Discovery

Question 1

Historical development and purpose - disco

Answer 1

Prior to the FRCP, the notice giving, issued-formulation, and fact revelation were preformed inadequately by the pleadings.

FRCP restriction of the pleadings to notice giving (what the claim is about), relies on broad and liberal discovery to give both parties equal access to facts and other information to figure out the truth (we don’t want surprises at trial) and to dispose of unmeritorious claims.

^This mission may start to erode after Twiqbal.
Due to shift towards plausibility pleading, information asymmetry may prohibit a praty from getting to discovery to obtain this equal access to information.

Question 2

Conferences before discovery

Answer 2

Rule 26f conference:
Meet with other party and talk about initial disco
- do not need to actually make initial disclosures, only make arrangements for doing so.
- absent any agreement to the contrary, initial disclosures are required to be made within 14 days of 26f conference.

Rule 16 conference:
Both parties meet with the court and tells the judge about the big issues of the case.
After the conference, the judge will issue a scheduling order providing all the major dates
R16 conference encourages early planning and cooperation between the parties to address key issues, which helps avoid surprises and promote case efficiency.

Question 3

Initial disclosures generally includes what?

Answer 3

Rule 26a1
i. names and contact information for each person likely to have discoverable info that disclosing party may use to support its claim.
ii. a copy of or location of ALL DOCUMENTS (including ESI) that the disclosing party has in its possession or control that it may use to support its claim.
Note: do not need to present harmful evidence/smoking gun.
Documents that are required to be included and are not disclosed may not be used as evidence (R37c1).
iii. computation of each category of damages claimed
iv. any insurance agreement

Question 4

Purpose of initial disclosures

Answer 4

Get the numbers out early for settlement purposes.

Question 5

Scope of discovery in general

Answer 5

26b1
Any material as long as it is:
Relevant to any claim or defense,
Nonprivileged, and
Proportional to the needs of the case considering the factors:
1. importance of issues at stake
2. amount in controversy
3. the parties’ relative access to relevant information
4. the parties’ resources
5. the importance of disco in resolving the issues
6. whether the burden or expense of the proposed disco outweighs its likely benefits.

Question 6

Is the requested material relevant? What does relevant mean?

Answer 6

The material is relevant if it has any tendency to make a fact/claim/defense more or less probable and the fact is of consequence in determining the action (Fed.R.Evid. 401)

• Does NOT have to be admissible, but reasonably calculated to lead to admissible evidence (not officially in the rules any more, but committee notes tells us it is still true).
• Constructed broadly to encompass material that bears (or reasonably could lead to other matters tha could bear on) any issues int he case). BROAD.

-Wright & Miller “If there is any possibility that the info sought is relevant to any issue in the case”

Question 7

What does Gonzales teach us about relevance?

Answer 7

FACTS: In a suit regarding the constitutionality of an online regulation to prevent using the internet in a way that harms minors, Google was subpoenaed as a nonparty (R45) so that the government could test filtering software pretrial. Part of the government’s discovery request included tens of thousands of search queries, which Google objected to as not being relevant to the main issue of the filtering software.

KEY HOLDING: The court corrected Google that contrary to their belief, the broad standard of relevance under R26 does not require that information sought necessarily be directed at the ultimate fact in issue, only that the information sought be reasonably calculated to lead to admissible evidence in the underlying litigation.

Question 8

Is the requested material proportional?

Answer 8

Proportional to the needs of the case considering the factors:
1. The importance of the issues at stake in the action
2. the amount in controversy
3. the parties’ relative access to relevant information
4. the parties’ resources
5. the importance of disco in resolving the issue
6. whether the burden or expense of the proposed disco outweighs its likely benefits

Question 9

What do I need to do with the proportional multi-factor balancing test? What should I say on the exam?

Answer 9

Often hard to predict an answer… we get a lot of flexibility at the cost of predictability.
-Can depend on which factors the judge thinks are the most compelling.
use best reasoned judgement and use the facts to argue for and against each factor

Question 10

What is the purpose of privilege?

Answer 10

Society values the relationships that are protected by privileges and prioritizes free communication in the context of these relationships.
Since disco is supposed to be applied as broadly as possible, privileges are to be restricted to its narrowest bounds.

Question 11

Main features of attorney-client privilege (not tested on)

Answer 11

Protects communications between a barred attorney and a current or prospective clients
Must be for the purposes of legal opinions or services
Not business advice
Privilege doesn’t hold if it has been waived.

Question 12

Work-Product Doctrine

Answer 12

The work Prepared in anticipation of litigation is not generally discoverable.
-Unless the requesting party establishes that they have substantial need and cannot obtain equivalent without undue hardship.
—(even then, “core wok-product” mental impressions will be protected.

Question 13

Policy of work product doctrine

Answer 13

• If trial preparation materials were discoverable then some lawyers could be super lazy and just ask for all of the work (witness statements, etc.).
• Could also cause lawyers to not want to write anything down.
• Would also potentially cause our attorneys to turn into witnesses about what they wrote vs what the statement is (at trial) and we don’t want this.

Question 14

Common Law vs. Rule 26b3 Work-Product

Answer 14

Hickman v Taylor.
Common-law work product doctrine in 1947 before it was codified in FRCP.
Common law version still exists today because of differences.
Differences between common law and R26b3
Common law (Hickman v. Taylor)
Covers lawyers only
Includes tangible and intangible (depositions, etc.) things
Rule 26b3
Extends to others besides lawyers
by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent)
Includes only tangible things

Question 15

Key question to ask in regards to work-product:

Answer 15

Was the product produced too close to the things that happened to truly be in anticipation of litigation?

Question 16

How do you claim privilege?

Answer 16

Rule 26b5
Assert it, list all objections, and give the nature of the document.
Also need to file a privilege log.

Question 17

How can courts further limit the scope of discovery? Funnel

Answer 17

26b2
Even if requested info is within the scope, rules give judges devices to restrict:
(A) limit number of discovery devices
(B) special limits on e-disco
(C) court may limit discovery that is cumulative, duplicative, obtainable from a more convenient/less burdensome source OR party seeking has already had an ample chance to obtain info.

26c
Court can issue protective order to protect from..
annoyance, embarrassment, oppression, undue burden, if beyond scope of 26b1
(Also requires meet and confer)

Question 18

Problems with E-Discovery

Answer 18

○ There is a ton of info now
○ Info is in a ton of different formats
○ Volume
○ Duplicates
○ People hours required even with computer searching/costs of firing IT
○ Disclosure of privileged material
○ Document retention (spoliation)
○ Lawyer’s knowledge of sources
○ Deleting does not delete
○ Metadata
○ Dynamic nature of material
Very easy to accidentally disclose privileged info.

Question 19

Are you required to produce all relevant, proportional, non-privileged ESI?

Answer 19

‘No. 26b2B - Special protections against having to produce ESI that is not “reasonably accessible.”

On discovery motions, 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 a court may still order discovery from such sources if the requesting party shows “good cause.”

Question 20

Zubulake facts/solution

Answer 20

○ Gender discrimination case results in ESI that would cost 175k to produce. Zubulake moves to compel. Judge is extremely creative and
○ Cost-shifting should only be considered for electronic discovery when there is an undue burden or defense on the responding party.
○ ^ the fact on whether production is unduly burdensome turns primarily on whether it is kept in an accessible or inaccessible format.
○ Cost shifting may end discovery, especially when private parties are litigating with large corporations. This will undermine the strong public policy favoring resolving disputes on their merits because parties will not be able to afford discovery.
Interesting way to balance this in Zubulake is the judge requested a small representative sample of the data to see if cost-shifting would be appropriate (using the precursors to the multifactor balancing test of 26b1)

Question 21

What can a party do if it gets a discovery request that it believes is too broad?

Answer 21

1. Seek a protective order under R26c
   a. Not what most do.
   b. Also requires meet and confer
   
   2. Object to the discovery request, refuse to provide the information, and let the other party file a motion to compel
      a. R37a (what is that?) also requires meet and confer
      b. Most of the time during meet and confer you will reach an agreement and no one will file a motion.
      c. Courts don’t like having to get involved with discovery disputes.

Question 22

Practical discovery dispute considerations

Answer 22

• Almost always meet and confer about discovery disputes and both sides concede some stuff.
• It’s expensive to defend discovery requests.
• The defendant will never get the money spent fighting about discovery back even if they win.
• Smart attorney Sperino used to go against would
○ Request ALL records about ALL employees from ALL years across ALL states… or at least the St. Louis ones.
• Π has incentives to ask for most amount of things possible because of the underlying tension that the defense has to pay for disco probably by the hour.
Risk here is that the responsive material may be so voluminous that it may be difficult for the receiving party to identify what is relevant.

Question 23

Discovery Devices - production of documents, esi, and things

Answer 23

• Documents may be obtained if they are in a party’s possession, custody, or control. R34 for parties Subpoena R45 for nonparties.
○ Cormack
§ tells us that Control does not require legal ownership or actual physical possession, but the right, authority, or practical ability to obtain the documents.
® Can’t just say “I don’t possess it” need to not have the practical ability to get it.
® Most defendants response is going to be “I don’t possess these other documents” and let the plaintiffs press it as far as they want.

	○ Also allows for inspection of "things" that are in possession of the other party
• Rule 34(b)
	○ Documents must be produced either as kept, organized, or labeled according to the document.
		§ You can produce the unorganized mountain you have, or you can re-organize.
			® You cannot take documents and scramble them before producing.
• Producing ESI
	○ Big Concerns = Searchability & Metadata (history, who did what, etc.)
	○ You may request ESI in the form you want, but the default is
		§ If a requesting party does not specify a form for producing ESI, a party must produce it in a form or format in which it is ordinarily maintained or in a  reasonably usable form or forms.
	○ Best practice is to request in the form you want them produced AND have a conversation about format issues and how they will be handled during 26f conference.

Question 24

Discovery Devices - Interrogatories

Answer 24

Rule 33

	a. Written questions that a party must answer "under oath"
		i. Answers are going to be scrubbed pretty hard.
	b. Limit 25 unless court grants more
		i. Make them open-ended - not y/n because those can be added on to requests for admission which have no limit.
	c. Cannot be issued to nonparties
	d. 30 days to respond Person answering signs under penalty of perjury.

Question 25

Discovery Devices - Depositions

Answer 25

Rule 30

	a. Parties may ask questions, under oath, any person thought to have relevant testimony.
	b. Limited to one day and 7 hours.
	c. Least scrubbed Even if the opposing counsel objects to a question, the deponent must still answer the question.

Question 26

Discovery devices - physical/mental examinations

Answer 26

Rule 35
Mental or physical condition *must be in controversy.
Can’t just say “oh you want to sue me? well now you have weekly prostate exams until trial”

Question 27

Discovery Devices - Requests for admission

Answer 27

Ask the other side to admit or deny basic info.
Close ended questions. Unlimited.

Question 28

What discovery devices may be used on non parties?

Answer 28

Producing document/things and depositions. Rule 45.

Question 29

What do you do if you accidentally produced privileged material?

Answer 29

1. “Claw-back” agreement = parties entitled to retain material they produced that should have been withheld.
2. “Quick peek” agreement = permits parties to review a body of material in possession of the responding party prior to a privilege review in order to identify the subset of the material that the party is actually interested in being produced. (Never use).

Hopefully you reached an agreement about inadvertent disclosures during 26f conference… if not, 26b5B bakes in a default back up.

Question 30

oh shit I produced privileged info rule

Answer 30

R26(b)(5)(B) Claw-back procedure: Highly practical rule for emergency
1. Notify any party that received the info of the claim and the basis for it.
2. Receiving party must then promptly return, sequester, or destroy the info and any copies it has and may not use or disclose the info until the claim is resolved.
a. Sperino said to never destroy. Set them aside.
3. If receiving party has disclosed the info before being notified, it must take reasonable estops to retrieve it
4. The receiving party may promptly present the info to the court under the seal for a determination of the claim

Question 31

Sanctions Overview

Answer 31

• “There’s a sanction for that!” – There is a sanction for any misconduct that occurs in a lawsuit.
○ One of your greatest resources as an attorney is your reputation.
• Strong preference for graduated sanctions
○ Judges usually start with the lowest level allowed and then turn up the severity if the lower level doesn’t take care of the problem.
○ Desire not to punish clients/parties for attorney misconduct
§ As a result, the most common sanction is to pay the other side’s attorney’s fees for that issue.
Rules bend over backwards in 37e to recognize the practical concerns with e-disco (more forgiving).

Question 32

Sanctions Framework

Answer 32

1. Does my particular discovery rule has a sanction?
   
   2. Does Rule 37 provide a sanction?
      a. Allows us to go to court to ask for an order to compel.
      b. Must meet and confer first
      c. Evasive or incomplete disclosure, answer, or disco response must be treated as a failure.
   3. Does the certification requirement of the 26 provide a sanction?
      a. Have the document certification requirements been met?
   4. If none…
      a. Is a sanction available under the court’s inherent power?
      Local rule? Sec. 1927?

Question 33

What is spoliation?

Answer 33

• The destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.
○ We have an obligation once litigation is reasonably foreseeable to start to preserve all things that might be relevant to litigation (items or documents). Need to instruct our client to preserve these things really early (even before litigation) if we can reasonably anticipate that it might occur.
○ Often this is done by a litigation hold
§ Formal document that tells the client in specific detail all documents and items that it needs to preserve.
Might want to talk document preservation at 26f conference

Question 34

Motion to compel (disco)

Answer 34

R37a
Must meet and confer still