Discovery Limitations - Work Product, Non-Testifying Experts; Required Disclosures and “Paper Discovery”. Flashcards
Work Product: Protection of “Trial Preparation Materials”
Supreme Court recognized a “work product” exception to the scope of discovery.
- Relevant and non-privileged written materials prepared by counsel in anticipation of litigation are protected from discovery… UNLESS they are essential to the preparation of opposing party’s case – meaning the information is important and the opposing party can’t get the information from any other source.
- Oral statements made by witnesses to an attorney are accorded an even higher level of protection - they are almost absolutely protected.
FRCP 26(b)(3) – Trial Preparation Materials
Provides that trial preparation materials (i.e., work product) are protected from discovery and need not be produced EXCEPT WHEN the information is not reasonably available to the requesting party from any other source.
- Applies only to documents and tangible things prepared in anticipation of litigation by a party or the party’s representative.
- Includes documents that are prepared when litigation is expected but has not yet commenced, as well as to documents prepared for litigation that is already pending.
- “In anticipation of litigation” means that the primary purpose for preparing the document was to assist in possible or existing litigation.
- The protection does not apply to documents prepared in the regular course of business, whether or not litigation is already pending, or to documents prepared to fulfill regulatory requirements. Such documents do not “become protected” simply because the lawyer or party gathers them for use in litigation; rather they must have been prepared for purposes of litigation.
- The doctrine applies only to parties and their representatives. Thus, if a witness prepares a document for the witness’s own purpose, it is not protected.
- Note: The work product protection is not limited to documents prepared by lawyers! It applies to documents prepared by parties to the litigation and their representatives (a lawyer is a representative of the party).
- To overcome the work product protection, a party must show that there is no reasonable alternative source for the same or substantially equivalent information AND that the party has a substantial need for the information.
Exceptions to the work product doctrine:
- Mental impressions and legal evaluations of an attorney (or a party or other representative of a party) are given a higher level of protection. They receive an almost absolute privilege from disclosure – the attorney may redact statements reflecting mental and legal impressions from work product that must be disclosed under FRCP 26(b)(3).
- “Court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of any attorney or other representative of a party concerning the litigation.” Duplan Corp, 4th Cir case. (1974)(p. 793)
- There continues to be common law protection for “intangible” work product in most jurisdictions – like oral statements of a witness to a lawyer.
- Note: A party can always obtain a copy of the party’s own statement or statement of his agent, and a non-party witness has a right to a copy of the witness’s own statement. The work product doctrine will not prevent such disclosure.
- Waiver: Disclosure of documents to another party in the action constitutes waiver of the work product protection with regard to those documents.
The FRCP 26(f) Conference
The 26(f) conference is the “kick-off” for discovery. The parties are not permitted to serve any formal discovery requests in the action until after this conference, EXCEPT for “early FRCP 34 requests” (see below).
- Parties to the litigation must meet as required by 26(f) as soon as practicable after the case has been filed, and at least 21 days before the Court enters its Scheduling Order.
At the 26(f) conference, the parties must:
- Confer regarding the nature and basis of claims and defenses;
- Explore possibility of settlement;
- Make or arrange for the 26(a)(1) Initial Disclosures (see below);
- Discuss any issue relating to preserving discoverable information;
- Develop a proposed discovery plan, including:
- Any changes that should be made to the disclosure requirements of 26(a).
- Subjects on which discovery is needed, when discovery should be completed.
- Any changes that should be made to limitations on discovery imposed by the FRCP or local rules, and whether other limitations should be imposed.
- No discovery may be served prior to the 26(f) conference EXCEPT:
Early FRCP 34 (document) requests can be served on or by a party any time that is more than 21 days after that party has been served with a summons and complaint. For purposes of the due date for the response to such requests, the requests will be deemed served AT the 26(f) conference (so response is due 30 days after the conference).
There are Six Tools for Discovery in Federal Court:
- Required disclosures [Rule 26(a)]
- Interrogatories [Rule 33]
- Requests for Production of Documents and Things [Rule 34]
- Depositions [Rules 27, 30, 31]
- Requests for Admissions [Rule 36]
- Mental and Physical Examinations [Rule 35]
FRCP 26(a): Required Disclosures
Rule 26(a) requires that certain information be automatically disclosed by the parties to each other, without the necessity of a request from a party or a court order, at three different points in the litigation.
- The timing and content of such disclosures can be modified by stipulation of the parties or by court order.
- Failure to disclose information as required by FRCP 26(a) can result in sanctions, including being precluded from introducing the information at trial. (FRCP 37)
26(a): Required Disclosures
FRCP 26(a)(1): Initial Disclosures
- Must be made at or within 14 days of the parties’ 26(f) conference.
- The parties must automatically disclose to each other:
- Persons with discoverable information that the disclosing party may use to support its claims or defenses, unless used solely to impeach.
- Documents (including ESI) and tangible things that the disclosing party may use to support its claims or defenses, unless used solely to impeach.
- Computation of any category of damages claimed by the disclosing party, and any non-privileged documents supporting that computation.
- All insurance policies that may provide coverage for part or all of any judgment that might be entered in the action.
26(a): Required Disclosures
FRCP 26(a)(2): Expert Disclosures
- Each party must disclose the identity of its testifying expert witnesses at least 90 days before trial (or as otherwise specified by the court or stipulated by the parties.)
- The rule contemplates two kinds of testifying experts, one for whom an “expert report” must be submitted, and one for whom no report is required.
1. Specially Retained Expert: The party must submit a written report, prepared and signed by the expert, if the expert is (1) retained or specially employed to provide expert testimony, OR (2) one whose duties as the party’s employee regularly involves the giving of expert testimony. The report must include: - A complete statement of the expert’s opinions;
- The basis and reasons for the opinions;
- Information considered by expert in forming the opinions;
- Any exhibits to be used by the expert as a summary of or in support of his opinion;
- The qualifications of the expert; and
- The expert’s compensation.
-
Expert who is NOT “retained or specially employed to give expert testimony”. If the expert is NOT “retained or specially employed to give expert testimony” – if he is “fact witness” who also happens to be an expert (like the plaintiff’s treating physician, or the exterminator in the Downy case), then an expert report need not be submitted. Instead, if the party plans to ask this witness for his/her expert opinion on any matter at trial, then the party must disclose only:
* The name of the expert; the subject on which expert will present evidence; and a summary of the facts and opinions the expert is expected to give.
FRCP 26(b)(4): “Work product” protection is provided for certain communications between a testifying expert and the party retaining him, including:
- Drafts of the expert report and expert disclosures required by 26(a)(2).
- Communications between the testifying expert and the party retaining him (and the party’s representative and/or attorney), EXCEPT FOR communications that:
- Relate to compensation for the expert’s study or testimony; and
- Identify facts/data and/or assumptions that the party’s attorney provided to the expert and that the expert considered in forming his opinions.
FRCP 26(b)(4)(D): Non-Testifying Experts
- Non-testifying experts are experts that a lawyer or party may hire to help with a case, having no intention of calling the person to testify at trial.
- This would include an expert that a party consults regarding a case who renders an opinion that the party doesn’t like, and for this reason, the party doesn’t plan to have him testify at trial.
- Non-testifying experts are treated like work product. With limited exception, they need not be disclosed and are not subject to discovery unless the opposing party can show “exceptional circumstances” that make it impracticable for the party to obtain facts or opinions on same subject by other means
- The non-testifying expert is protected from discovery only with respect to the work he does within the scope of his retention by the party that hired him – in other words, work that is performed in anticipation of litigation.
- To the extent that the non-testifying expert acquired information in the regular course of his business that is relevant to the case, or that was NOT developed within the context of his retention as a non-testifying expert, the information is discoverable.
26(a) Required Disclosures
FRCP 26(a)(3): Pretrial Disclosures
Each party must disclose no later than 30 days before trial, or as otherwise ordered by the court:
- The witnesses that the party expects to call at trial, as well as those it may call;
- The deposition testimony that the party may offer at trial; and
- The exhibits the party expects to offer at trial, and that it may offer at trial.
Unlike Required Disclosures, the other discovery tools may be used by the parties in whatever order and manner they like, as long as the use is consistent with the requirements of rules.
FRCP 33: Written Interrogatories
Interrogatories are written questions served by one party on another party. They can be served ONLY on parties to the case; they cannot be used to discover information from nonparty witnesses.
- The party to whom they are directed must answer them in writing under oath, or object. The party has 30 days to provide a written response, including any objections. Failure to object within the response period results in a waiver of the objection, absent a stipulation by the parties or a court order to the contrary.
- The rule limits the number of interrogatories that may be served on a party to 25, including subparts, unless otherwise ordered by court or stipulated by the parties.
FRCP 34: Requests for Production of Documents and Things:
FRCP 34 governs requests for production of documents and things in a party’s (or his agent’s) possession, custody, or control. It also permits requests for inspection of property and tangible things, as well as documents, computer files, e-mail, electronically stored information (“ESI”), and other records.
- The request must designate the documents, things, or land to be produced / inspected with reasonably particularity, and specify time, place, and manner of production or entry.
- There is no limitation on the number of Rule 34 requests that can be made on a party.
- The term “document” is defined broadly to include all written notes, records, photographs, computer data, emails, ESI (“electronically-stored information”).
- The party upon whom the request is served must provide a written response within 30 days. The response must indicate whether production will be made, inspection allowed, or assert objections to production.
- As with interrogatories, a failure to assert an objection within response period will result in waiver of the objection.
- Documents may be produced as they are kept in the usual course of business, or by the categories of the request.
- ESI – The requesting party has the right to designate the form in which they want the information produced (for example, .rtf, .tif, .pdf, hard copy).
- Production requests and requests for entry upon land under Rule 34 may be directed only to parties.
- HOWEVER, FRCP 45 allows for the issuance of a subpoena for production or inspection on nonparties that is almost identical to FRCP 34. Thus, document production and inspection can be had of both parties and nonparties to the litigation.
