Civil Procedure II Outline - Part 6

1. Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable..
   • Analysis of 26b1
     • 26b1
       • Information that the disclosing party may use to support its claims or defenses.
2. Limitations on Frequency and Extent.
   1. When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.
   2. Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
   3. When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
      1. the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
      2. the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
      3. the proposed discovery is outside the scope permitted by Rule 26(b)(1).
3. Trial Preparation: Materials.
   1. 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:
      • Analysis
        • Anticipation of litigation
          • Rule 26b3 Extends work product protection only to matter that is prepared in anticipation of litigation or for trial. This condition is the key to identifying work products.
            • What is ligation
              • Litigation has not proven hard to define; it includes any adversary court or administrative proceeding including a civil action, criminal case, grandy jury proceeding and administrative hearing.
            • Must litigation have commenced
              • No see below
            • What is anticipation of litigation
              • Several Different Approaches
              • Ad Hoc
                • Only that where, as here lawyers claim they advised clients regarding the risks of potential litigation, the absence of a specific claim. Represents just one factor that courts should consider in determining whether the work-product privilege applies.
              • Specific Claim approach
                • The documents must have been prepared with a specific claim supported by concrete fact which would likely lead to litigation in mind.
              • Primary Purpose Approach
                • The primary motivation for preparing the putative work product must assist in preparing for possible litigation. THis motive is shown circumstantially by how the document is labeled, whether a lawyer participated in the preparation, whether the document comments on litigation and whether it has an ordinary business purpose. Documents prepared for an ordinary business purpose or to fulfill regulatory requirements therefore do not usually qualify as work products.
        • Overcoming work product protection
          • Rule 26b3
            • Normally the discovere would need to make that showing by filing an affidavit in support of a motion to compel discovery.
              • The discovere must show “substantial need for the materials to prepare its case” 26b3aii
              • A motion to compel discovery that is backed by an affidavit that merely alleges a need for the materials to help prepare examine witnesses is doomed for failure.
            • Even when the requisite showing of substantial need and undue hardship has been made “the court shall protect against disclosure of the mental impression, conclusion, opinions, or legal theories of any attorney or other representative of a party concerning litigation.
              • Some courts allow a redact of such impression from the memo before disclosing the remainder upon a showing of need and hardship
                1. they are otherwise discoverable under Rule 26(b)(1); and
                2. 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.
   2. 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.
   3. Previous Statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:
      1. a written statement that the person has signed or otherwise adopted or approved; or
      2. a contemporaneous stenographic, mechanical, electrical, or other recording—or a transcription of it—that recites substantially verbatim the person's oral statement.
4. Trial Preparation: Experts.
   1. Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.
   2. Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
   3. Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
      1. relate to compensation for the expert's study or testimony;
      2. identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or
      3. identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.
   4. 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 not expected to be called as a witness at trial. But a party may do so only:
      1. as provided in Rule 35(b); or
      2. on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
   5. Payment. Unless manifest injustice would result, the court must require that the party seeking discovery:
      1. pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and
      2. for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions.
5. Claiming Privilege or Protecting Trial-Preparation Materials.
   1. Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
      1. expressly make the claim; and
      2. describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
   2. Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

(c) Protective Orders.

1. In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
   1. forbidding the disclosure or discovery;
   2. specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;
   3. prescribing a discovery method other than the one selected by the party seeking discovery;
   4. forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
   5. designating the persons who may be present while the discovery is conducted;
   6. requiring that a deposition be sealed and opened only on court order;
   7. requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
   8. requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.
2. Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.
3. Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.

(d) Timing and Sequence of Discovery.

1. Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.
2. Early Rule 34 Requests.
   1. Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:
      1. to that party by any other party, and
      2. by that party to any plaintiff or to any other party that has been served.
   2. When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.
3. Sequence. Unlessthe parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice:
   1. methods of discovery may be used in any sequence; and
   2. discovery by one party does not require any other party to delay its discovery.