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Agenda for 7th Class• Admin

– Slides– Name plates out

• Work Product

• Experts

• Introduction to Sanctions

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Next Class• FRCP 26(g), 30(c)-(d), 37• Yeazell 508-512• Handout• Questions to think about / Writing assignment

– Yeazell p. 510 Qs 1-5– Questions on Phillips (next slide)

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Questions on Phillips• 1) In Phillips v Manufacturers Hanover Trust, what rule, if any, did

defendant’s counsel violate? Be sure to consider FRCP 11, 26(g), 30(c),30(d), 37(a)(4), 37(b) and 37(d) and explain why each rule was or was not violated. Note that the Rules have been amended several times since 1994, so the reasoning in the opinion may no longer be valid.

• 2) For each rule that you think the defendant’s lawyer violated, what is the sanction? Are sanctions mandatory or discretionary?

• 3) Did the magistrate judge make the right decision in Phillips v Manufacturers Hanover Trust? If you were a law clerk to Judge Francis what would you have advised him to do?

• 4) What, if anything, should the plaintiff’s lawyer in Phillips v Manufacturers Hanover Trust have done differently?

• 5) If the plaintiff’s lawyer asked the district court judge to review the magistrate judge’s decision, is the district court judge likely to affirm the magistrate judge’s decision

Review of Discovery Scope• FRCP 26(b)(1). Any non-privileged matter relevant to claim or

defense is discoverable– Privileges – attorney-client, doctor-patient, self-

incrimination…– Relevance – Information is relevant if it helps prove or

disprove a claim or defense• Depends on substantive law

– Other limitations• Special rules for work product and experts• Cost outweighs likely benefit. 26(b)(2)(C)(iii)• Annoying, embarrassing, oppressive. 26(c)(1)• Court may issue protective order. 26(c)(1)

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Work Product• Work Product 26(b)(3)

– No discovery of “documents and tangible things prepared in anticipation of litigation or for trial … [unless] substantial need”

• Questions– Briefly summarize Hickman– 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. 495ff Q1, 3, 4b-d, 5

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3 Kinds of Experts• Expert who will testify at trial

– Heightened discovery– FRCP 26(a)(2)(A). Disclosure of name of testifying expert– FRCP 26(a)(2)(B). Testifying expert must prepare report and report must

be disclosed– FRCP 26(b)(4)(A). Opposing party may depose testifying expert

• Non-testifying expert, hired in anticipation of litigation or to prepare for trial– Treated like other work product– FRCP 26(b)(4)(D). Non-testifying expert, hired in anticipation of litigation

or to prepare for trial, is shielded from discovery • Unless “exceptional circumstances” 26(b)(4)(D)(ii)

• Experts not hired in anticipation of trial– Subject to discovery like ordinary witnesses– E.g. engineer who designed product which may be defective; doctor who

examined patient for treatment (not for litigation purposes)– Disclosure of facts and opinions, 26(a)(2)(D)

• But not as extensive disclosure as required of testifying experts

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Expert Questions• Briefly summarize Thompson and Chiquita

– Incorporate into your summaries of Thompson and Chiquita answers to p. 502 question 1

• 499ff Qs 1-4; 502ff Qs 2-3– Note that 503 Q3 should refer to 26(b)(4)(B), not 26(a)(2)(B).

• Suppose plaintiff has lung cancer which he thinks might have been caused by exposure to asbestos. Plaintiff’s lawyer has a doctor extract 10 lung samples, which she then sends to 10 pathologists. 9 say the lung cancer was caused by smoking, but the 10th says it was caused by asbestos. The lawyer discloses the 10th pathologist as one who will testify at trial, but says nothing about the other 9 to the defendant. Can defendant’s lawyer find out that plaintiff consulted 10 pathologists? Can she find out their identities? Can she depose the other 9? Why is this important?

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Discovery Sanctions I• Rule 11 does not apply to discovery. See 11(d)• FRCP 26(g). Very similar to Rule 11, except applies to written aspects of

discovery– Discovery requests, responses, or objections must be signed by lawyer– Disclosure is complete– Requests, responses, or objections are warranted by law or non-

frivolous argument to change the law, not for improper purpose, not unreasonable or unduly burdensome

– Sanctions are mandatory. May include fees to opposing counsel• FRCP 30(c)-(d). Depositions

– In general there are two sets of lawyers in a deposition• Lawyer taking the deposition• Lawyer defending the deposition

– Lawyers can object in deposition, but can only instruct deponent not to answer “when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion to the court.” 30(c)(2)

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Discovery Sanctions II• Depositions (continued)

– 30(d)(2). Sanctions on person who “impedes, delays, or frustrates” deposition

– 30(d)(3). May terminate or suspend deposition to make motion to judge to limit deposition

• FRCP 37(a) motion to compel– If opposing party refuses requested discovery– If granted, court must award attorneys fees

• FRCP 37(b). Discretionary sanctions for failure to obey court order– Can be severe, including dismissal, default judgment, or contempt

(imprisonment)

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Discovery Sanctions III• Lots of other sanctions provisions

– 37(c) Sanction for failure to disclose, supplement, or admit• Does not apply to depositions

– 37(d) failure to respond to discovery requests• Failure to attend deposition• Failure to respond at all to interrogatories• Failure to respond at all to request for documents or tangible things• 26(g) wouldn’t apply because no paper to sign