The Discovery Process Serves
the Purposes of:
1. Expediting the litigation
by:
a) Identifying and narrowing
issues.
b) Uncovering facts
c) Preserving evidence for
trial.
d) Expediting trial
preparation by committing parties or witnesses to particular versions
of facts.
and
2. Encouraging Settlement by:
a) Educating the parties as
to the strengths and weaknesses of their respective cases
b) Exposing doubtful claims
or defenses.
c) Providing information for
informed case evaluation.
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Scope of Discovery
Broader Than What Would Be
Relevant Evidence at Trial
Under
FRCP 26, a party is entitled to discover not only material which is
relevant and admissible at trial, but also to discover information which
"appears reasonably calculated to lead to the discovery of admissible
evidence." Discovery is permitted of acts and events transpiring
subsequent to those giving rise to the cause of action where there is a
possibility that the information sought may be relevant to the subject
matter of the pending action rather than to limit it to the issues
involved in the particular case. Relevance is not to be measured by the
precise issues framed by the pleadings but by the general relevance to the
subject matter.
Information Protected From
Discovery
Work Product Privilege
The "work-product"
of a lawyer has a qualified immunity from discovery. I.e., it is
discoverable only on a substantial showing of necessity or justification.
(Wright, § 82;
Hickman v. Taylor, 329 U.S. 495 (1947).)
Cal.Code.Civ.Proc. § 2018(b) creates a qualified privilege for
attorney's work product by providing that such information is not
discoverable unless the court determines that denial of discovery will
unfairly prejudice the trial preparation of the party seeking it or will
result in injustice.
There is an absolute privilege
for writings that reflect the attorney's impressions, conclusions,
opinions, legal research, or theories. Such information is not
discoverable under any circumstances. (Cal.Code.Civ.Proc.
§ 2018(c).)
California's work product
privilege provides for:
1. Limited discovery only upon a
showing of "substantial need and inability without undue hardship to
obtain substantial equivalent.
2. Absolute protection of
writings reflecting attorney's impressions, conclusions, opinions or legal
research or theories.
Protective Orders (FRCP
26(c).)
A protective order may be sought
by any person against whom discovery is sought, party or nonparty.
Burden is on person seeking
protective order to show that it is necessary "to protect a party or
person from annoyance, embarrassment, oppression or undue burden or
expense.
Types of protective orders
available:
"That discovery not be had."
(Rule 26(c)(1).)
"That the discovery may be had
only on specified terms & conditions, including a designation of the time
or place." (Rule 26(c)(2).)
"That certain matters not be
inquired into, or that the scope of the discovery be limited to certain
matters." (Rule 26(c)(4).)
"That a trade secret or other
confidential research, development, or commercial information not be
disclosed or be disclosed only in a designated way." (Rule 26(c)(7).)
Expert Witnesses
When an expert is an eyewitness
to material events in a case, or a party to an action, as opposed to being
hired in anticipation of litigation, no work-product protection exists.
E.g., a doctor who provides emergency treatment to an accident victim may
be deposed as to the condition of the patient.
Experts hired to assist in
preparation for trial are treated differently depending on whether they
will be called to testify at trial.
(1) A party may learn by
interrogatories the names of the experts his opponent expects to call, the
subject matter on which the expert is expected to testify, and the
substance of the facts and opinions to which the expert will testify.
(2) Facts or opinions may be
obtained from an expert who has been retained in anticipation of
litigation but who is not expected to testify only "upon a showing of
exceptional circumstances under which it is impracticable for the party
seeking discovery to obtain facts or opinions on the same subject by other
means." (Friedenthal § 7.6; Wright § 81)
In addition to testifying and non
testifying experts, courts have also identified a third category,
informally consulted but not retained. Neither the opinions or identity
of an informally consulted but unretained expert are discoverable without
a showing of special circumstances. This is akin to a
work-product type privilege.
Particular Discovery Devices and
Methods
Definition:
Self-executing procedure for examination under oath of an expected party
or witness for discovery or as evidence.
Advantages: Permits (1)
evaluation of demeanor and potential courtroom impact of
deponent; (2) probing follow-up of responses; (3) deponent
spontaneity; (4) minimization of role of opposing counsel; (5) discovery
on 10 days notice.
Testimony may be used (1) by any
party against deponent to
impeach or contradict; as substantive evidence if deponent is
unavailable or exceptional circumstances exist or if another party has
already introduced a portion of the deposition. (2) By adverse party for
any purpose against party or related witness. (FRCP
32(a).)
Disadvantages:
Expensive, time consuming, elicits only facts within deponent's personal
knowledge, inquiry into deponent's legal contentions not permitted, may
perpetuate damaging testimony.
Against Whom Available:
Any person. (Not limited to parties)
Timing and Frequency of Use by
Proponent: If action is pending, any time after service of summons or
appearance of defendant. Unlimited except subject to protective order if
court determines that burden, expense, or intrusiveness clearly outweighs
likelihood that information sought will lead to discovery of admissible
evidence. (Cal.Code.Civ.Proc.
§ 2017(c).) If perpetuation of testimony is sought: prior to bringing
action, prior to taking appeal, and during pendency of appeal.
Proponent's Procedures to
Initiate: Serve 10 days written notice to all parties, except those
adverse parties in default or not appearing.
Definition:
Self-executing procedure for submission of written questions to party to
be answered under oath.
Advantages: (1)
Comparatively inexpensive; (2) inquires into all knowledge available to
answering party (3) inquires into legal contentions and bases for them;
(4) answers (always by party) may be more specific and therefore bind more
than general answers at deposition; (5) less complex and expensive to
elicit further answers.
Any party other than the
responding party may use responses at trial to the extent they are
otherwise admissible in evidence.
Disadvantages: (1)
Sometimes less effective than personal confrontation; (2) no opportunity
to evaluate demeanor of deponent; (3) preparation of interrogatories in
complex cases time consuming and expensive, since must by carefully
drafted to be effective; (4) difficult to get a narrative response.
Against Whom Available:
Party only.
Timing & Frequency of Use by
Proponent: Any time after service of summons or appearance of other
party. A party may propound to another party 35 specially prepared
interrogatories and any additional number of official form
interrogatories.
Proponent's Procedures to
Initiate: Serve interrogatories on all parties.
Opponent's Responses:
Answer; answer and object.
Proponent's Remedies for
Failure or Refusal: Seek order compelling answers or order
compelling further responses.
A party may make inspection
demands on "any other party to the action" to produce and permit the party
making the request to inspect and copy, any designated documents.
Self-executing procedure for
written request that party admit genuineness of relevant documents or
truth of relevant matters. Rule 36(a) provides that one party may serve
upon any other party a written request to admit the truth of certain
matters of fact that are in dispute or to admit the genuineness of any
relevant document. The party who receives the request to admit must
respond under oath & in timely fashion, admitting or denying each matter
for which an admission is requested. The responding party may also object
to a request because improperly phrased (as "vague," "ambiguous", etc.) or
because it seeks privileged or protected information.
If a party who receives a request
to admit does nothing, the party has admitted the matter in the request.
Rule 36, unlike other discovery devices is self executing. Any matter
admitted is conclusively established unless the court permits withdrawal
or amendment of the admission.
Advantages: (1)
Disposes of undisputed issues and facilitates motion for summary judgment;
(2) failure to admit or deny constitutes an admission; (3) requires
admission or denial of facts known or available to answering party; (4)
may be used in conjunction with interrogatories; (5) comparatively
inexpensive.
Disadvantages: (1) Does not discover new
facts; (2) difficult to get narrative response; (3) difficult to follow-up
quickly a response of "unable to admit or deny."
Against Whom Available: Party only.
Timing and Frequency of Use by Opponent:
Any time after service of summons or appearance of a party. No party
shall request that any other party admit more than 35 matters that do not
relate to the genuineness of documents. Number of requests for admission
of the genuineness of documents is not limited except as justice requires
to protect from annoyance, embarrassment, etc.
Proponent's Procedures to Initiate: Serve
requests on party requested to admit.
Opponent's Responses: Admit; deny;
admit, deny and object; state inability to admit or deny.
Proponent's Remedies for Failure or Refusal:
Seek order requiring further answers or that genuineness of documents or
truth of matters be admitted or requiring denying party to pay reasonable
expenses incurred in making proof. Rule 36 provides that requests shall
be deemed admitted unless they are denied within the time specified (not
less than 20 days) in the request. If a party serves a denial of the
matters in the request to admit and at trial the matter is proved by the
party requesting the admission, then
FRCP 37(c) provides that the latter may collect from the other party
the reasonable expenses incurred in making the proof.
Procedure by motion for court order, on showing
of good cause to obtain mental, or physical examination of a party or
controlled person whose condition is in controversy in pending action.
Advantages: Aids preparation for and
conduct of trial as well as settlement by allowing examination of parties
& controlled persons whose physical or mental condition is in controversy
in an action.
Disadvantages: Showing of good cause
required before court order will issue.
Against Whom Available: Any party, his
agent or person in his custody or legal control whose condition is in
issue.
Timing & Frequency of Use by Proponent:
Any time after action brought by making demand on party.
Rule 35 requires that the moving make an
affirmative showing that the subject party's mental or physical condition
is in controversy and that there is good cause for the examination
requested. (Schlagenhauf
v. Holder, 379 U.S. 104 (1964).)
Sanctions for Noncompliance (FRCP
37)
Sanctions serve a three-fold purpose. They
insure that a party will not be able to profit from its own failure to
comply. They are specific deterrents which seek to secure compliance with
the order at hand. Courts are free to consider the general deterrent
effect their orders may have on the particular case and on other
litigation, provided that the party on whom they are imposed is, in some
sense, at fault.
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