogatories to a designated number (ranging from 20 to 50). In 1993, Rule 33(a) itself was amended to limit the number of interrogatories to 25 per party absent stipulation or court order. [324] Rule 30(b)(1) allows any party to schedule a deposition on "reasonable notice" in writing. The interrogating party can also ask the witness to bring documents along, but that invokes the time limits of Rule 34. See Rule 30(b)(5). If the witness is a party nothing further need be done to compel his attendance, and, if he fails to appear Rule 37 sanctions can be applied against him. See Rule 37(d). Otherwise, the party seeking discovery must also provide for the attendance of the witness, usually by serving a subpoena on him. See Rule 45. [325] Although the main actors are the interrogating attorney and the witness, the witness's attorney is not inactive. Instead, she listens to the questions and can object when they are improper. On one level, the pressure to object is moderate since the only objections that are waived are objections on grounds that could be obviated if made at the deposition. Rule 32(d)(3)(A). Thus, where the objection is to the form of the question (that it is leading, or compound, or confusing) the question could be rephrased to avoid the difficulty. Indeed, Rule 30(c) states that if there are objections, "the examination shall proceed, with the testimony being taken subject to objections," so objections seem ineffective even to prevent improper inquires. Why, then, would the lawyer object? [WHY INDEED?] [326] In Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), the Supreme Court explained the proper application of Rule 35. [It is important to understand this ruling]. [328-330] Discovery Sequence and tactics. [Understanding this area will help you to argue the practical aspects of a discovery determination.] Notes: [330] 1. Discovery from nonparties: As suggested above, discovery from nonparties is more limited than discovery from parties. Note, for example, that there is no way to send interrogatories to nonparties, and nonparties are not subject to court-ordered physical examinations under Rule 35. Rule 45 allows discovery from nonparties comparable to party discovery under Rules 30 (depositions) and 34 (document requests) because it authorizes a party to use a subpoena to compel a nonparty to appear and testify at a deposition or to allow inspection of documents or premises. [333] 2. Discovery from corporate party: Discovery against a corporate or other organizational party may be more difficult because both responsibility and knowledge are diffuse. ... "The project manager for Dalkon Shield explains that a particular question should have gone to the medical department, the medical department representative explains that the question was really [in] the bailiwick of the quality control department. The quality control department representative explains that the project manager was the one with the authority to make a decision on that question. * * * [I]t is not at all unusual for the hard questions posed in Dalkon Shield cases to be unanswerable by anyone from Robins." [332] 4. Admissibility at trial: . . . [332-333] Rule 32(a) provides some specifics regarding depositions: Beyond uses allowed by the Federal Rules of Evidence, any deposition may be used for impeachment at trial, the deposition of a party (or a representative designated under Rule 30(b)(6)) may be used by an adverse party for any purpose, and the deposition of a witness may be used for any purpose if the witness is not present at trial and his absence has not been procured by the party offering the deposition. This last provision has been interpreted to permit a plaintiff from California to offer her own deposition in evidence in a trial in New York rather than travel to New York to testify personally. See Richmond v. Brooks, 227 F.2d 490 (2d Cir.1955). [333] 6. Duty to supplement: . . . In 1993, Rule 26(e) was amended to expand the duty to supplement so that it applies whenever "the response is in some material respect incomplete or incorrect." Note that Rule 26(e) does not apply if the additional information has "otherwise been made known to the other parties during the discovery process or in writing." [334] Managing the scope and burden of Discovery Davis v. Ross [Here, there are four discovery requests. (1) Financial condition to be used to prove punitive damages. Ruling: It is within the scope of discovery for 26(b)(1), BUT applicable substantive law prevents it's discovery until after a jury finding. (2) Lawyer. Most of it not discoverable, but some discoverable. (3) Other employee complaints about Ms. Ross. Not discoverable at all. Not an issue. (4) Psychiatric records. Discoverable. Consider the court's attitudes towards rather sensitive information. Consider how a person becomes exposed by the discovery process.] [Consider the discussion of Relevance in note 2 at pages 337-338] [Note 3, 338: Consider the explanation for requiring disclosure of Insurance coverage under Rule 26(a)(1)(D). ]The [rule] is limited to insurance coverage, which should be distinguished from any other facts concerning defendant's financial status (1) because insurance is an asset created specifically to satisfy the claim; (2) because the insurance company ordinarily controls the litigation; (3) because information about coverage is available only from defendant or his insurer; and (4) because disclosure does not involve a significant invasion of privacy. [Note 6 page 340, Coca Cola Formula case, see also Note 9 at page 398]. [340] Except for a few privileged matters, nothing is sacred in civil litigation; even the legendary barriers erected by the Coca-Cola Company to keep its formulae from the world must fall if the formulae are needed to allow plaintiffs and the Court to determine the truth in these disputes. [341] 7. Should protective orders also be granted for business information that is not, like the formula for Coca-Cola, a trade secret? In recent years there has been much consternation about the possibility that information about allegedly dangerous products has been produced through discovery but has been kept from the general public under protective orders. See, e.g., Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir.1986), cert. denied, 484 U.S. 976, 108 S.Ct. 487, 98 L.Ed.2d 485 (1987) (protective order applied to all discovery in tobacco products liability litigation). Some states have imposed restrictions on protective orders in cases involving "public health hazards." See Florida "Sunshine in Litigation Act," Fla.Stats. Sec. 69.081; Tex.R.Civ.P. 76a. Should discovery be used as a device to provide the public with information? For discussion see Marcus, The Discovery Confidentiality Controversy, 1991 U.Ill.L.Rev. 457; Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv.L.Rev. 427 (1991). Kozlowski v. Sears, Roebuck, p. 342 Timeline Nov. 11, 1970 Injuries April 9, 1975 complaint July 17, 1975 Request Aug. 8, 1975 motion to quash Jan. 22, 1976 magistrate's order April 16, 197 P's Motion for default, R. 37 July 14, 1976 Court entered default, but _ Sep. 14, 1976 motion for removal of default Sep. 15, 1976 Final deadline for compliance Oct. 20, 1976 hearing Final Ruling default stays [342] On July 17, 1975, the plaintiff filed a "Request to Produce" pursuant to Rule 34, Federal Rules of Civil Procedure, seeking, among other items, a record of all complaints and communications concerning personal injuries or death allegedly caused by the burning of children's nightwear which had been manufactured or marketed by the defendant, Sears, Roebuck & Co. [343] In the instant case, information concerning accidents similar to the one alleged in the complaint is clearly relevant to the issues of whether the pajamas allegedly marketed by the defendant were an unreasonably dangerous product and whether the defendant knew, or in the exercise of due care should have known, of that danger. Furthermore, even though the records of similar suits might be inadmissible in evidence (Narring v. Sears, Roebuck & Co., 59 Mich.App. 717, 229 N.W.2d 901 (1975) (circumstances of prior accident were too dissimilar to accident alleged in complaint)), the records might contain facts which would lead to the discovery of admissible evidence. See Rule 26(b)(1). Accordingly, most courts have held that the existence and nature of other complaints in product liability cases is a proper subject for pretrial discovery. [343-344] by utilizing a system of record-keeping which conceals rather than discloses relevant records, or makes it unduly difficult to identify or locate them, thus rendering the production of the documents an excessively burdensome and costly expedition. To allow a defendant whose business generates massive records to frustrate discovery by creating an inadequate filing system, and then claiming undue burden, would defeat the purposes of the discovery rules. [344] The defendant's apparent failure in this case to pose any inquiry to Russell Mills, Inc., when a similar query proved fruitful in another case, undermines the defendant's assertion that it has produced all documents available to it This Court will not shift the financial burden of discovery onto the discovering party, in this case an indigent plaintiff, where the costliness of the discovery procedure involved is entirely a product of the defendant's self-serving indexing scheme over which the plaintiff has no control. [347] D. EXEMPTIONS FROM DISCOVERY Hello everyone. I wanted to let you know that I will be handing out your practical project next week. You will be required to draft certain pleadings, based on a specific factual situation. I will identify the groups that will work together on developing the pleading set. The deadlines for completion will be well after Spring Break. In your review, pay particular attention to Federal Rules 26(b)(1), 26(b)(3) parr. 1 and parr. 2; Rule 30(a), 30(c) & 30(d)(1). From our casebook: [347] HICKMAN v. TAYLOR [348] It is not without reason that various safeguards have been established to preclude unwarranted excursions into the privacy of a man's work. At the same time, public policy supports reasonable and necessary inquiries. Properly to balance these competing interests is a delicate and difficult task. A public hearing was held on March 4, 1943, before the United States Steamboat Inspectors, at which the four survivors were examined. This testimony was recorded and made available to all interested parties. Shortly thereafter, Fortenbaugh privately interviewed the survivors and took statements from them with an eye toward the anticipated litigation; the survivors signed these statements on March 29. Fortenbaugh also interviewed other persons believed to have some information relating to the accident and in some cases he made memoranda of what they told him. At the time when Fortenbaugh secured the statements of the survivors, representatives of two of the deceased crew members had been in communication with him. The 38th interrogatory read: "State whether any statements of the members of the crews of the Tugs 'J.M. Taylor' and 'Philadelphia' or of any other vessel were taken in connection with the towing of the car float and the sinking of the Tug "John M. Taylor'. Attach hereto exact copies of all such statements if in writing, and if oral, set forth in detail the exact provisions of any such oral statements or reports." Supplemental interrogatories asked whether any oral or written statements, records, reports or other memoranda had been made concerning any matter relative to the towing operation, the sinking of the tug, the salvaging and repair of the [349] tug, and the death of the deceased. If the answer was in the affirmative, the tug owners were then requested to set forth the nature of all such records, reports, statements or other memoranda. [349] They did so on the ground that such requests called "for privileged matter obtained in preparation for litigation" and constituted "an attempt to obtain indirectly counsel's private files." It was claimed that answering these requests "would involve practically turning over not only the complete files, but also the telephone records and, almost, the thoughts of counsel." [350] It concluded that the materials sought were not covered by the attorney-client privilege because "the protective cloak of this privilege does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation. Nor does this privilege concern the memoranda, briefs, communications and other writings prepared by counsel for his own use in prosecuting his client's case."] [RULE] We are thus dealing with an attempt to secure the production of written statements and mental impressions contained in the files and the mind of the attorney Fortenbaugh without any showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner's case or cause him any hardship or injustice. [351] In our opinion, neither Rule 26 nor any other rule dealing with discovery contemplates production under such circumstances. That is not because the subject matter is privileged or irrelevant, as those concepts are used in these rules. Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. "work product of the lawyer." Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. [352] Where relevant and non-privileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty. [353] Justice Jackson, Concurring [353] But a common law trial is and always should be an adversary proceeding. Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary. [353] I can conceive of no practice more demoralizing to the Bar than to require a lawyer to write out and deliver to his adversary an account of what witnesses have told him. Even if his recollection were perfect, the statement would be his language permeated with his inferences. [354] And what is the lawyer to do who has interviewed one whom he believes to be a biased, lying or hostile witness to get his unfavorable statements and know what to meet? He must record and deliver such statements even though he would not vouch for the credibility of the witness by calling him. [354] Notes and Questions [355] 2. If the idea behind work product protection is to preserve some element of surprise for trial, similar concerns have surfaced in connection with certain types of impeachment evidence which might be rendered if the witness could find out about it before testifying. As one judge put it, "[a] certain amount of surprise is often a catalyst which precipitates the truth. [355] 3. . . ."In recent years, the boundaries of discovery have steadily expanded, and it appears that the practice of taking the deposition of opposing counsel has become an increasingly popular vehicle of discovery. [See Fed. R. Civ. P. 30(a), 30(c), 30(d)(1), 26(b)(3)]. Bill Bauer ceo@creditwrench.com CLICK HERE FOR CREDITWRENCH WEBSITE |