Pretrial Procedure and Discovery

Question 1

In an action under Title VII, can P assert psychiatrist-patient privilege if federal common law recognizes this privilege?

Answer 1

Yes, because federal common law applies to claims arising under federal law - look only to the law of the state where it is located if it was diversity jurisdiction

Question 2

Can a P subpoena a witness for oral deposition without leave of court before filing mandatory initial disclosures, conduct other depos, or discovery conference?

Answer 2

No, if a party wants to depose a witness before the discovery conference, it must obtain leave of court per Rule 30

Question 3

Can P pursue a new action based on the same claim in federal district court if (1) P failed to appear for trial despite court warning that this would lead to dismissal, (2) court dismissed without stating whether w/ or w/o prejudice, and (3) dismissal was 130d after case first set for trial?

Answer 3

No, because when a court dismisses an action for failure to prosecute, the dismissal is considered to be with prejudice and operates as an adjudication on the merits - voluntary dismissal is only without prejudice if taken before other party (1) serves answer, (2) motion for summary judgment or (3) all parties agree w/ prejudice