Informal Fact Gathering / Scope of Discovery

Question 1

FRCP 26(b): The SCOPE of Permissible Discovery in Federal Court.

Answer 1

• Parties may obtain discovery regarding any nonprivileged matter*** that is ***relevant*** to the claim or defense of any party and ***proportional to the needs of the case.
• “Relevant” – having ANY TENDENCY to make the existence of a fact that is of consequence to the determination of the action more or less probable. (Federal Rule of Evidence 401)
• In determining proportionality, a party must consider:
• The importance of the issues at stake;
• 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/expense of the proposed discovery outweighs its likely benefit.

Question 2

Privilege:

Answer 2

Even if information is relevant to the case, you are not required to produce it in discovery if it is “privileged”.

• Only “legally recognized” privileges count – you cannot protect a document merely by stamping it “privileged and confidential.” It must actually fall within a legally recognized privilege to be protected.
• Privileges tend to be narrowly construed and courts are careful about recognizing new privileges because of their tendency to shield relevant information.
• Common privileges include the attorney-client privilege, the privilege against self-incrimination (5^th Amendment), the physician-patient privilege, the marital privilege.
• Except for the privilege against self-incrimination, all of the above protect communications between certain parties. These privileges exist because the confidentiality of the communication has been deemed necessary to the proper operation of the relationship.

Question 3

What communications are protected by the attorney-client privilege when your client is a corporate party?

Answer 3

The corporate client includes any employee of the company who knowingly communicates with the corporation’s counsel about matters within the scope of his employment as required in order that the corporation might obtain legal advice.

Question 4

Privilege can be lost through waiver. What action waives privilege?

Answer 4

• Intentional disclosure of the privileged communication by the “holder” of the privilege to any third party.
• Ex: If your friend is in the room with you when you’re meeting with your attorney, the privilege that would otherwise protect your communications with your attorney is waived.
• Waiver can also be inadvertent (accidentally disclosing the privileged information through negligence) or implied (asking for damages for physical injury in a complaint waives the physician-patient privilege for treatment for those injuries).

Question 5

Scope of waiver

Answer 5

disclosure of part of a privileged communication may waive the privilege as to all of the communication relating to the particular matter.

• Example: Disclosure of a helpful communication between a party and his attorney means the opposing side can now obtain all of the party’s communications with the attorney regarding that matter.