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Civil Procedure - Module 9
Class Notes for October 23, 2001
Civil Discovery – Class I
I. FRAMEWORK FOR INITIAL EVALUATION AND GENERATION OF
A LITIGATION PLAN
A. Basic Economic Valuation Model of Civil Litigation
Mike Anderson’s Formulation:
EV = (Cost of losing)•Prob(losing) + (Gain from wnning)•Prob(winning)
Cost of losing equals litigation costs + liability to opposing party
Gain from winning equals damages or other gains received minus
transaction costs
Priest/Klein Formulation
EV = V x Pr - C
Expected value, from plaintiffs perspective, equals the gain from
winning (including compensable costs and fees) times the
probability of winning, minus non-compensable costs and fees.
B. The Process of Outcome Prediction
1. Disaggregation of overall case into ultimate issues on which
one must prevail to achieve favorable outcome.
2. Ability to identify classes of outcome-diagnostic facts
(including “legal facts”) and to marshall and get into the
record the discrete pieces of evidence that will establish the
essential elements (ultimate) facts of one’s case and/or
disestablish the elements of the opponent’s case.
3. The ability to identify specific areas of legal and factual
dispute, and to assess the impact on probabilities of success or
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failure of such things as witness credibility, narrative
coherence and emotional appeal, ideological predispositions
of bench and jury pool.
4. Centrality of discovery in the case valuation process.
C. Societal Interests in Civil Litigation
1. Outcome accuracy (identify violations of law; fairly
compensate wronged parties; enhance law’s deterrent
efficacy)
2. Participant and generalized societal satisfaction with process
(legitimacy)
a. Access to the system
b. Subjective sense of “procedural voice”
c. Faith in procedural and substantive fairness
3. Efficiency (impacts both access and belief in fairness as well
as having value of its own)
D. Process and Problems re: Predicting Outcomes and Achieving
Accurate Results
1. Complex nature of predicting probabilities of success or
failure in the face of more or less extreme conditions of
factual and/or legal indeterminacy.
2. Centrality of access to outcome relevant information to that
process
3. Information asymmetries and potential exploitation of
preferential access to outcome-diagnostic information, leading
to gaming/strategic evasion of disclosure
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4. Centrality of transaction costs in ability to participate
meaningfully in the adversarial litigation process. Possibility
of strategic transaction cost impositions on opposing parties to
force sub-optimal settlements or litigation to conclusion (note
impact on system’s perceived legitimacy when parties unable
to litigate to conclusion because of transaction costs)
E. History and Current Conceptions of the Role of Discovery in
Civil Litigation
1. Civil discovery as a recent innovation. 1938 Federal Rules of
Civil Procedure
2. Prior to that, role of surprise and trial lawyer skill. Even
documents produced, by subpoena, at time of trial.
3. Note increasing factual complexity over time, making reliance
on surprise, lawyer skill, at production at time of trial highly
problematical in terms of facilitating juridical accuracy
4. Notice pleading, liberal discovery, close judicial supervision
to promote efficiency and deter abuse all part of a coherent
judicial philosophy underlying the federal rules.
5. How system designed to work:
1. Notice pleading: inform parties of nature of claims
2. Discovery: Refine contentions; eliminate, to the extent
consistent with countervailing judicial values (such as
those underlying evidentiary privileges), information
asymmetries, and thereby promote both accuracy and
efficiency of the civil litigation system
3. Promote settlement before trial by removing
impediments to accurate prediction of outcomes and
accurate case valuation.
F. Most civil Cases Are Won or Lost not at Trial, But in Discovery
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1. “The Verdict” – Where did the breakthrough come from?
2. Erin Brokovitch – Where were the breakthroughs?
ABA statement on p. 338 got it right:
“…victory is not in the scathing cross, but in the tedious review of
documents. Success is in the details, the expertly drafted interrogatories or
request for records, and in the ingenious strategy to obtain the statement allegedly
protected by privilege. For it is Discovery which we do. The motions, the
papers, the depositions. This is the numbing, ditch digging work that determines
the winner…”
II. Crafting an Initial Disclosure and Discovery Plan: Conceptual
Framework
THINK BACKWARDS!
What will you have to establish to prove your case?
Step 1. Each Claim for Relief – Plot Essential Elements of Proof and
Defense
Step 2: For each element of claim and defense, identify, where
needed, the applicable legal standards and the key legal and
factual issues that your review of existing relevant authority
tells you are likely to arise in relation to that element
Step 3. Each Component of Cognizable Damages or other Relief –
Plot Essential Elements of Proof/Defense
Step 4: For each element of each form of relief identified in Step 3,
identify, where needed, the applicable legal standards and key
legal and factual issues that your review of existing relevant
authority tells you are likely to arise.
Step 5. For each element/issue identified in steps 1-4, identify the
facts you have. Determine whether they suggest a particular
“theory of the case,” for your own side and for the other side
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Step 6: For each element/issue, identify facts you still need, including
ways to rebut what you anticipate the other side will argue or
attempt to prove.
Step 7: For each fact you need, figure out how to go about getting it.
To be able to do this, you need to understand and know how
to use the basic discovery devices.
Step 8: With respect to items of discovery needed, identify any
anticipated disputes re: discoverability, privilege, undue
burden, etc., and work out the details on your position/strategy
re: each.
III. Discovery Devices
A. Materials obtained in initial disclosures under Rule 26(a)
B. Informal fact investigation
1. Informal witness interviews and document collection
2. The obtaining of information from government agencies and
public records repositories
C. Formal Discovery Techniques
1. Interrogatories (Rule 33)
2. Document Requests (Rule 34)
3. Depositions [Rule 30 -- Note utility of 30(b)(6)]
4. Requests for Admissions (Rule 36)
5. Development of Expert Opinion Testimony (Rule 26)
6. Physical or Mental Examination (Rule 35)
7. Entry Upon Land (Rule 34)
8. Expert Witness Related Disclosures FRCP Rule 26(b)
D. Potential Obstacles to Obtaining Information in Discovery
1. Objections based on the scope of discovery rule, 26(b)(1)
2. Objections based on other limitations, Rule 26(b)(2); 26(d);
30(a)(2) & (d), Rule 33(a);
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3. Limitations resulting from the entry of protective orders under
the standards set out in Rule 26(c);
4. Withholding of information pursuant to a claim of privilege
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