Discovery Basic Purposes: 1) Permit preservation of evidence that might otherwise be lost before trial 2) Provide mechanism for narrowing the issues in dispute between the parties 3) Permit the parties to acquire greater information about their own and the other side’s case -Quicker and fairer settlement of disputes -Litigation is not a competition – it’s an exercise in justice Discovery Devices: Sanctions (Rule 37) 1) Motion for Order Compelling Discovery (in the court where action is pending; if not a party, district where discovery is being done) – Must include certification that parties met and conferred. -Evasive or incomplete answer = failure to disclose 2) Expenses and Sanctions – rx expenses (including attorney’s fees), contempt (failure to swear in), dismissal, default judgment Rule 26(a) – Required Initial Disclosures (must give without awaiting a discovery request with 14 days at a 26(f) conference) -All parties to the action must disclose to all other parties in the action -Categories of Information To Be Disclosed: o names, addresses and discoverable information about each person who is likely to have information (potential witnesses except those who are used only for impeachment; o copy or description by category and location of all documents, tangible things and data that deposing party may use to support claims/defenses (except for impeachment); o plan for computation of damages and things used to support that; o insurance agreements (may facilitate settlement if you know policy limits) -Exempt From Initial Disclosure: o Review of admin. records; o Habeas corpus proceedings; o Action brought by people in custody w/no counsel; o Enforcement or quashing of admin. summons or sdt; o Action by US to recover benefits, collect student loans; o Proceeding ancillary to proceedings in other courts; o Enforcement of an arbitration award -Duty to Supplement – If a party learns a prior response is in some “material respect incomplete or incorrect” then the party must supplement all discovery responses Rule 27 – Depositions (not an interview…) -Oral Depositions o Most common, now can be on video to be played back in court o Anyone can be deposed – parties or witnesses o Normally, you just want to depose the other parties’ witnesses (unless your own witnesses and parties cannot be at trial or you want to preserve their testimony because they are old and sick) o Give Notice Other party can disagree with time/place but it is not common courtesy o Depo can be taken anywhere subject to 26(c) -Written Depos – questions given ahead of time to court reporter who swears in and administers the depo o Pro: Lawyer does not have to be there o Con: No follow up questions -Restrictions o 10 people, 1 day per person, 7 hours per person o Parties can always ask court for more or stip to more Rule 33 – Interrogatories (Rogs) -For vacuuming up the extra stuff → served only on parties! -Written question that require written answers under oath →required to provide facts that are rx available to them even if it means reviewing documents -Usu. answered by atty, so not an effective device for ascertaining the testimony or credibility of witnesses -Good way to get objective information, including names, dates and lists of documents (and who you need to take depos of etc…) -Can be used to clarify the allegations set forth in pleadings -Presumptive limit of 25 (including sub parts) → can be modified by stip or court order -Ok to define terms in the interrogatory (esp. for industry specific terms) Rule 34 – Production of Documents and Things -One party can require another party to produce for inspection, copying or testing all relevant documents or other tangible things -Most cases → used to compel the production of relevant documents -Find out what docs you need from rogs Rule 35 – Medical Examination -When the health, physical or mental condition of a party is in controversy, the court may order the party to submit to a physical or mental examination -Requires a court order -Appropriate only where movant shows “good cause” and the mental and physical condition is in controversy Scope of Discovery -Admissibility and The Rules of Evidence Rule 26(b)(1) – specifically provides that relevant info found in discovery need not be admissible at trial if the discovery appears rx calculated to lead to the discovery of admissible evidence -Privileged Material Rule 26 – Relatively narrow category of material, delineated under rules of evidence. Just because info is personal, confidential or intended to be secret, does not necessarily make it privileged for purposes of discovery. o Privileged Relationships: confidential communications btwn. atty/client, priest/parishioner, husband/wife → conversation is privileged, not underlying facts o Policy considerations: Good for “franker disclosure” in an attorney’s office but narrowly construed and is waived by disclosure to a 3rd party. o Rule 26(b)(5) – Party must claim the privilege “expressly” and describe in sufficient detail the documents, communications or things not produced so as to enable the parties to assess the applicability of the privilege. Brief description or summary of the contents of the document Date document was prepared Person or persons who prepared the document To whom the document was directed, or for whom the document was prepared The purpose in preparing the document The privilege(s) asserted as to that document How each element of the privilege(s) is/are met as to that document o Confidential Information (not privileged): Some courts have held where confidential information is sought, the burden is on the party seeking discovery to establish that the info sought is relevant and necessary to the case. Ct has authority under Rule 26(c) to issue a protective order placing conditions on disclosure or protecting against disclosure Trade secret, sexual history etc… o Attorney-Client Privilege: Corporations: Within a corporation, there is no test to determine who the privilege extends to (although only “control group” has been deemed too narrow) → privilege only applies where the communication was needed to supply a basis for legal advice, concerning matters within the scope of employee’s duties and treated as confidential w/in the corporation