Attack Plan

Discovery

Civ Pro

Intro
The purpose of Discovery is preservation of evidence, gets rid of issues that
cant be proven before trial, and opportunity for each side to look at their witnesses
and documents and opponents witnesses and documents which but it is expensive
and takes time. Balance the gain and the cost.
I.

II.

III.

IV.

Pre trail conference FRCP 16

a. Multi-stage process where the judge can be the case manager.
b. 26f Conference of the parties
c. 26a Required Disclosures
d. 16b Scheduling order
e. 16c Pre-trial conference
i. Note the purposes
ii. Judge becomes an active participant, get the cases resolved as
quickly and as fast as possible
f. 16e the documents and witnesses you are going to introduce. This
supersedes anything from before. The script for the trial
First step is to plan how discovery will take place. 26f
a. Meet with other attorney at least 21 days before scheduling conference
26f1
b. Discovery Plan
i. 26f3 Discover Plan must state the views on
1. 26f3A Automatic Disclosures - Should any changes be
made in the timing, form, or requirement
2. 26f3B Discover Scope and Schedule - Subjects on which
discovery may be needed, how long will it take, and if it
should be limited
3. 26f3C Electronic Information - Issues about the
disclosure of electronic information
4. 26f3D Privilege Issues - Any claims about claims of
privilege or protection of trial prep
5. 26f3E Discovery Limits - Should changes be made to the
limitations on discovery
6. 26f3F Any other order the court should consider
Discoverable Information
a. Anything relevant that is or could lead to the uncovering of
admissible evidence at trial (26b1)
b. Relevant = Federal Rules of Evidence - Anything to make the claim
more or less likely
c. How is it Relevant - Connect Facts to the rule
Required Disclosures
a. Initial Required Disclosures (Information that must be given to the
other side before the other party makes a discovery request.) 26a
i. Each person likely to have discoverable information that
may be used to support the disclosing partys claims or
defenses, and: 26a1Ai
1. Their name

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Discovery

ii.

iii.
iv.
v.
vi.
vii.

b. Initial
i.
ii.
iii.

iv.
v.
vi.

vii.

Civ Pro

a. Do not have to turn over the names of really bad

witnesses. Only the one that might support your
claim of defenses.
2. Their address
3. The subject of the information they may have
The location and descriptions of all documents,
electronically stored information, and tangible things that may
be used to support the disclosing partys claims or defenses,
26a1Aii
A computation of the damages sought by disclosing party
and the documents used to make that computation 26a1Aiii
Any insurance agreement under which an insurance business
may be liable 26a1Aiv
Exceptions: 26a1B
Time limits for required initial discovery
1. With 14 days of the 26f conference 26a1C
Time limits for required disclosures for additional parties after
conference
1. Within 30 days after being served or joined 26a1D
Required Disclosures about Expert Witnesses: 26a2
A witness can only testify to what they saw or heard. An expert
can testify and give an opinion
Party must disclose the identity of any expert witnesses it may
use at trial. 26a2A
Experts must prepare and sign a report containing 26a2B
1. All the opinions witness will express and the reasons for
expressing them 26a2Bi
2. The facts and data considered by the expert in forming
them 26a2Bii
3. Any exhibits the expert may use 26a2Biii
4. The qualifications of the expert and a list of all
publications in the last 10 years. 26a2Biv
5. All other cases in the last 4 years expert has testified for
26a2Bv
6. How much the expert will be paid 26a2Bvi
Time to disclose
1. 90 days before trial 26a2D
Supplement Disclosures 26a2E
1. Must supplement disclosures according to 26e
Limiting disclosures 26a3
1. Must limit disclosures shortly before trial (30days before
trial 26a3B)
Trial Prep Experts 26b4A (see scope)
1. Protected trial prep experts
a. Drafts of the report 26b4B are protected under trial
prep mat
b. Communications between the attorney and the
expert 26b4C

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V.

Discovery

Civ Pro

2. Non-testimonial experts 26b4D

a. Is protected from interrogatories and depositions
Request Opponent for information
a. Can not start until the parties have conferred as required by 26f -26d1
b. You can use any method in any order 26d
c. Interrogatories R33 you get an answer from the opposing party
that the side is committed to highly filtered and carefully phrased.
i. Scope 33a2
1. May relate to any mater to any mater that is discoverable
26b
2. Limited by the Exceptions in 26b (general exceptions
not covered)
ii. It is ok to hand over a bunch of unsorted files as long as it is no
more difficult for the party receiving the files to find the answer
to the interrogatories than the party that sent them. R33d
iii. Interrogatories for question that are not answerable yet
1. 33a2 interrogatories need not be answered until
compilation is complete
a. Done by motion for protective order 26c until
specified time
2. 26e this is what we know now
a. Duty to supplement interrogatories
iv. Limited to 25 of them 33a1, more can be granted by court
v. 30 days to respond 33b2
vi. i.e. the names of everyone interviewed/any other claims with
same issue?
d. Depositions R30 - unfiltered testimony no filters can be
compelled by subpoena
i. Oral testimony under oath that is transferred into words, chance
to get them if they change their story.
ii. Limited to 10 of them 30a2Ai
iii. Leave needed when:
1. Going over 10 30a2Ai
2. Deposing a person more than once 30a2Aii
3. Take it before time specified in 26d (1 day 7hrs)30a2Aiii
4. Person is in jail 30a2B
e. Production of documents 34
i. Any writings, drawings, graphs, charts, photographs, sound
recordings, images, and other data or data compilations stored
in any medium 34a1A
ii. Allowed to go on to land to inspect, measure, survey,
photograph, test, or sample 34a2
iii. Is it Relevant or Discoverable? See I
iv. Limited by exceptions! See Scope X = R26b (trial prep,
privileged, burdensome)
v. A request from one party to anther to produce documents
1. i.e. witness mentions document they saw

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VI.

VII.

VIII.

IX.

Discovery

Civ Pro

2. document from 26a2 parties have to list all documents

they may use
vi. Per 45, If they are form a nonparty (third party) have to request
by way of subpoena. 34c
f. Physical and Mental Examinations 35
i. Must be done by way of motion (court order), for good cause,
and with notice sent to all parties 35a2A
ii. Must specify the time, place, and who will perform it. 35a2B
iii. Standard for court order
1. In your legal control (usually a child or employee)
2. Issue in controversy
g. Request for Admission 36
i. A party can request that another party admit the truth of any
matters that fall within 26b1 (non-privileged and relevant)
relating to
1. Facts, that application of law to fact, or opinions about
either and 36a1A
2. The genuineness of any described document. 36a1B
a. Have to send a copy of the document with the
request 36a2
ii. Have 30 days to respond 36a3, can be extended/shortened per
29
iii. Dont answer = have to pay reasonable cost of attorney
fees to disprove! 37c2
Signed/Served and Sanctions
a. 26a4 all disclosure must be signed and served
b. Broader discovery related sanctions 26g
i. Rule 11 type sanctions a lot less harsh than 37 sanctions
ii.
Motion to compel
a. 37a motion to compel court telling the recipient of the discovery
request you must comply
i. Must make a motion with an affidavit that says you made a good
faith effort to resolve the problem before getting the court
involved
ii. Make the Motion to Compel
b. If you fail to comply 37b2
i. Non-party
1. Contempt of court to proceedings could go to jail
ii. Party
1. Barring defenses, striking pleadings, default judgment,
dismissal
Protective order
a. 26c protective order- an order from the court saying you dont have
to do something. i.e. turn over the documents
Duty to Supplement
a. 26e1 requires that attorneys continuously supplement the documents
they hand over

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X.

Discovery

Civ Pro

Scope of allowable discovery 26b

a. Generally
i. Parties may obtain any non-privileged matter that is relevant
to any parties claim or defense. 26b1
1. Relevant = FRE - makes the conclusion more or less likely.
b. Exceptions by motion 26b2 (Via Protective Order 26c)
i. The court can alter the amount of depositions and
interrogatories 26b2A
1. Depositions 10
2. Interrogatories 25
ii. Electronic Discovery - Undue burden or cost 26b2B
1. Electronic discovery that is not reasonably accessible.
2. Data is encrypted and stored in larger volumes
3. What must counsel must do to maintain compliance with
preservation of evidence to prevent spoliation (tort)
(Zubulake IV)
a. Counsel must issue litigation hold whenever
litigation is reasonably anticipated should be
periodically re-issued to make sure it stays fresh in
employees mind
b. Duty of preservation should be communicated to
the key players parties listed on initial disclosure
should be periodically reminded of duty to
preserve.
c. Instruct all employees to produce electronic
copies of their relevant files
i. Backup media is identified and stored in a
safe place (emphasis on separating relevant
backup media from non-relevant)
iii. Privileged Material 26b1
1. Parties can only obtain discovery regarding non-privileged
material
2. Attorney Client, Priest Pennant, and Husband Wife.
a. Slightly being extended to Doctor Patient when it
extends to the persons mind
b. Upjohn includes top line corporate managers but
we dont know how far.
i. Reports between attorney to Board is
privileged since it is between attorney and
client
3. The privilege protects the communication and not the
underlying evidence!
a. But, the report from the attorney to the client is just
a compiling of information not the rendering of
legal advice which is privileged. Legal purpose
(advice) protected, business purpose not
protected.

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Discovery

Civ Pro

b. Cannot refuse to disclose information/facts

compiled by the attorney Cannot hide facts
iv. Trial Prep Materials 26b3A
1. An attorney cannot request ANY information prepared by
the opposing council OR representative (including an
agent, consultant, and insurer)!
2. Elements that must be met
a. Documents or tangible things
b. Prepared in anticipation of litigation (difficult part)
i. Summaries for interrogatories would not
count
c. Prepared by and for another party
3. Protects only the underlying document! Not the evidence.
4. Hickman Cannot ask for material that would
improperly peer into the opposing attorneys head
(CORE PRINCIPLE)
a. Would show what information that attorney thinks
are important issues. (Notes and Memos go to the
core!)
b. Signed statement by witness would fall under this
since the questions asked would peer into the
opposing attorneys head
i. Exception: If a lot of time has passed might
be required since memories fade. Bur the
rule says under no circumstances
5. Exception to Trial Prep Materials 26b3Aii
a. Substantial needs for the materials and without
undue hardship they cannot get the material.
i. Substantial need party died
ii. Undue hardship really expensive
6. Protected Expert witnesses Material:
a. Drafts of the report 26b4B
b. Communications between the attorney and the
expert 26b4C
i. Exception not the data
c. Communication between Attorney and Nontestimonial experts. 26b4D
i. Exceptional circumstances few experts in a
field data no longer available
d. Informally Contacted Experts
i. Ager if you can get nothing from a retained
non-testimonial than you can get nothing
from a non-retained non-testimonial
expert. No exceptions
c. Exceptions court or parties can use (Discretion) 26b2C

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Discovery

Civ Pro

i. Discovery would be unreasonably duplicative or could be

obtained from a more convenient, less burdensome, or less
expensive source. 26b2Ci
ii. The party seeking had ample opportunity to obtain the
information by his discovery 26b2Cii
iii. The burden or the expense of the discovery outweighs the
benefit 26b2Ciii