Discover Bank Civil Complaint

							Civil procedure Feb. 20

General concepts of discovery
          Handout problem
• FYI – the problem you have been
  assigned for next Wed was an exam
  question two years ago. It was from an in
  class exam – allotted time – one hour.

• REMINDER – AEP tutorials on Friday

• REMINDER – PILA Auction on Saturday
      Review – Relation Back
• After SOL – if want to amend complaint, new
  claim must relate back to claim in orig’l
  complaint; new claims must arise from same t/a
  or occur as claim in orig’l complaint
• New parties – claims must arise from same t/a
  or occur; new party must have rec’d adeq notice
  & not be prej & new party knew/should have
  known that but for a mistake, they would have
  been named in the original lawsuit.
            Policy/purpose
• Why have discovery?

• What’s the good/bad about allowing
  discovery?

• What are the policy tensions in drafting
  discovery rules (what are the rules drafters
  trying to balance)
        The history of discovery
• Pre-rules – very limited (if any) discovery (problems with
  this approach??)

• Initial Rules – wide ranging discovery of anything
  relevant to the subject matter of the claim (problems with
  this approach??)

• Current Rules – automatic disclosure of
  witnesses/documents/clearly relevant info (insur policies
  & damage computations) at the start of the lawsuit with a
  duty to later supplement (problems with this
  approach???)
       Automatic Disclosures
• Can you refuse to disclose if:
• A. Haven’t fully finished investigation;



• B. The other side has not met
  itsdisclosure obligations (I won’t show you
  mine unless you show me yours)
  General Scope of Discovery
• What Rule defines the general scope of
  discovery? What does it say about what is
  generally discoverable?
               Relevance

• Does the evidence have ANY tendency
  to prove/disprove a fact of consequence
  (i.e. a fact going to an element of a claim
  or defense or a fact going to credibility)
• -- look to substantive law to find elements
  of claims/defenses
              Hearsay, etc
• I want to discover what a witness told Mr.
  X about who had the red light. My
  opponent objects that this is hearsay and
  thus inadmissible at trial and b/c it’s
  inadmissible at trial, it’s not relevant in
  terms of discovery. Assume opposing
  counsel is correct and the statement is
  inadmissible hearsay. Can I still discover
  what the witness said? Why/why not?
           Limits to discovery
• What are the general limits to discovery stated in
  R. 26(b)(2)

• If you believe discovery requests (e.g.
  interrogatories) ask for information that the other
  side is not entitled to have, what should you do?

• If your opponent refuses to disclose information
  you think you are entitled to get, what should
  you do?
   Discovery of electronic data

• Area of much future potential litigation
  about what is discoverable, etc. Why?
        Davis v. Precoat Metals
               CB p. 409
• What was the basis of plaintiffs’ underlying
  claim (why were the suing)?

• What will plaintiffs have to prove to prevail
  on this claim?

• How can defendants defeat this claim?
              Davis cont’d

• How does the information sought relate to
  plaintiffs’ claims?

• Any tactical reasons to seek this
  information?
                    What if
• Plaintiffs sought the
  following information:

• All information in the
  control or possession
  of the defendant that
  relates in any way to
  any PreCoat
  employee’s complaint
  of discrimination
         Holding/reasoning
• What was the holding/reasoning in Davis
  v. Precoat.
          Stefan v. Cheney
• Explain what is going on in Steffan and
  identify the contested discovery?

• Why is the plaintiff arguing that the
  requested discovery is impermissible (i.e.
  not relevant)?

• What is the court’s holding/reasoning?
    Comparing Davis & Stefan
If Davis is correctly decided, can Steffan be
   right?



• Are Steffan and Davis consistent
  (Why/why not?)
              Stefan hypo
• Suppose Stefan is reinstated and again
  discharged, this time for sexual behavior.
  He sues and the gov’t again deposes him
  and asks about instances of sexual
  conduct. Must he answer? Why/why not?
                    Q 3 p. 412
• Could the defendant in Davis immediately challenge the
  district court’s ruling? Why/why not?

• Why was Stefan an appellate court ruling?

• When should you instruct your clients not to answer a
  question in a deposition? What are the risks if you do
  so?

• How much power rests in the hands of the district court
  when it comes to discovery?
           Book hypos – p. 413
• Albert & Barb collide. A sues B alleging negligence. B
  denies liability. A seeks to discover how much money B
  has in the bank (b/c he wants to know whether she will
  be capable of satisfying a damage judgment).
• Looking only at whether this information is relevant to
  proving the negligence claim, is this information relevant
  and discoverable?
• Would your analysis change if there was a punitive
  damages claim against B?
• A also seeks to discover whether B has a liability insur
  policy and the amount of that policy. Is that relevant to
  the claim/defense? Is it discoverable? Why?
       Question 5 [be sure to read
          26(a)(1) & 26(b)(1)]
• A alleges B “negligently collided” with his car; B denies
  negligence. A’s lawyer has gotten copies of A’s medical
  and wage records and has spoken with a number of
  witnesses. A’s lawyer plans to show B ran a red light, hit
  A and as a result A lost wages & incurred medical
  expenses. A witness will testify B ran the red light.

• A has a bad driving record and himself has tickets for
  running red lights; his job situation was iffy and his boss
  might testify he was about to be fired. What disclosures
  must A make under 26a1?
                  #5 cont’d
• B’s lawyer has interviewed her and knows the
  name/address of a mechanic who can testify
  that her car was well maintained. He also has
  interviewed her boss w/whom she had a major
  argument just before the wreck. And, there is a
  bystander who saw the wreck – a vagrant with a
  long history of minor drug arrests - but he says
  he thinks B had the green light. Explain how
  each of these witnesses might have info relevant
  to the lawsuit. Which ones should B’s lawyer
  supply under 26a1a?
                         #6
• B told her lawyer she had a violent argument
  with her boss just before the wreck and was still
  fuming as she drove. Her lawyer is also
  debating about whether to use the vagrant’s
  testimony. Must B disclose her boss and/or the
  vagrant pursuant to 26(a)(1)?
• What if, after initial disclosures, B is served with
  an interrogatory asking her to supply the name
  of any witness with info relevant to the p’s claim.
  Must she now list her boss as such a witness?
          2000 Amendments
• 2000 Amendments changed the scope of
  discovery from “matters relevant to the subject
  matter involved in the pending action” to
  “matters relevant to the claim or defense of any
  party”.

• What’s the difference between these two
  standards?

• Does the change have an implication for how
  you draft a complaint?
                     Hypos
• P sues the manufacturer of a window washing
  platform saying it failed to warn him of the proper
  way to use the platform. Defendant seeks to
  discover information about whether the p was
  wearing a safety belt and hard hat. P objects on
  the ground that the information is not relevant to
  his claim or a defense because all the experts
  agree that neither a safety belt nor a hard hat
  would have mitigated or prevented his injuries.
  Make the defendant’s relevance argument.
        Same hypo – cont’d
• Plaintiff sends the defendant an
  interrogatory seeking information about
  any reported injuries involving the same
  model platform that were allegedly caused
  by either the platform’s design or by the
  failure to warn about the proper use of the
  platform. Is this request relevant to the
  plaintiff’s claim (why/why not)? Is it
  relevant to the subject matter of his claim?
  (why/why not)?
         Same hypo – q #3
• Assume plaintiff asks for information
  relating to any complaints received about
  the platform that is the subject matter of
  this lawsuit. What is the defendant’s best
  response to this discovery request?