Albert sues Barbara alleging that she intentionally drove her car into Albert’s. At deposition, he asks if:
Did you intentionally collide with Albert?
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.
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.
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”
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 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
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
“Communications among privileged persons in confidence for the purpose of obtaining legal advice.”
Source: law of evidence.
Narrower: communications only
Broader: A-C communications seeking legal advice about any subject.
Facts themselves are never privileged!
“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).
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?
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
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?
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: Too little discovery: “stonewalling”
Too much discovery: “scorched earth”
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.
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)
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
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.
Yes, oral agreementneed to put it in writing
Must go to court--only court can extend the time (need a court order)