Discovery - Civil Procedure - Lecture Slides, Slides of Civil procedure

Download Discovery - Civil Procedure - Lecture Slides and more Slides Civil procedure in PDF only on Docsity! discovery Docsity.com scope of discovery Docsity.com Your client tells you that he was looking the other way when he drove into the plaintiff. Your client receives an interrogatory asking whether he said to you that he was looking the other way when he drove into the plaintiff. Does your client have to answer the interrogatory? Docsity.com If the interrogatory asks whether your client was looking the other way when he drove into the plaintiff does he have to answer? What if your client says he was not looking the other way on the stand? Docsity.com - Your client tells you that he was looking the other way when he drove into the plaintiff. - Subsequently he credibly tells you that when he said he was not actually looking the other way at that moment, he was feeling guilty because he had done so about 20 second before the accident - Your client receives an interrogatory asking whether he said to you that he was looking the other way when he drove into the plaintiff. - Does your client have to answer the interrogatory? Docsity.com 26(b)(3)(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Docsity.com 26(b)(3)(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation. Docsity.com An interrogatory asks, “Whom have you interviewed in connection with this case and did you make any reports, memos, etc.” May you claim that the information is work-product under 26(b)(3) and/or Hickman? Docsity.com Would it matter if the plaintiff served you with an interrogatory asking for the substance of the witness statements? Docsity.com What if the document was instead an unsolicited letter from a witness? Docsity.com You are being sued for negligence in connection with a car accident. The plaintiff serves you with a document request asking for: 1) Witness statements taken by your lawyer a year ago – only a few hours after the accident 2) Your lawyer’s notes on the interviews with the witnesses Does the Work Product Privilege apply? Docsity.com Experts Docsity.com You give an expert you will call as a witness at trial some witness statements to use in determining his opinion. Can the material be obtained by the other side without a showing of substantial need? Docsity.com 26(a)(2) Disclosure of Expert Testimony. (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; … Docsity.com 26(b)(4)(D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is no1t expected to be called as a witness at trial. But a party may do so only: (i) as provided in Rule 35(b) [physical examination] or (ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. Docsity.com D . . . - did not turn over disclosure materials - made frivolous discovery requests - and illegitimately refused to turn over materials that were within the scope of your discovery requests Docsity.com 26(g) Signing Disclosures and Discovery Requests, Responses, and Objections. (1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name — or by the party personally, if unrepresented — and must state the signer’s address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry: (A) with respect to a disclosure, it is complete and correct as of the time it is made; and (B) with respect to a discovery request, response, or objection, it is: (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action. ... (3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation. Docsity.com 37(c) Failure to Disclose; to Supplement an Earlier Response, or to Admit. (1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Docsity.com terminating litigation before trial 31 Docsity.com 12(b)(6) failure to state a claim 32 Docsity.com