class 6 privilege and work product protection Flashcards
attorney client privilege
What is protected?
Confidential communications between lawyers and clients concerning the matters the lawyer is handling for the client.
Does not require that litigation be anticipated
Waiver (loss of the privilege): can be intentional sharing of privileged communication or inadvertent production
Subject matter waiver: in some circumstances, production of a privileged document or communication will operate as a waiver as to any other privileged communication on the same subject matter
The Clawback: 26(b)(5)(B)
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 it, and may promptly present the info to the court under seal for a determination of the claim.
privilege summary
Clawback gives a party protection pending a decision by the court as to whether the privilege has been waived.
It will not protect you if you have been lax about your privilege review and the court finds the privilege waived.
Note that the privilege is absolute – it cannot be “overcome” by a showing of need like the work product protection
But it can be waived (lost) if not adequately protected.
work product doctrine
What is protected?
Must be prepared “in anticipation of litigation”
When can that protection be overcome?
How does it differ from attorney-client privilege?
Doctrine now codified in Rule 26
Rule 26(b)(3) Trial Preparation Materials
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, such materials may be discovered if (i) they are otherwise discoverable under (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.
Rule 26(b)(3) cont’d
(B) If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
(C) A 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.
A “previous statement” is a written statement that the person has signed or otherwise approved, or a verbatim recording or transcription
Fired employee Pam is suing employer for age discrimination. She hires a lawyer, Lou. Are the following requests by the employer discoverable?
Employer asks for all documents discussing the circumstances of Pam’s firing. Does Pam have to produce a diary entry from that day discussing how distressed and upset she was?
Same request. Does Pam have to produce an email from her attorney listing the items she should be prepared to discuss in their next meeting?
Same request. Does Pam have to produce notes from her attorney’s discussion with Pam’s friend Sue (with whom Pam discussed her firing)? What if Pam has since died?
In an interrogatory, Employer asks for the identity of all people Pam discussed the firing with. Pam already prepared such a list for her attorney. Can she refuse to answer the interrogatory?
slide 12?
categories of experts
Retained in anticipation of litigation or preparation for trial v. ordinary fact witness
Testifying v. nontestifying experts
What must a party disclose under the rules for each category?
Ordinary W – disclosure as required in initial disclosures + subject matter under 26(a)(2)(C)
Testifying Expert – disclosure of identity, expert report, and subject to deposition 26(a)(2) and 26(b)(4)
Non-testifying Expert (also called “Consulting”) – largely protected from ANY discovery – 26(b)(4)(D)
Rule 26(a)(2) Disclosure of Expert Testimony
Disclosure: In addition to the initial disclosures, a party must disclose to the other parties the identity of any witness it may use at trial to present expert testimony.
Written Report. 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. [Report must contain expert’s opinion, the data it is based on, exhibits, witness qualifications, etc.]
disclosure of expert testimony cont
) If written report not required (meaning the expert is an ordinary fact W), W must state the subject matter on which he is expected to testify and summarize the facts and opinions.
(D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:
At least 90 days before the date set for trial . . . or
If it’s a rebuttal to another expert, within 30 days after that expert’s disclosure.
(E) Supplementing the Disclosures: if necessary to complete or correct a previous disclosure, information in the expert’s report, or information given during the expert’s deposition.
Rule 26(b)(4) Trial Preparation: Experts
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.
Trial-Preparation Protection for Draft Reports or Disclosures, regardless of form.
Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses, except for (i) compensation; (ii) facts or data provided by attorney and considered by expert; or (iii) assumptions provided by attorney and relied on by expert.
rule 24b4 cont
(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 not expected to be called as a witness at trial.
But a party may do so only:
(i) as provided in Rule 35(b); 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.
obtaining discovery from non testifying expert
Why does the court order production of the discovery?
How has the D shown “exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.”?
What alternative argument could D have made to obtain the discovery?
