1/8/04 DISCOVERY – RULE 26 This is where we try and prove our case. This is where we find the fact that will be presented to the jury. Discovery is a formal method for finding info. A lot of times we use informal methods of picking up the phone and calling the witnesses. Rule 26(a) – Required disclosures Out of the gate you have the complaint and the answer, and the parties are required to provide certain info without any requests. List of witnesses and documents, etc. 26(b) – Scope and Limits Read for what is discoverable When the person does not want to give up the info, file a motion to compel. 1/13/04 p.497 talks about the timeline RULES 26 – (a) Req’d Disclosures (b) Any matter . . . relevant to claim or defense. . .exceptions . . .i. privileged info (attny/client; priest; 5th Am; Trade Secrets; ). If the client is a corporation then the attny privilege is extended to all employees of the corporation based on the Upjohn holding (p. 495). (c) Protective order – basically says this is discoverable but I don’t want it to be out in the public, can we get it sealed. 27 – 28 – 29 – 30 – 496 a. Names, addresses, documents, data, how you are computing damages. No witnesses, so you just have to list your client. b. Similar to above. 499 1. a. Interrogatories can not be served on non-parties so the store does not need to answer. p. 506 1. (a) Can’t start with the discovery process before disclosure.
(b) We do not allow people to simply not show up to the deposition. If you disagree you seek judicial guidance or seek a protective order. There is a sanction if you simply don’t show up. (c) If you fail to disclose then you will probably not get to use it later on. 3. The jury or the fact finder will be informed that the adversary tried to conceal the witness. 4. Rule 35 applies to parties only, it was not intended to apply to employees of a company. GO to www.cali.org PEPPRDstu165 1/22/04 Different types of experts Testifying Experts – we must disclose under rule 26(a)(2) and they have to give a report and can be deposed. Non-Testifying Experts (consulting expert) Fact Witnesses – these witnesses are listed under 26(a)(1) as a regular witness. 2/12/04 Right to jury in federal law. 7th amendment gives us a right to a jury trial. (1) Suits at common law (2) Value must exceed $20 Rule 38 Basically if your cause of action existed in 1791 at common law, then you would have an right to a trial by jury. 4/20/04 Class Actions SMJ for class actions (1) Ben Hur said that we don’t need complete diversity for Class Actions, only diversity between the class representative and the Main Defendant. (2) There is no aggregation of claims, but there is a split on whether only the class member needs to be over 75000, or does everyone need to be over 75000 (Zahn says everyone). In the jurisdictions where they allow only the class representative, you can attack it saying that the class does not have the commonalities needed.