Rule 24(a): Intervention of Right

On [1] timely motion, the court must permit anyone who:

(1) Is given an unconditional right to intervene by a federal statute; or

(2) Claims an [2] interest relating to the property or transaction that is the subject matter of the action, and is [3] so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest [4] unless existing parties adequately represent that interest.

• 
  Public interest group is suing a federal agency for injunctive relief to prohibit those agencies from issuing licenses for the operation of uranium mills in NM without first preparing environmental impact statements
  
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  Intervenors: Kerr-McGee, United Nuclear
  
  • 
    Motion for United to intervene was granted because the parties did not oppose
    
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  Assuming in this case that this motion is timely
  
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  Impair or impede its ability to protect its interest: litigation will determine whether Kerr can operate their mills or not
  
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  But doesn’t United properly represent their interests?
  
  • 
    United has a defense of laches that is not available to Kerr
    
  • 
    United may be ready to compromise the case by obtaining a mere declaration that while environmental impact statements should be issued, this requirement would be prospective only and would therefore not affect them because they already have a license issued
    
    • 
      Whereas Kerr does not have a license yet
      
• 
  As a technical matter, the judgment does not apply to them…BUT…though Kerr could re-litigate the issue, the doctrine of stare decisis would apply
  
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  What about American Mining Congress? Represents a number of companies having a wide variety of interests
  
  • 
    Interests are a little different that Kerr
    
  • 
    More of an indirect, representative interest
    
  • 
    10^th Circuit allows them in
    

• 
  Pros:
  
  • 
    No surprises
    
  • 
    More settlements, summary judgments
    
  • 
    More cases decided on merits???
    
  • 
    Less trials???
    
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  Cons
  
  • 
    Expense
    
  • 
    Time consuming
    
  • 
    Problem of over- and under-discovery
    
  • 
    Less cases decided on merits???
    
  • 
    Less trials???
    

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  General characteristics:
  
  • 
    Initiated by parties; judge intervenes only in case of dispute.
    
  • 
    Judge has broad discretion.
    
  • 
    Generally confined to information that is a) “relevant” to a claim or defense and b) not “privileged.”
    
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  Other exceptions – stay tuned
  
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  Stages of discovery
  
  • 
    “Mandatory disclosure” – matters that parties may use to support their own claim or defense (Rule 26(a)) (i.e. initial disclosure--parties voluntarily give information to each other without any court order that supports their claim or defense)
    
  • 
    Each party requests further information from other as to other matters “relevant to claims and defenses” through various methods (Rule 26(b)) —
    
    • 
      More detail about disclosures that have already occurred
      
    • 
      Disclosure of information that one party doesn’t want to use but the other does
      
    • 
      By leave of court for good cause shown
      
      • 
        Discovery of info “relevant to subject matter involved in the action”
        

… (C) “On motion or on its own, the court must limit” discovery for several enumerated reasons.

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  A court can limit discovery if it determines that the discovery is unreasonably cumulative or duplicative, obtainable from another source that is more convenient, less burdensome, or less expensive, or the burden or expense of the proposed discovery outweighs its likely benefit
  

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  Facts: plaintiffs bring claims against Precoat Metals on the basis of Title VII & hostile work environment (race & national origin)
  
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  Discovery requests at issue: plaintiffs limited their requests to: (i) the 1998-to-February 2002 time period; (ii) complaints by employees who worked at the same Chicago plant where plaintiffs worked; & (iii) complaint of race & national origin discrimination
  
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  Precoat’s arguments: too broad
  
  • 
    Not legally relevant: just because there are other claims doesn’t tend to prove this claim
    
    • 
      Court: no, these are narrowly tailored discovery requests; it does tend to prove or disprove (as long as they are narrowly tailored)
      
  • 
    Too burdensome
    
    • 
      Court: no, these are narrowly tailored because ask for a certain time period, same plant, same type of claim
      

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  Facts: plaintiff resigned from naval academy, but he claims that he was constructively discharged because he made statements proclaiming that he is a homosexual
  
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  Issue: plaintiff refuses to answer in discovery if he engaged in homosexual acts (not relevant to his claim in this case because he was not discharged for engaging in homosexual acts but for proclaiming himself as a homosexual)
  
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  In an administrative proceeding, court is only able to review record…if this conduct is outside of the record (which it is…there is no mention of acts of homosexuality in the record), then it is not relevant
  
  • 
    Judicial review of an administrative action is confined to "the grounds…upon which the record discloses that [the] action was based." SEC v. Chenery Corp., 318 U.S. 80, 87 (1943). This rule applies with equal force to judicial review of administrative actions by the military.
    
• 
  GREAT EXAMPLE OF FOCUSING IN ON WHAT THE CLAIM IS
  

How do you reconcile these cases?

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  Both cases focus on the narrow relevance of the claim at issue
  

Procedural Issues:

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  What led to the district court rulings in these cases?
  
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  Could defendant in Davis have sought an appeal?
  
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    Court has broad discretion
    
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  How did Steffan reach an appellate court?
  
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    He wouldn’t answer so district court sanctioned him (dismissal of the case…which is immediately appealable)
    
  • 
    So that is how we get to D.C. Circuit
    
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  What does this tell us about the power of district courts in discovery matters?
  
  • 
    Very, very strong
    

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  Albert and Barbara are involved in an automobile collision. Albert sues Barbara; Barbara denies liability.
  
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    Can plaintiff discover the size of defendant’s bank account? Not relevant to damages element of claim because she must show damages resulting from her injuries (has nothing to do with amount in his bank acct.)
    
    • 
      But if it is a claim for punitive damages, bank acct may be relevant because purpose is to punish
      
  • 
    Can plaintiff discover whether defendant has an insurance policy?
    
    • 
      Is the existence of defendant’s auto insurance policy relevant to proving claim? Not relevant to DBCD; but relevant to the system because ultimately if there is a policy, the insurance company will be involved
      
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      Is it discoverable? Yes, under Rule 26(a)(1)(A)(iv)
      
      • 
        To promote settlement
        
      • 
        One exception to discovery rules
        

You are associates working with Clinton’s lawyer Robert Bennett. Judge Wright has decided Clinton’s 12(c) motion and allowed Jones’ amended complaint. What are your major discovery objectives? What constraints must you consider?

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  Discredit Jones (information to embarrass her)--esp. because she is claiming damage to reputation
  
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    Employment records
    
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      Review sheets, other employment data
      
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      No adverse job actions (no opportunities for advancement that she was passed over for)
      
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      Prior complaints of sexual harassment
      
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      Goes to show that she has no damages
      
  • 
    Medical records
    
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      Emotional instabilityto show if she is actually distressed
      
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    Names of “witnesses” people she says will corroborate her case
    
  • 
    Who is paying?
    
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      Politically motivated?
      
  • 
    Depose any documents regarding fraudulent insurance claims, credit history (to show that she is a liar)
    
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    Hotel records
    
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    Criminal record
    
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  Call up Jones’ lawyer (Ferguson) and talk it out…establish a good repertoire
  
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  Clinton’s past
  
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  Credibility
  
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  Detailed info from White House to show Clinton’s whereabouts
  

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  Discovery generally permitted as to non-privileged matters “relevant to claims and defenses.”
  
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    “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”
    
  • 
    Need to analyze claims and defenses carefully!
    
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  Broad discretion of district courts.
  
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  Insurance policy is technically irrelevant but nevertheless discoverable.
  

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  “Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another’s use in pending or reasonably foreseeable litigation.”
  
  • 
    Where does the duty to preserve evidence derive from? Discovery is party-driven. We don’t want parties destroying evidence. This comes from the court’s inherent power to ensure fair litigation
    
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  Had accident. Hired a lawyer who hired an expert to examine car. He came to the conclusion that the airbag had not been deployed. Couple of years pass before the lawsuit is filed, and there is no car to be found.
  
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  Why did Silvestri lose?
  
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    It wasn’t even his car! It was his landlady’s, but the court says too bad…you had access to the car. You had a duty to preserve evidence.
    
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    Was sanction overly harsh?
    
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    This was Silvestri’s lawyer’s fault; is it fair to punish Silvestri? Yes, for the adversary system to work, we have to punish the client for the misdeeds of the lawyer
    
    • 
      Silvestri could have a claim against his lawyer…but would have to prove that he would have won underlying case (but there is no evidence!)
      

1. 
   Initial Meeting of Parties and Initial Disclosures
   
2. 
   Scheduling Conference With Judge; Scheduling Order
   
3. 
   Party-Initiated Discovery – ORDER IS UP TO PARTIES!
   
   1. 
      Interrogatories
      
   2. 
      Basic questions: Who’s in charge of what, where are records kept, what documents do you have?
      
   3. 
      Requests for Admission
      
      1. 
         Another stage of pleading???
         
   4. 
      Requests for Production of Documents and Things
      
      1. 
         “Give us X and Y”
         
   5. 
      Depositions
      
      1. 
         Function is elicit and “freeze” story.
         

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  Complaint
  
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  Answer (Rule 12)--21, 60, 90 days
  
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  Conference of Parties (Rule 26f)--minus 21 days from 4 months
  
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  Report to Conference/Initial Disclosures--minus 7 days from 4 months
  
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  Scheduling Order (Rule 16b)--4 months
  
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  Trial
  

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  Mainly just giving descriptions…not actual production yet (very expensive)
  
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  Innovation in the 2000 Amendments to the Rules.
  
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  Information that the “disclosing party may use to support its claims or defenses” (26(a)(1)) including:
  
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    Names and locations of witnesses
    
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    Copies of documents OR a description by category and location of documents
    
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    Computation of damages
    
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    Insurance Policy
    
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  26(a)(1)(B) exempts a small category of cases.
  

***A few categories of information (e.g. privileged, work-product) do not need to be disclosed here or elsewhere in the discovery process – MORE LATER!

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  For Albert?
  
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    Names & location of witnesses
    
    • 
      Just name of witness at intersection
      
    • 
      Does he have to give the boss? No, because does not support his claims or defenses
      
  • 
    Medical records (can just give a description)
    
  • 
    Piece of paper with computation of damages
    
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  For Barbara?
  
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    Witnesses
    
    • 
      Probably doesn’t need to turn over boss’s name now
      
    • 
      Mechanic? Probably. Could go toward her defense that she did not maintain her vehicle
      
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      Vagrant?
      
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  All parties must disclose a medical expert (26a2)…at the latest, 90 days before trial
  
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    Name, CV, written expert report
    
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  What if he makes his disclosures and then receives a new medical bill? Must reveal any information that you receive later (supplement is ongoing)
  

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  NOTE THAT COURT MAY ALSO IMPOSE OTHER SANCTIONS!
  

(a) In General.

(1) Number. Unless otherwise stipulated or ordered by the court, any party may serve on any other party no more than 25 written interrogatories…

(2) Scope. An interrogatory may relate to any matter that may be inquired into under rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete….

Con: not always effective

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  p. 429-30
  
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  Problem 1(a): store does not have to answer because they are not a party…cannot induce interrogatories
  
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  Problem 1(b): manufacturer does not have to answer because there are too many (25 is limit)…can ask for the court’s leave
  
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  Problem 2:
  
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    (a) Objection to privilege/work product; parties can also seek a protect order that doesn’t allow the particular discovery
    
  • 
    (b) No, objection must be timely under 33(b)(4); if not, you waive it
    
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    (c) Write a letter saying that she doesn’t understand what he means…she can move to compel if she doesn’t get any clarity
    
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  Problem 3: Is listing records ok?
  
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    Rule 33(d): “if burden is substantially the same for either party;” and can give the interrogating party a reasonable opportunity to examine and audit the records and to make copies, etc.
    
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  Clinton’s interrogatory (PoP p.79) = contention interrogatory (“that you contend was taken as a result…”)
  
  • 
    Usually can be answered at the end of the discovery period
    

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  When? After 26(f) conference
  
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  What subject? Anything relevant under Rule 26.
  
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  Another stage of pleading? Other party must admit or deny.
  
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    An admission is deemed conclusively established (unless court permits withdrawal or amendment)
    
  • 
    Purpose is to lock in facts.
    
  • 
    Unlike pleadings, defendant gets equal opportunity to have plaintiff admit or deny facts.
    
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  Problem 4 (p. 431): if a witness told them something, do not have to make an admission because it is not conclusive
  
  • 
    But, if it said: admit that a witness told you X, then they would have to respond to that
    
  • 
    Compare admission to—e.g., interrogatory
    
    • 
      If Π served Δ with interrogatory asking for names of any witnesses who had seen anyone trip on tent wire—would Δ have to supply boys’ names?
      
    • 
      Does that mean Δ has to admit prior “trips”?
      
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      Why?
      
      • 
        Could boys be wrong, lying, mistaken?
        
    • 
      Interrogatories, depositions are evidence about contested events; admission removes event from list of contested events
      
    • 
      Admission in one case cannot be used for any other purpose
      

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  When? After initial disclosure and after 26(f) conference
  
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  What subject? Anything relevant under Rule 26.
  
  • 
    Very broad document requests are the norm.
    
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  But what’s good for the goose is good for the gander!
  
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  “Document” = very broad. See 34(a)(1)(A)
  
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  Response/Objections in 30 days. See 34(b)(2).
  
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  Documents must be produced according to category OR as kept in ordinary course of business. See 34(b)(2)(E)(i)
  
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  Can be sent to non-parties via Rule 45. See 34(c).
  

Problem 1 p. 433:

1. 
   Photograph
   
   1. 
      Not if it will be used solely for impeachment
      
   2. 
      Not being able to use it; under Rule 37
      
   3. 
      Yes, a photograph counts as a document
      
   4. 
      Turns on whether failure to produce was harmless or not
      
2. 
   Can subpoena a third party under Rule 45
   
3. 
   Defendant can object as overly broad; not relevant under 26(c)
   

• 
  (a) Depends if he is still injured…but if its only for past medical bills, then probably not
  
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  (b) Yes, if Pat requests one
  
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  (c) Yes, by request
  

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  Pros and cons?
  
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    (Most?) effective way to get information but very expensive.
    
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  Goals?
  
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    Gain information, get admissions
    
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  How do you get a deposition?
  
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    For a party, issue a “Notice of Deposition pursuant to Rule 30.” See 30(b)(1).
    
  • 
    For a non-party, use a subpoena. 30(a)(1).
    
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  Limit of 10 depositions, 7 hours per dep.
  
• 
  Common issues:
  
  • 
    Can you depose a company? Rule 30(b)(6)
    
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      Managing directors, agents, officer etc.--company will pick who it wants to answer the questions
      
    • 
      I.e. if the questions are financial, CFO can answer, etc.
      
  • 
    In a deposition, what questions can lawyer direct witness not to answer? What questions must witness answer even if “improper”?
    
    • 
      Cannot instruct your client not to answer unless, under 30(c)(2), it preserves a privilege
      
  • 
    What’s the theory behind requiring witness to answer an objectionable question?
    
    • 
      There is not judge there to rule on the objection
      
  • 
    What do you do if a witness refuses to answer a question?
    
    • 
      Problem 1(c) (p.435): try to work out with the lawyer
      
    • 
      Under 30(d)(1), can allow additional time if lawyer needs extra time to fairly examine deponent
      
    • 
      Rule 31: to compel
      

• 
  Cooper has never seen this used
  
• 
  Very limiting
  

Some information is relevant, but the rules nevertheless place that information outside of the reach of discovery.

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  Privileged information. See 26(b)(1)
  

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  Trial preparation material. See 26(b)(3)
  
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  (Non-testifying) Expert information. See 26(b)(4)
  
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  Overly burdensome discovery. See 26(b)(2)
  
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  Overriding privacy concerns (next class)
  

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  Relevance ties discovery and evidence to substantive law.
  
  • 
    A matter of inference and common sense, not technical law
    
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  “Irrelevant” means that substantive law denies significance of this information.
  
  • 
    E.g. motive for breach of contract.
    

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  Privilege trumps relevance.
  
  • 
    Not intuitive; technical, detailed.
    
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  “Privileged” means that we think something more im-portant than “correct” outcome of case.
  
  • 
    E.g., relational privileges (doctor-client, spousal, lawyer-client)