Download Civil Procedure: Work Product Privilege, Waiver, Expert Testimony Disclosure, and Burdens and more Study notes Civil procedure in PDF only on Docsity! Civil Procedure Key: COA – cause of action, MTD – motion to dismiss I. Work Product “Privilege” a. Materials generated in anticipation of litigation by or for a party or by or for a party’s representative is privileged b. Qualified privilege (can be overcome) for fact work product (not qualified for opinion work product) c. Why privilege fact work product? i. Free rider problem – each side will rely on other side’s work product ii. Too good to use as impeachment – will always be able to point to inconsistency between other side’s fact work product and what their witnesses say on stand 1. Would be constantly arising; creator of fact work product would have to take the stand to say which is correct, potentially impeaching a friendly witness iii. On the other hand, fact work product privilege can be overcome precisely when it is needed to impeach other side’s witnesses (the doctrine is a bit at war with itself) d. A witness, X, who is friendly to the D was interviewed by P’s atty and a statement was drawn up. Is there any way that D can get X’s statement despite the fact that it is work-product? i. 26(b)(3)(C) Previous statement ii. Can get around the work product privilege by asking the friendly witness to obtain the statement—P’s atty must turn the work product over iii. Problem: impeachment. Can get friendly witnesses to get the other side’s impeachment evidence against him iv. Solution: opposing side may depose the witness before turning over the statement v. Why have the rule [26(b)(3)(C)]? To ensure that witness has a chance to verify what he/she said and the way in which it was characterized. vi. CANNOT force a witness to obtain his/her statement (hostile witness). Witness must be willing to obtain the statement and turn it over. Docsity.com II. Waiver a. Atty-clt privilege may be waived, b. Waiver through bringing into issue will also waive the broader context III. Experts a. Disclosure of Expert Testimony i. Problem with giving material to expert witnesses: there must be disclosure to the other side of facts or data relied upon by the expert witness in coming to his conclusion ii. 26(b)(4)(C) limits the information that must be disclosed – only info that was used by the expert to reach his/her conclusion must be disclosed iii. 26(b)(4)(D) Non-testifying experts are treated differently 1. Help build case pre-trial, but are not involved in the trial itself 2. Heightened protection (more so than work product privilege) 3. Must be “exceptional circumstances” to allow discovery (e.g. one side must rely on the other side’s experts) IV. Terminating Litigation Before Trial a. 12(b)(6) MTD for failure to state a claim b. 12(c) motion for judgment on the pleadings i. A motion to dismiss for failure to state a claim will be brought as this after the answer ii. P can also bring this motion if pleadings alone show that he is entitled to relief 1. Eg may say that D’s affirmative defense is legally insufficient and that is all that D has in his defense iii. If one, but not all, of D’s defenses are insufficient, P may move to strike the insufficient defense c. But what if the reason you want to avoid trial is because the evidence on other side is so bad that no reasonable jury could find in that side’s favor i. Summary judgment (pre-trial) R 56 ii. Motion for a judgment as a matter of law (trial and post trial) R 50 V. Burdens i. Of pleading 1. P has a burden of pleading the elements of the COA 2. D has the burden to plead all the elements of any affirmative defense ii. Of production Docsity.com
