Two Approaches Top-Down: smj, pj bottom-Up: lawsuit from beginning to end Drafting the Rules



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Problem 1 (p.440)

Albert sues Barbara alleging that she intentionally drove her car into Albert’s. At deposition, he asks if:



  • Did you intentionally collide with Albert?

    • Relevant? Yes

    • Privilege? Barbara’s lawyer can make the objection under privilege against self-incrimination (even though this is a civil case; could then face criminal charges)

      • However, this can be commented on in a civil case

Albert sues Barbara for intentional infliction of emotional distress. Barbara seeks to discover existence and contents of Albert’s psychiatric records.

  • Relevant? Yes

  • Privileged (what privilege?) Doctor-patient

  • Can Barbara get them? Yes

  • Why? Because it goes to the basis of the claim. Albert put this in issue. Privilege would be overcome because he raised it.


Attorney-Client Privilege

  • Communications among privileged persons in confidence for the purpose of obtaining legal advice

    • Communications are privileged; facts are not.

      • Not privileged: “where were you that night?”

      • Privileged: “what did you tell your lawyer about where you were that night?”

  • In the corporate setting, communications between the lawyer and the corporation’s employees are generally privileged. Upjohn.

    • Old rule: “control group”

    • New rule:

  • Documents removed from privilege must be listed on a “privilege log.” See 26(b)(5).

  • The problem of waiver


See chart on slide #6
Hickman_v._Taylor'>Trial Preparation Material:

Hickman v. Taylor

  • Defense attorney had interview other persons believed to have some information relating to accident and in some cases he made memoranda of what they told him

  • Plaintiff wants this information…its relevant

  • Privileged? Case was decided before Upjohn so these conversations with company employees were not privileged (at the time)

  • Court says they are not discoverable--it would destroy the adversary system…can’t have one attorney doing all the work for the other

  • If relevant & unprivileged, why not discoverable?

    • “Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.”


Hickman Today

  • Hickman codified in Rule 26(b)(3): “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative….”

  • Qualified Immunity: Discoverable if “party shows it has substantial need for the material to prepare its case and cannot, without undue hardship, obtain the substantial equivelent by other means.” 26(b)(3)(A)(ii).

    • BUT “opinion work product” remains immune from discovery. 26(b)(3)(B).

      • In your memo: “This memo contains my opinions and impressions…”

  • WORK PRODUCT IS NOT AN ABSOLUTE IMMUNITY…QUALIFIED


Scope and Limits of Work Product Doctrine

  • Doctrine applies to nonlawyers: party’s representatives “including consultant, surety, indemnitor, insurer, agent.”

  • Example: Fortenbaugh spends hours and thousands of client’s dollars combing the riverside and discovers a witness who saw everything. Fortenbaugh interviews him and drafts a memo about the interview. What can other side discover and how?

    • Initial disclosure: must disclose the names of potential witness that has information that Fortenbaugh intends to rely on

    • Then Plaintiff can depose the witness

  • Party or witness may obtain copy of own written or recorded verbatim statement. 26(b)(3).


Privilege v. Work Product

A-C Privilege:

  • “Communications among privileged persons in confidence for the purpose of obtaining legal advice.”

  • Source: law of evidence.

  • Absolute immunity

  • Narrower: communications only

  • Broader: A-C communications seeking legal advice about any subject.

  • Facts themselves are never privileged!

Work Product:

  • “Documents and tangible things that are prepared in anticipation of litigation or trial by or for another party or its representative.”

  • Source: Rule 26(b)(3).

  • Qualified Immunity

  • Broader: All tangible and intangible material

  • Narrower: Material must be created in anticipation of litigation.

  • Facts themselves are never work product!


Discovery with Experts:

  • What is an expert? See Fed. R. Evid. 702

    • If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

  • Problems of Expert Testimony in the conduct of litigation

    • How will parties find out that experts are involved?

    • How will the parties be able to probe expert’s qualifications & scientific validity of methods?

    • How will parties find out what the experts have concluded?

    • How will the parties probe experts’ opinions?

  • The Rules’ Answers:

    • Identities of experts?

      • 26(a)(2)(A)--Disclose identities of potentially testifying experts

        • Parties know this involves experts from beginning

    • Qualifications & contents of opinions?

      • 26(a)(2)(B)--testifying experts must submit bio & report

      • 26(b)(4)--non-testifying experts

    • Probing expert testimony?

      • 26(b)(4)--routine deposition of testifying expert; special showing for nontestifying expert

      • Materials created by experts – the rule is changing.

        • Work product protection for early drafts of experts…and protection between conversations between expert and lawyer

  • Problem 1 (p.450)

    • (a)(1) Dr. House is a fact witness and must be disclosed under 26(a)(1)…not an expert for the purposes of the rules

    • (a)(2) Dr. Welby is an expert…if he is a testifying expert, he must be disclosed under 26(a)(2). If he is a non-testifying expert, then no disclosure necessary

    • (a)(3) No, Dr. House is not required to submit a report because he is just an ordinary fact witness.

    • (a)(4) Yes, Dr. Welby can be deposed if he is going to be a testifying expert

    • (b) Must make a special showing to depose a non-testifying witness


Non-testifying Expert:

An expert hired in anticipation of litigation isn’t testifying because. . . .

1) Conclusion didn’t match theory of the case

2) Good science, bad witness

3) Good conclusions but flunked Daubert

4) Fee dispute, unavailability, better witness, etc?

5) Or party wants to be able to have frank, non-discoverable conversations with expert.

And other side wants this info. . .

–Hopes it’s reason #1
Thompson v. Haskell


  • Plaintiff was suing her employer for sexual harassment

  • Defendant wants to depose Dr. Lucas, a non-testifying expert psychologist

  • Court says that he can because her mental state (10 days after the alleged incident) is highly relevant--Dr. Lucas is the one who examined her closest to the alleged incident

  • Is it privileged? No but it could be but she brings her mental state up


Chiquita International Ltd. V. Bolero Reefer

  • Bananas sues shipper after 43,000 bananas were lost as sea because of faulty loading cranes

  • Bananas has a marine surveryor to meet the vessel and examine it…expert prepares a report, which the defendant wants

  • Report is relevant and not privileged

  • Court does not allow discovery because Reefer had its own chance to get the expert…hints back to the work product doctrine (lawyers should do their own work)


3/23: Discovery & Privacy

Rule 26(c): Protective Order:

(1) In General… “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(A) forbidding the disclosure or discovery;

(B) specifying terms, including time and place, for the disclosure or discovery;

(C) prescribing a discovery method other than the one selected by the party seeking discovery;

(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters….”


Stalnaker v. K-Mart

  • Depose these four women who also work at the same office to question them about the culture at K-Mart and concerning voluntary romantic conduct or their sexually related activities

  • Even if relevant, court can order a protective order to hide embarrassing information

  • Court: inquiry into voluntary romantic or sexual activities with Mr. Graves to the extent they show any conduct on his part to encourage, solicit, or influence any employee of the defendant to engage or continue in such activities

    • Also, cannot harass or embarrass…must use only for the purposes of litigation


Privacy Issues in Jones v. Clinton

  • Clinton’s Motion For Protective Order (page 102)

    • What is Clinton asking for? Limit scope of discovery to purported incidents of nonconsensual conduct by him occurring close in time, and in the same work place--the AIDC--as the events alleged in the complaint

    • What are Clinton’s arguments?

      • Overly broad

      • Asking for 20 years bank of consensual relationships

      • Anything outside of him being governor is irrelevant

    • What are Jones’ arguments?

      • Could lead to the discovery to admissible evidence

      • Testimony of other women goes to give credibility of Jones’ claim

      • Consensual relationships can still be sexual harassment…consented because of the possibility of advancement…who decides what is consensual?

    • How does Judge Wright rule?

      • He limits discovery to 5 years before and 5 years after…allows discovery to employees who had sex with Clinton where state troopers were involved

    • This is not attorney-client privilege…then it would be wholly outside of discovery

    • Also, this is not work product. Then, it would also be outside of discovery unless a substantial need was demonstrated.

  • Clinton’s lawyers are pre-judging the evidence…judge has no idea what the evidence would show

  • “Power of procedure”led to Clinton’s impeachment

  • Rights of nonparties (Judge Wright’s Order of Jan. 9, 1988)

    • By what mechanism can a nonparty protect itself from discovery? Motion for protective order under Rule 26 (party usually makes on behalf on nonparty)


3/28: Discovery VI: Ensuring Compliance and Controlling Abuse of Discovery

Anatomy of Discovery Abuses:

  1. Too little discovery: “stonewalling”

  2. Too much discovery: “scorched earth”

  3. Mismatched discovery

    1. Generally a result of significantly unequal resources


Tools for Managing Discovery:

  • Limits on discovery

    • See Rules 26(b)(1), 26(c), 26(g).

    • Signature requirement…swearing that discovery is for a proper purpose

  • Sanctions for bad behavior.

    • See Rules 26(g) and 37.

  • Judicial supervision

    • See Rule 16.

Problem 1 (p.462)



  • Meet & Confer”: First, send a letter to the other side, trying to work it out (at least one, if not two)

  • Then, you file a motion to compel the other side to answer interrogatories

  • Rule 37(a)(5): If the motion is granted, the court must require the other party to pay mandatory expenses, including attorney’s fees, of making the motion

    • However, if the other side has a good faith argument and position was substantially justified, then the court cannot order payment of expenses


Rule 37:

  • Typical discovery dispute: Party issues discovery request and receives inadequate (or no) response. What can responding party do?

Step 1: Try to work it out! See 37(a)(1).

Step 2: Obtain an order compelling disclosure. See 37(a)(3)(a)



    • No monetary sanctions if “nondisclosure, response, or objection was substantially justified.” 37(a)(5)(A)(ii).

Step 3: Obtain sanctions for failing to comply with order. See 37(b)(2)(A).
Theory of “Meet & Confer”

  • Parties will either—

–Realize they can solve this on their own;

–Narrow the range of what they disagree about



  • Result: raises “cost” of making motion; also raises cost of Rambo tactics

–Have to document efforts to resolve in good faith

–Refusal to discuss will have consequences


Problem 2 (p.462): failure to do something in response to discovery request

  • Make a motion for sanctions under 37(d)

  • Possible sanctions: reasonable attorneys fees, any of the ones in 37(b)(2)


Zubulake v. UBS Warburg LLP

  • What was Zubulake’s claim? Gender discrimination

  • What discovery did she seek? Email exchanges found on certain back-up tapes

  • Why didn’t UBS produce the requested information? Certain back-up tapes were missing…even though they delete every three years, this was still within the three years

  • What discovery rule did UBS violate? No discovery rule was violated (all they can say is “Your Honor, I can only produce what I have.”)

  • Parties’ duty: duty to preserve relevant evidence

    • When does it arise: when the party has notice that the evidence is relevant to future litigation (usually arises earlier than when the law suit is filed--when litigation is reasonably foreseeable)

  • Remedy:

    • Reconsideration of cost-shifting order (court says no)

    • Adverse inference on jury instruction

      • Duty to preserve

      • Culpable state of mind (intentional or at a minimum, grossly negligent)

      • Relevance of information (she does not meet her burden at this element)

    • UBS must pay the costs of additional depositions (court allows this)

  • Problem is that the lawyers for UBS do not understand their client’s information management system


Discovery Today

  • How much has the explosion of electronic information changed discovery?

    • Changes in the rules?

    • Parties’ discovery plan must consider “any issues about disclosure of electronically stored information, including the form or forms in which it should be produced.” 26(f)(3)(C).

    • Specific limitations on discovery of electronically stored information. 26(b)(2)(B)

    • “Clawback” provision for privileged material. 26(b)(5)(B).

    • Changes in practice?

      • Increased expenses and complexity

      • Advent of e-discovery consultants

      • Hysteria


Sanctions in Jones v. Clinton

  • What was Clinton sanctioned for?

  • Did Judge Wright have authority to sanction Clinton?

    • Rule 37(b)(2): “If a party … fails to obey an order to provide or permit discovery…The court where the action is pending may issue further just orders….”

    • Policy arguments for/against?

  • How did Judge Wright calculate the sanction?

  • Agrees to be disciplined by the Arkansas bar…but will not admit guilt under provision that involves dishonesty


Default_Judgment,_Involuntary,__Voluntary_Dismissal__How_Suits_End_Without_Adjudication'>Resolution Without Trial
3//30: Default Judgment, Involuntary, & Voluntary Dismissal

How Suits End Without Adjudication

  • Abandonment by plaintiff

    • May represent judgment on merits

    • May represent inadequate financing of suit.

  • Contractual resolution:

    • Another forum: arbitration

    • Settlement

      • Arrived at by parties alone

      • Assisted by mediation, or similar third-party

        • Should judge do this?


The Pressure to Choose Adjudication or an Alternative

  • Adversary system constructed to drive cases forward:

    • Defendants who fail to defend themselves face default judgment under Rule 55.

    • Plaintiffs who fail to prosecute case face dismissal under Rule 41.

  • Although these are strong remedies, courts are ambivalent about deploying them…


Default

Peralta v. Heights Medical Center

  • Defective service: service was effected over 90 days after it was filed (too late under Texas law)

  • Defendant does not show up in court (though he had actual notice)…Hospital gets a default judgment

  • Defendant comes back, appeals, and says that he didn’t have service (and therefore, no due process) so he wants the default judgment set aside

  • Texas law says that it must be shown that the petitioner had a meritorious defense to the action in which judgment had been entered, that the petitioner was prevented from proving his defense by the fraud, accident, or wrongful act of the opposing party, and that there had been no fault or negligence on petitioner’s part

  • Court: this is unconstitutional and violates Due Process

    • Court wants the case to start from the beginning because improper service boxed the defendant in…Even if he didn’t have a meritorious defense, could have impleaded the employee who debt, settled, or paid the debt

    • Even people that will be total losers on the merits, have the right to be in court and control their own destiny in terms of the way the case goes


FRP: Rule 55: Default, Default Judgment

***Federal rules say court may set aside default “for good cause” or under Rule 60(b)…broad discretion


Real-life Problem

  • Your client has been served with complaint. You’re working frantically on an answer, but need more time.

    • You call Π’s lawyer & request extension of time to answer; she says yes. You sigh and go back to work.

    • Any problem?

      • Yes, oral agreementneed to put it in writing

      • Must go to court--only court can extend the time (need a court order)


More on Default Judgments

  • In real world, most default judgments occur because--

    • 1) Δ knows he has no defense (and no assets) so has rationally concluded that hiring a lawyer & contesting case is foolish.

    • 2) Δ’s lawyer has forgotten about a deadline

    • 3) Δ’s lawyer has effectively abandoned the client, often as a result of substance abuse or a personal crisis.

  • So what to do if Δ tries to get default set aside?

    • Unlikely in situation #1

    • What about 2 & 3? What should court do?

      • Easy cases: Π has contributed to problem (as in Peralta): set aside default and start again

      • Hard cases: Π innocent

        • Can stay with default and sue lawyer for malpractice

        • Can set aside default—but why?


Legal System & the Neglected Client

  • Default judgment may represent an abandoned client.

  • What responsibility does bar have for lawyers who abandon clients?

    • Malpractice insurance not required

      • Compare car insurance and health insurance!

    • Some states (including CA) have “client protection” fund

      • But it typically covers only a limited amount ($50K) and covers theft from client, not negligence.

  • Defensible situation?


Default in Jones v. Clinton

  • If Clinton took a default, then how would have Jones proceeded? See Rule 55(b).

    • Enter a judgment by the court (by the clerk will not work because she did not ask for a “sum certain”)

      • Asked for a certain amount, plus attorney’s fees, nominal damages, and other damages that the court deems so

    • Court hearing (must give party notice for this)

    • So there still would have been a public hearing! No avoidance of embarrassment


Rule 41: Involuntary Dismissal

  • Flip side of default judgment – forces plaintiffs to move the lawsuit forward.

    • Analogy: extension of statute of limitations???

  • Why do defendants care if plaintiffs don’t pursue the case?

    • Don’t want cloud of litigation hanging over you

  • Difference between default and involuntary dismissal:

    • Rule 41 makes involuntary dismissal discretionary

      • Rule 55 makes default mandatory

    • Can be raised by the court OR by the adversary

  • What constitutes “failure to prosecute?”

    • Fairly fuzzy standard


Voluntary Dismissal

  • When (if ever) should we permit plaintiff to simply drop his case?

  • Two stages under Rule 41

    • Before answer (or motion for SJ), plaintiff has right to voluntarily dismiss. 41(a)(1)(A)(i).

    • After answer, need defendant’s permission or court order. 41(a)(1)(A)(ii); 41(a)(2).

      • 41(a)(2) grants court discretion.

  • Why wouldn’t defendant be happy about voluntary dismissal?

    • Voluntary dismissal without prejudice allows them to re-file

    • Want resolution b/c you’ve spent all this money

    • Defendant will want it filed “with prejudice” and/or a portion of their attorneys fees

    • Default route is without prejudice, unless with prejudice is asked for

  • What is effect of voluntary dismissal? Can plaintiff re-file?


4/1: Missed Class; Notes from Michael


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