Transcript Slide 1
Agenda for 9th Class • Name plates out • Writing Assignments – Email your assignment to the correct TA • Individual Writing Assignments for Writing Groups 1-5 should be emailed to Jessie Culpepper • Individual Writing Assignments for Writing Groups 6-9 should be emailed to Joel Frost-Tift • Group Writing Assignments for Writing Groups 1-3 should be emailed to Jessie Culpepper • Group Writing Assignments for Writings Groups 4-6 & 6-9 should be emailed to Joel Frost-Tift – Use suggested file format • [Last name][First name][Group number][Number of class for which assignment is due][Short description of assignment] • KlermanDaniel19DiscoveryI. • Discovery 1 – Intro & Scope – Depositions Assignment for Next Class • FRCP 26(b)(3) • Yeazell 487-97 • Writing Assignment / Questions to think about – What discovery device, if any, did Fortenbaugh use to secure statements from the survivors? – If petitioner sent the tug owners interrogatories requesting detailed summaries of any witness statements, would such discovery be barred by the reasoning in Hickman? Would it be barred by FRCP 26(b)(3). – Pp. 488ff Q1 – PP. 495ff Q1, 3, 4b-d, 5 • Optional – Glannon 413-15, 419-20, 429-32 2 Last Class • Amendment & Relation Back – Analyze all factors / requirements – Don’t analyze relation back unless plaintiff is bringing claim barred by statute of limitations – If statute of limitations problem • Necessary to analyze amendment and relation back separately • But no relation back is reason to deny amendment • 1995 Exam – Best answers • Saw multiple reasons for 12(b)(6) • Identified invalid legal theory as most strategically advantageous – On exam, should mention other grounds for 12(b)(6) » Missing element, conclusory allegations, etc. – In practice, need to decide whether worth client’s money, court’s time, and possibility of alienating judge and opposing counsel3 – Answer, etc. Discovery • Biggest innovation of 20th century procedure • Costs and benefits – Enormously expensive, time consuming, intrusive – Improves accuracy and thus enhances justice, Promotes settlement • Main methods – Depositions – Requests for documents (including emails) • Largely unsupervised – Lawyers make requests directly to opposing counsel • Judge’s permission not generally required – Lawyers respond directly to opposing counsel • Judge does not ordinarily see – Lawyers can bring problems to judge’s attention – Motions to compel, motions to protect, motions for sanctions 4 – But judges don’t like to be involved – Often magistrate judges handle Discovery: Scope • FRCP 26(b)(1). Any non-privileged matter relevant to claim or defense • Privileges – attorney-client, doctor-patient, self-incrimination • Relevance – Information is relevant if it helps prove or disprove a claim or defense – Need not be determinative • Hit and run accident. Plaintiff says offending car was yellow. Fact that defendant owns yellow car is relevant – Sufficient that reasonably calculated to lead to admissible evidence – May do broader discovery relevant to “subject matter involved in the action” with court permission • Limitations – Privilege – Special rules for work product and experts – Cost outweighs likely benefit. 26(b)(2)(C )(iii) – Annoying, embarrassing, oppressive. 26(c )(1) 5 – Court may issue protective order. 26(c )(1) Discovery: Depositions • Much like oral testimony at trial – Deponent sworn, opposing counsel present, court reporter transcribes – Lawyer asks questions, deponent must answer – No judge • Only depose witnesses controlled by or friendly to opposing side – Don’t need discovery to get info from own side or friendly witnesses – Deposition is expensive and other lawyer present • Only supposed to instruct deponent not to answer for 3 reasons. FRCP 30(c)(2) – To protect privilege – To enforce court ordered limitation discovery – To made motion to court under FRCP 30(d)(3) – Otherwise, can object to question (e.g. irrelevant, hearsay, embarrassing, duplicative), but deponent must answer • But if question is really improper, is opposing side likely to complain 6 to judge? Questions on Discovery • Briefly summarize Davis v Precoat Metals and Stefan v Cheney • Pp. 463ff. Q1-4 7