Chapter 21 civ pro questions - Informal Investigation and Scope of Discovery

Scope of Discovery

1. Toyota undoubtedly has thousands of nonprivileged written documents about the model of Camry in which Painter was injured. But it also has thousands of electronic files that have never been produced in hard copies, e-mails and maybe even instant messages (if used by its employees on the job) about the Camry, and some websites about the Camry. Or maybe it had such electronic information, but it has since been deleted, or backed up automatically for storage off the employees’ hard drives and then deleted, except that, in the computer world, “deleted” often just means that the file remains on the hard drive until and unless it is overwritten by other data

Are these electronic data discoverable?

2. Suppose, during discovery, Toyota’s lawyer asks Painter what he told his psychiatrist about his mental state, even though Painter seeks no damages for mental injuries or pain and suffering. Or Painter’s lawyer asks Toyota what legal advice its General Counsel has offered, if any, for handling litigation about the Camry accelerator.

3. But can’t Painter just be made to testify during discovery about his conversations with his psychiatrist and then simply object later if Toyota tries to offer that testimony at trial? Can’t Toyota use the same strategy respecting the legal advice from its General Counsel?

Notes and Questions: Proportional Discovery 4. Painter wants to ask a Toyota mechanic during pretrial discovery what he has heard about the alleged defect in the Camry. His answer may well constitute inadmissible “hearsay” under the rules of evidence—an out-of-court statement that in many cases is not admissible at trial to prove the truth of the matter stated. (The rules of evidence are concerned about the reliability of such statements because they were not subjected, when made, to the rigors of cross-examination.) Or Painter may demand in discovery that Toyota produce documents showing changes in the design of the Camry that were made after his accident. This information, too, would ordinarily be inadmissible at trial to prove Toyota’s liability

Can either party refuse discovery on the grounds that the evidence sought in these examples would be inadmissible at trial?

Notes and Questions: The scope of Discovery 5. Suppose Toyota’s lawyer communicated with Toyota’s own employees about the design of the Camry and Painter’s claims of defects. Would those communications be subject to the lawyer-client privilege? If so, does this mean that all communications between corporate employees at every level and the corporate counsel are protected by the lawyer-client privilege if they otherwise meet the requirements for the privilege?

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6. Lawyer Dickens is a business partner with Harris in a hedge fund called Leverage Plus. After the fund loses a lot of money, a disappointed investor sues the fund for mismanagement and seeks discovery of e-mails between Dickens and Harris discussing the fund’s declining financial prospects and Dickens’s ideas about better investments. The e-mails are marked “PRIVILEGED AND CONFIDENTIAL.” Leverage objects to this discovery, invoking the lawyer-client privilege. Assuming that Leverage has the burden of establishing the privilege, are these e-mails privileged and protected from discovery?

7. Assuming that the sparse facts are consistent with an expectation of confidentiality, the real problem here is the purpose of the e-mails. The e-mails are certainly a communication, but do they meet the other standard of Restatement § 68?

8. Suppose Toyota’s lawyer communicated with witnesses to Painter’s accident, promising to keep their statements in confidence and made notes of his communications. Are those notes subject to the lawyer-client privilege?

Notes and Questions: hickman 9. Why, as a practical matter, might you object to disclosing to opposing lawyers or their clients memoranda or other products you had prepared or collected to prepare for litigation? In that regard, consider how, if at all, you would prepare such memoranda differently if you thought that they might be discoverable.

10. If Fortenbaugh was entitled to withhold his work product from discovery, how else might opposing lawyers and their client learn the facts of the tugboat sinking?

11. If they could just ask Fortenbaugh’s client what facts Fortenbaugh learned from the witnesses, how is that different from asking Fortenbaugh or just getting his accounts of the witness interviews?

12. Specific Claim approach?

13. Ad hoc approach?

14. Primary purpose approach?

15. Applying the foregoing principles, how would you decide claims of work product protection for the following documents?

A. At his lawyer’s request, Painter prepares a chronology of events leading to his accident and labels it “WORK PRODUCT—NOT FOR DISCLOSURE.” He would not have prepared it but for the possibility that he might file a lawsuit arising out of the accident

B. Toyota’s design division routinely prepares a statistical summary of dealer repair invoices to identify design defects for the purpose of correcting such defects in future models. Such a summary might well be helpful to Toyota’s lawyer in preparing to resist Painter’s suit and others like it

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C. An insurance claims adjuster prepares a report deciding whether to pay out on a claim. Would it affect your answer if the report was prepared after the insurer had denied coverage on a claim?

D. What about a locomotive engineer’s report of an accident at a railroad crossing?

E. A publicly traded stock corporation is required to file an annual trading report with the Securities and Exchange Commission. Its General Counsel prepares the report, which contains information that may be relevant to shareholder litigation. Is this report discoverable? Overcoming Work Product Protection 16. In Hickman, the Court stressed that the plaintiff had not made a sufficient showing to overcome the work product protection for Fortenbaugh’s files. Rule 26(b)(3) drew on this discussion in setting out the showing necessary to overcome the work product protection. Normally, the discoverer would need to make that showing by filing an affidavit in support of a motion to compel discovery

What showing does the Rule require?

17.  Suppose that the work product consisted of statistical summaries compiled by Toyota from over 750,000 dealer repair invoices. Peter Painter could obtain the “substantial equivalent” by the “other means” of discovering and collating the 750,000 dealer invoices themselves, which, as ordinary business documents, would not qualify as work product. What argument would you make on Painter’s behalf to make the requisite undue hardship showing on these facts

18. Even as it conceded that some showing of necessity and hardship might have overcome the work product protection for written witness statements in Hickman, the Court sharply distinguished Fortenbaugh’s “mental impressions” of those witnesses. The former could be called ordinary or factual work product, consisting chiefly of unexpurgated facts or written statements by witnesses, to distinguish it from the latter opinion work product. With respect to disclosure of opinion work product, the Court was adamant: “[W]e do not believe that any showing of necessity can be made under the circumstances of this case to justify production.” 329 U.S. at 512. Why not?

19. Grey Box Question Harris’s car is struck by a train at a poorly marked railroad crossing, and he is seriously injured. He sues the railroad for negligence and seeks discovery of all documents of any kind concerning the crossing accident. The railroad requires the engineer of any train involved in an accident to file an immediate report of the incident, providing details not only on the accident, but on the speed of the train, observed condition of the crossing, health of the engineer, reasons why the engineer thought the accident happened, and what he thinks could be done, if anything, to avoid such accidents in the future. The reports are prepared on a form designed by the railroad’s lawyers, and copies go to the chief of the railroad operating division (usually a senior engineer), its insurance department, and its general counsel. Lawsuits about accidents at railroad crossings are common, and the railroad expects to be sued whenever there are serious injuries.

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The railroad objects to discovery of the accident report on grounds that it is work product. Which of the following is true?

A. The report is not work product because it was not prepared by a lawyer, claims adjuster, or other representative of the client.B. The report is not work product because it was prepared before any lawsuit from the accident was filed.C. The report is work product because it was prepared in anticipation of litigation, as the railroad expects to be sued when there are serious injuries and it commonly is sued.D. The report is discoverable because it is relevant to plaintiff’s claim for negligence, he could use it to prepare his case, and it is nonprivileged.E. The report is not work product because it was prepared for the ordinary business purpose of running the trains more safely.

Notes and Questions Discovery of Experts 20. On the other hand, if the defendant’s expert had merely been retained to consult about the case and had no better opportunity to view the scene of the accident giving rise to the claim than other available experts of the same kind, what need would the plaintiff have for discovery of the defendant’s expert? If the plaintiff were granted discovery from such a non-testifying expert, how, if at all, might this be unfair to the defendant?

21. Suppose that a defendant’s lawyer called several experts before finally retaining one. The lawyer may have decided against retaining these experts because they were unable or unwilling to give him the opinion he needed, making them especially attractive discovery targets for the plaintiff. May the plaintiff discover the names of the experts who were not retained or specially employed, but merely consulted in the search for an expert?

22. Suppose Gene Gressman is an automotive engineer employed by Toyota who originally designed the Camry’s accelerator system. Assume that by education, training, and experience, Mr. Gressman would qualify as an expert. May Painter take his deposition over Toyota’s expert work product objection?

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Chapter 21 Answers

1. Why not? The scope-of-discovery rule reaches “matter,” not just written documents or tangible things. Matter—information—is discoverable whatever its form, if it is also nonprivileged and relevant. The form of the matter only p. 787impacts the discovery tool that is appropriate to demand it, the method of production, and whether (and how) the court will take into account the costs of compliance in deciding to limit discovery or allocating the costs between the respondent and the discovering party. (Typically, each party pays for its own costs in taking or providing discovery, unless the court otherwise orders.)

2. These questions would ordinarily be objectionable at trial because they call for “privileged information.” They are also beyond the scope of permitted discovery for the same reason: Rule 26(b)(1) targets only information that is “nonprivileged.”

3. The answer is no, if they care about the confidentiality of their communications and not just about what is offered against them at trial. Even disclosure during pretrial discovery might deter Painter from speaking candidly with his psychiatrist, or Toyota from getting candid advice from its General Counsel, to the detriment of relationships that society otherwise promotes. A privilege therefore protects not only against admission at trial, but also against discovery.

4. No. Rule 26(b)(1) does not limit the scope of discovery to admissible evidence. Information otherwise within the scope of discovery (that is, nonprivileged, relevant, and proportional to the needs of the case) “need not be admissible in evidence to be discoverable.” It may, for example, only form a link in a chain of discovery that could lead to admissible evidence. For example, Painter may be able to locate witnesses from the mechanic’s hearsay testimony who could testify at trial from their own personal knowledge. Painter may learn of the existence of other admissible documents or witnesses from the inadmissible post-accident design documents he demanded, or he may try to offer them into evidence at trial for a purpose other than to establish liability

5. The result would be that corporations would enjoy a broad lawyer-client privilege that could insulate them from much discovery to which individuals are still subject. For this reason, some courts limited the corporate lawyer-client privilege to communications made by and to a “control group” of employees in a position to control or take a substantial part in deciding corporate action in response to legal advice

6.  Leverage is invoking the privilege and is presumably the client, but the e-mails are to Harris. Yet, Harris, as a business partner in Leverage Plus, may qualify as its agent and therefore be a “privileged person.” Dickens is a lawyer, but it is not clear whether he was acting as a lawyer to Leverage when he sent the e-mailsAssuming, for sake of argument, that Dickens and Harris qualify as “privileged persons,” we can’t tell whether Dickens’s e-mails were sent in confidence. Courts don’t draw such an assumption just because the sender says so by affixing the label “PRIVILEGED AND CONFIDENTIAL.” You’ll soon learn that virtually p. 797all e-mails sent by lawyers and by many corporate officers at work contain some similar or more draconian label. Calling it so does

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not make it so. The burden rests with the party invoking the privilege to establish a “foundation” for it. A label may be one factor that helps, but it is neither sufficient nor necessary.

7. The Restatement formula requires that the communication be made in confidence for the purpose of obtaining or providing legal assistance for Leverage Plus. We protect attorney-client communications only to promote this purpose. Here the subject of the e-mails was the fund’s declining business prospects and “ideas about better investments,” not legal advice. The privilege does not apply to Harris’s e-mails on these facts and assumptions. But the multi-factor Restatement test is highly sensitive to the facts. Even small factual variations may make a difference to the analysis.

8. This one you can answer without more facts. It is not sufficient that the communication was made in confidence, if it is not between “privileged parties,” or if it was in the presence of strangers. Toyota’s lawyer is certainly talking to witnesses to assist in a legal proceeding—the lawsuit—but they are strangers to the lawyer-client relationship, and the facts they relay are not facts from a privileged party, like the client. These notes are not protected by the lawyer-client privilege. (This does not mean that they are necessarily discoverable, however. As we will see, they may enjoy some qualified protection as the lawyer’s “work product.”)

To put it another way, the law of evidentiary privilege does not protect allcommunications made in confidence, let alone all private conversations, but only confidential communications that are essential to a relationship that society favors—like the lawyer-client, physician-patient, or priest-penitent relationships. An expectation of confidentiality is a necessary element of most privileges, but it is not sufficient. You may expect confidentiality when you tell your best friend a secret, but your expectation does not protect your secret from discovery

9. Obviously, you would write with a different level of candor if you thought that your memos and e-mails would be seen only by other lawyers in your firm, than if you thought the opposing counsel or world at large would read them. In memos that might be seen by opposing counsel or their clients, you would surely hold back and temper your conclusions. Indeed, you might even withhold sensitive conclusions altogether in favor of oral briefings of your co-counsel and your own client, if work product was routinely discoverable. But then the quality—and certainly the efficiency—of trial preparation would surely suffer.

10. They could themselves ask the witnesses (but recall the ethical traps in informal discovery). Or they could look at the public testimony taken by the Steamboat Inspectors. They could also just ask Fortenbaugh’s client through interrogatories (written questions he must answer under oath) or by deposition. “Full and honest answers to such broad inquiries would necessarily have included all pertinent information gleaned by Fortenbaugh through his interviews with the witnesses,” the Court explains.

11. Sounds like the same stuff, and it is the same facts. But not in the same form. It is the compilation and selection of work product information that is protected, not the underlying facts themselves, as Rule 26(b)(3) now reflects by targeting just “documents and tangible things” prepared in anticipation of litigation. These include diagrams, drawings, photographs, and models, as well as memoranda, audio and video tapes, and correspondence. The difference

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between the facts themselves, and Fortenbaugh’s compilation and selection of the facts, is Fortenbaugh’s value added. His memos ineluctably reflect his mental filtering and sorting of the facts. The work product rule is intended to protect that value added (because the plaintiffs’ lawyers can add their own value), but not the facts themselves.

12. Some courts require that the person invoking work product show that “the documents must have been prepared with a specific claim supported by concrete facts which would likely lead to litigation in mind.”

13. not all work undertaken by lawyers finds protection in the work-product privilege. In some cases, the absence of a specific claim will suggest that the lawyer had not prepared the materials “in anticipation of p. 811litigation.” … We hold only that where, as here, lawyers claim they advised clients regarding the risks of potential litigation, the absence of a specific claim represents just one factor that courts should consider in determining whether the work-product privilege applies.

14. the primary motivation for preparing the putative work product must be to assist in preparing for possible litigation. This motive is shown circumstantially by how the document is labeled (although this is not conclusive), whether a lawyer participated in the preparation (thus, not all client agents are created equal), whether the document comments on litigation, and whether it has an ordinary business purpose. Documents prepared for an ordinary business purpose or to fulfill regulatory requirements therefore do not usually qualify as work product

15A. This one is easy. Although Painter is not a lawyer, he is acting at his lawyer’s request in anticipation of filing a lawsuit. There is no apparent other reason for his preparing the chronology. And he characterizes it as “work product.” An interested party’s contemporaneous characterization, of course, cannot be dispositive, but it may be taken as circumstantial evidence of “anticipation-of-litigation” motivation for preparing the document. The chronology should qualify as work product under any test.

15B. The fact that it might help in preparing for litigation, even after suit has commenced, is not enough to qualify it for work product protection. By definition, anything that might qualify as evidence would also be helpful in preparing for litigation. The touchstone of the protection in many courts is the primary purpose for which the document was prepared. Because this summary is routinely prepared for the business purpose of correcting defects, it should not qualify as work product, even in jurisdictions that do not apply the specific-claim test. In a circuit following the primary purpose approach, the same result would probably obtain even if another purpose of preparing the summary was to help Toyota’s general counsel prepare for litigation, as long as the primary purpose of preparing the summary was still the business purpose.

15C. It is the business of insurance companies to adjust—decide whether and how much to pay—claims made under their policies. Hence, many courts have denied work product protection to initial insurance claims adjuster’s reports because they are prepared primarily to carry out the ordinary business of insurance. But after coverage has been denied, litigation is more clearly imminent because the disappointed claimant has no other recourse against the insurer. A second

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claims adjuster’s report, prepared after denial of coverage, is therefore likely to have been prepared primarily in anticipation of that litigation, and some courts have correspondingly held it to be protected work product under the ad hoc approach or primary purpose approach to defining work product.15D. Most courts have denied work product protection to routine accident reports on the theory that they, too, are prepared primarily for ordinary business purposes of accident prevention, insurance planning, and employee monitoring. Conceding that any aircraft accident presents the contingency of litigation, for example, one court nevertheless concluded that “given the equally reasonable desire of Defendant to improve its aircraft products, to protect future pilots and passengers of its aircraft, to guard against adverse publicity in connection with such aircraft crashes, and to promote its own economic interests by improving its prospect for future contracts for production of such aircraft, it can hardly be said that defendant’s ‘in-house’ report is not prepared in the ordinary course of business.” Of course, litigation is a contingency from the time of an accident, and the reports in question could help in preparing for litigation, but that is not the standard. Remember, however, that just because an accident report will not ordinarily qualify for protection from discovery, it does not follow that it will be admissible as evidence at trial.

15E. When a party is required by regulatory law to prepare a document, the document cannot be said to have been prepared primarily in anticipation of litigation. It was prepared to conduct business in compliance with regulatory law. Absent some claim of privilege, the party should produce it

16. First, the discoverer must show “substantial need for the materials to prepare its case.” Fed. R. Civ. P. 26(b)(3)(A)(ii). Obviously, mere relevancy of the material is not enough, because the rule presupposes that all discoverable material is relevant to a claim or defense. Nor is it sufficient that the discoverer wants to make sure he hasn’t overlooked anything, because that is the showing that the plaintiff in Hickman made unsuccessfully. On the other hand, certainly a showing that the materials were needed to establish or defeat an essential element of a claim or defense should suffice. What does Hickman say about the intermediate need for the materials to impeach or corroborate other evidence? In any case, specificity helps; a motion to compel discovery that is backed by an affidavit that merely alleges a need for the materials “to help prepare … to examine witnesses” is doomed to failure.Second, the discoverer must show that he “cannot, without undue hardship, obtain [the] substantial equivalent [of the work product] by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii). What hardships does Hickman identify as sufficient? How did the plaintiff there fall short? Where the work product consists of statements of witnesses, the “other means” are interviewing the witnesses directly. Thus, if the discoverer can show that the witness is now dead, beyond the court’s reach, hostile, or memory-impaired, courts have often held that he has made the requisite showing of undue hardship.

17. Obviously, the burden of reviewing and then summarizing 750,000 invoices would be substantial, especially for an individual, non-corporate plaintiff like Painter. Of course, all discovery imposes a hardship in the form of the routine costs of searching, reviewing, and often photocopying. Courts are unlikely to find such routine costs to impose an “undue” hardship. But the numbers in this hypothetical suggest a greater than routine cost, and therefore possibly an

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undue hardship on Painter, especially compared to the relatively low cost of the alternative—accessing Toyota’s summaries

18. Recall your reconstruction of Fortenbaugh’s work product and the probable consequences for his future trial preparation of forcing him to disclose it on request. Although he might not reduce the facts—such as witnesses’ names or dates and times—to writing if he thought that they would be disclosed to the other side, such facts are ultimately available to the other side anyway in most cases. His chief reason for wanting to withhold them is not their confidentiality or sensitivity, but his unwillingness to let his opponents have a “free ride” on his work effort. But his opinions and mental impressions are distinguishable from the facts he has collected. He is more likely to feel that they are confidential—for him, and his client, alone—and is therefore less likely to record them in any fashion if he thinks that he might be forced to disclose them. It is arguable, therefore, that the policy concerns animating the work product protection apply with special force to opinion work product, materials that go to the heart of uninhibited trial preparation

19. A.  takes far too narrow a view of who can prepare work product. While Fortenbaugh was a lawyer, and many courts speak of “attorney work product,” the Rule itself speaks of a slew of party “representative[s],” as well as a party himself. Eligibility as a preparer should turn on the function of the Rule—whether he is someone who works on behalf of a party in anticipation of litigation, such that discovery of his work might have the same deleterious consequences as discovery of lawyer work product. Thus, the fact that the railroad’s employee (who could be viewed as an “agent” of the party for this purpose) prepared the report does not disqualify it from consideration as work product.

B is obviously wrong. The time line is “anticipation of litigation or trial,” not that either has actually started.

C is appealing, and there are some cases that rule this way. The railroad gets sued so often after such crossing accidents that it anticipates a suit, as a practical matter. Certainly, sending the report to counsel is partly to help her prepare for the probable (inevitable?) suit, or its sometime antecedent, the demand letter. But in a litigation-prone society, any accident is a possible (probable?) personal injury suit, so this contingency could protect a large number of corporate communications. Some circuits therefore take a narrower view of the protection by protecting just those communications prepared primarily in anticipation of litigation. This report seems to have been prepared both in anticipation of litigation and for a business purpose of fixing bad crossings or identifying negligent engineers, as it is also sent to the senior engineer. There is little to suggest that it was prepared primarily in anticipation of litigation.

D sounds right as far as it goes, but all it tells us is that the report meets the basic presumption of discoverability. If it wasn’t relevant, it would not be discoverable, whether or not it was work product. Plaintiff could use it, but that falls well short of any showing that he has “substantial need” to prove his claim; there are many other sources of evidence, including witnesses, police reports, photographs, diagrams of the scene prepared by plaintiff’s agents, and his own testimony. Finally, just because the report is nonprivileged does not resolve the question of whether it is work product. As Hickman carefully noted, Fortenbaugh’s witness statements were not privileged either, but they were still protected as work product. Actually, it is not altogether

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clear that the report is nonprivileged. The Upjohn analysis raises at least a possibility that the report is a communication of fact by an employee at the direction of corporate superiors to the general counsel for the purpose of obtaining legal advice to the railroad. The distribution of the report to the operating division and maybe its distribution to the insurance division, however, cuts the other way.

E sounds like the flipside of C, but as we suggested, both are partly true. The report was prepared for both purposes. But if one important purpose was conducting the ordinary business of railroads, then the report was probably not prepared “primarily” in anticipation. Furthermore, if the report was prepared in part to satisfy some regulatory requirement, that would further undercut the claim of work product. Thus, if the jurisdiction endorses the primary purpose test, E is a better answer than C.

20. If there were other experts with comparable expertise, the plaintiff wouldn’t need the defendant’s non-testifying expert. He could just hire his own similar expert at his own expense. Getting discovery from defendant’s expert would give the plaintiff a free ride at the defendant’s expense, especially if the plaintiff was not required to pay that expert a fee

21. The Rule does not expressly discuss such experts. You could argue that the omission is intentional and that the Rule exhausts the categories of experts whose work product may be discovered under any circumstances, which is the view expressed by the Advisory Committee. Fed. R. Civ. P. 26(b), advisory committee’s notes to the 1970 amendment (Rule “precludes discovery against experts who were informally consulted in preparation for trial, but not retained or specially employed”). Some have read the omission differently, concluding that the Rule exclusively identifies those experts whose facts and opinions are protected, leaving the rest vulnerable to discovery.

22. Yes. Mr. Gressman did not acquire facts and opinions about the accelerator in anticipation of litigation, but as an ordinary fact witness who participated in the events giving rise to Painter’s product liability claim. That Gressman is also an expert is irrelevant; he must testify about those events like any other witness. Note, incidentally, that we did not answer yes just because Gressman was an employee of Toyota. Corporate parties may often look inside for a testifying expert. As long as such an inside expert testifies to facts known or opinions that she acquires in anticipation of litigation, her employment status does not divest her of the expert work product protection (although it may affect her credibility).

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Chapter 22 Discovery Tools Questions

Notes and Questions: Required initial disclosure 1. When must required initial disclosures be made?

2. The foregoing is just the arithmetic computation. The timing can be complicated by motion practice. In Flores, the defendant had filed a “dispositive motion” (probably a Rule 12(b)(6) motion) and did not want to disclose its insurance agreements before the court ruled on the motion. Why not?

3. Grey box question Which, if any, of the following options are available to a party who, like the defendant in Flores, wants to hold back insurance agreements from its initial disclosures?

A. It could simply withhold the insurance agreements until the court ruled.B. It could ask the plaintiffs to stipulate to delay the required disclosure of the insurance agreements until after the court ruled.C. It had no option: “Required” disclosure means just what it says; the obligation is absolute.D. It could object to the disclosure during a discovery conference with plaintiffs and then state that objection in the resulting proposed discovery plan.E. It could move for a court order postponing this disclosure until after the court ruled on the dispositive motion.

4. What must be initially disclosed?

5. Consider, then, this scenario. DiMento sues Bashad for injuries in a motor vehicle accident. The parties exchange required initial disclosures under Fed. R. Civ. P. 26(a)(1). Bashad’s disclosure of witnesses under Rule 26(a)(1)(A) does not include Patrick, who was present at the time of the accident. Patrick told Bashad’s lawyer that Bashad ran a red light before he hit DiMento.Later DiMento’s lawyer learns from his own investigation that Patrick witnessed the accident. Which, if any, of the following is correct?

A. DiMento should seek sanctions for Bashad’s violation of Rule 26(a)(1)(A)B. .Bashad should now send a supplementary disclosure to DiMento, providing Patrick’s name and address as required by Rule 26(a)(1)(A).C. Bashad is not subject to sanctions, because, while he violated his disclosure obligations under Rule 26(a)(1)(A), DiMento learned about Patrick before trial.D. After required initial disclosures, DiMento’s lawyer should send Bashad an interrogatory asking for the names of all witnesses to the accident.

Notes and Questions: Interrogatories 6. The procedure is simple. The lawyer seeking discovery prepares and serves a party with up to twenty-five written questions. (Interrogatories are not available against non-parties.) Although any good set of interrogatories should be tailored to the case, the lawyer may adapt so-called pattern interrogatories that are tailored to particular kinds of claims and that are published in form books. Interrogatories No. 29 and 37, for example, were drawn from 8A Am. Jur. Pleading

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& Prac. Forms Annot. § 433 (database updated 2016). The responding party must then answer or object within thirty days. Answers are made in writing under oath by the party, who signs them; objections are made in writing by the party’s lawyer. But the lawyer must also sign a discovery response pursuant to Rule 26(g) (discovery’s analog to Rule 11), certifying that she has made a “reasonable inquiry” before submitting the response. (The same is true for discovery requests.) In practice, it is usually the party’s lawyer who prepares the answers to interrogatories.

What does this procedure, especially the lawyer’s preparation of answers, suggest about the pros and cons of discovery by interrogatory?

Questions 7-8. Taken from example in book on page 832

29. Identify each standard, code, regulation, or manual which was consulted in the development and manufacture or design of the Camry

.Answer: The answer to Interrogatory No. 29 may be derived or ascertained from the business records of the defendant located at Reference Library, Rm. 311, Toyota Co., 3rd St. NW, Torrance, California 34511, and the burden of deriving or ascertaining the answer is substantially the same for the plaintiff as for the defendant. These records may be examined and copied at a reasonable time at this location

7. Will Mildred Chevron be able to answer Interrogatory No. 29 from her personal knowledge? If not, can she answer, truthfully, that she doesn’t know?

8. Planning and conducting the inquiry needed to answer interrogatories for a major corporation is no small task. But the Rule offers at least one problematic form of relief. If the answers to Interrogatory No. 29 can be found in Toyota’s business records, and the burden of searching them is no greater for Painter than for Toyota, then it may make them available to Painter in lieu of answering. Fed. R. Civ. P. 33(d). Why is this option problematic?

9. Interrogatory No. 6 may require Toyota to identify numerous employees, even though few, if any, production-line employees would have information useful to the case and even though many of these employees first became involved long after the model year involved in Painter’s accident. Toyota has asserted a relevancy objection, but such persons are arguably “relevant to the claim” in Painter’s complaint. The real objection is simply to the burden of such unrestricted discovery. This interrogatory evidences that individual interrogatories, like the collective set, can be burdensome and oppressive. How can a court respond to this objection if it agrees that the interrogatory, as written, is burdensome and oppressive?

10. Example from book pg. 832

114 and 115. What is wrong with these interrogatories, if anything? Hint: What would you need to do in order to answer Interrogatory No. 114?

114. Is assumption of the risk a defense in Old Jersey?

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Answer: Defendant objects to Interrogatory No. 114 on the grounds that it calls for a conclusion or opinion on the law unrelated to the facts of this case or an application of the law to those facts115. Do you contend that the plaintiff assumed the risk of the accident described in his complaint ¶¶ 12–14?Answer: Yes.

11. Painter attempts to impose a duty of supplementation on Toyota by his preamble. Has Painter accurately described the duty of supplementation imposed by Rule 26(e)?

Notes and Questions: Requests for the production of documents 12. Grey box question Suppose Toyota has made an extensive study of the precise defect that it believed caused Painter’s accident, in which its accountants concluded that it was less costly to pay occasional damages for resulting accidents than to fix it.

This is obviously a smoking gun. (Or what amounts to the same thing—it can be made to look that way to a jury.) Toyota would hope never to have to produce it. Which, if any, of the following options is open to it?

A. Hiding the study from discovery by giving it to its lawyer.B. Shredding the study, as long as Painter has not yet asked for it.C. Placing the study in a thick folder marked “Ashtray Specifications” in the middle of twenty-two file cabinets of Camry files and then making those files available to Painter’s lawyer.D. Silently withholding the study, if Toyota’s lawyer concludes that it qualifies as work product.E. Silently withholding the study, if Painter has asked for all documents related to design or manufacture of this product defect, on the theory that the study does not directly relate to design or manufacture of the defect.

Notes and Questions E- discovery – most of these questions have to do with the case before13. Who pays? The default principle is that the responding party pays for its own costs of production. But not only is this principle nowhere stated as such in the rules, it is not ironclad either. Even the costs of responding to a paper document request could be so enormous as to justify a departure from the principle by shifting all or part of the cost to the discovering party, or simply limiting the discovery to reduce the cost. What rule gave the Zubulake I court the authority to allocate costs in this fashion?

14. A Catch-22? But this seems to put plaintiffs in a Catch-22: They have to show the likely importance of costly e-discovery in order to get the e-discovery. How did the court deal with this dilemma?

15. Rule 26(b)(2)(B) now provides express authority for limitations on electronic data. How would it have applied to the discovery dispute in Zubulake I?

16. Although we fear that our e-mails are stored somewhere forever, in fact e-data is often ephemeral. For example, Zubulake I tells us that UBS Warburg kept its backup tapes only for limited periods, then recycled them. Moreover, UBs’s periodic “snapshot” backups necessarily

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also involved loss of certain e-mails that were deleted between backups. They would be only recoverable until the computer writes over the “deleted” data. See Zubulake I, 217 F.R.D. at 313. What obligation does a party (or prospective party) have to retain such data for litigation purposes, and what is the corresponding duty of its lawyer?

Notes and Questions: Depositions

17. Serving a notice of the time and place of a deposition on a non-institutional party-deponent, with copies to the other parties to the action, is normally sufficient to secure that party’s deposition. This is often called “noticing” a deposition. The notice must specify the method of recording the deposition; although most depositions are still recorded stenographically, audio and video taping are expressly permitted under the Rules and are gaining in popularity. See Fed. R. Civ. P. 30(b)(3). Usually, the deposition of a party-deponent is held in the discoverer’s offices within the district where the civil action is pending or at a place agreed to by the parties. See Fed. R. Civ. P. 29 (authorizing party stipulations regarding discovery procedure).

Why isn’t a simple notice of deposition sufficient to compel a non-party like Harvey Gannick to attend?

18. Deposing the corporate or institutional witness. Suppose you did not know who, within Toyota, to depose. Could you just depose Toyota Co.? How?

Notes and Questions: Mental and Physical Examinations 19-20 focus on SACRAMONA v. BRIDGESTONE/FIRESTONE, INC19. Method for obtaining. How did defendants go about seeking a blood test of the plaintiff?

20A. What physical or mental conditions are in controversy in Sacramona?

20B. Since Sacramona is suing for future damages, has he not placed his life expectancy in controversy? After all, the fact-finder will need to factor in the number of years Sacramona is expected to live in calculating future damages, whether these damages are for future pain and suffering, physical impairment, or lost earning capacity.

20C. Suppose the court had found Sacramona’s condition in controversy for purposes of the requested examination. Must it then order the requested examination?

21. Go back to Painter v. Toyota Co. Could Toyota obtain a mental examination of Painter?

22. Suppose Painter seeks to recover for his loss of consortium in his complaint against Toyota. May Toyota obtain an order for a physical examination of his wife, on these facts?

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Chapter 22 Answers

1. Even from a strictly mechanical perspective, this proves to be no easy question. Rule 26(f) requires the parties to meet and confer (imaginatively called a “meet-and-confer”) to discuss a discovery plan at least twenty-one days before a scheduling conference is held or a scheduling order is due under Rule 16(b). That order is due within ninety days after any defendant has been served with the complaint or sixty days after any defendant has appeared. Fed. R. Civ. P. 16(b). The disclosures are due within fourteen days after the meet-and-confer by the parties under Rule 26(f), unless a party asserts that required initial disclosures are inappropriate in the circumstances of the case.

2. It seems unlikely that the defendant was troubled by the burden of disclosing the insurance agreements. Even forty years of insurance coverage was unlikely to involve more than a few policies. But the reference to a “confidentiality agreement to protect them” suggests that the defendant was anxious to avoid producing them, if it could. One reason might be the very reason that they are ordinarily subject to required initial disclosure: They reveal coverage limits that suggest a settlement range to plaintiffs. They may also be evidence of ownership or control of environmentally sensitive lands (the defendant is a copper company). If the court grants the “dispositive motion” and dismisses the case, the defendant avoids the risk of disclosing that information.

3. A is not an authorized option under the Rules. Rule 26(a)(1)(C) states that a party “must make the initial disclosures” within the time it provides, “unless” one of the delay buttons it lists is pushed. This seems to foreclose self-help by flat-out non-disclosure.

B is an authorized delay button: obtaining a stipulation from the other party. See Rule 26(a)(1)(C). In fact, the parties in Flores had stipulated to delay the first three categories of initial disclosure. They just could not agree on delaying the fourth category—insurance agreements. In other words, the defendant tried this option, but the plaintiffs refused. It takes two to tango—or stipulate.

C is obviously incorrect because of Rule 26(a)(1)(C)’s “unless” clause: the delay buttons. Pushing those buttons delays required disclosures. But Rule 26(a)(1)(A) seems to qualify the required disclosure even apart from delay, by providing an exception if “otherwise … ordered by the court.” So “required” doesn’t mean just what it says; it has unstated exceptions plus delay buttons for timing.

D is expressly authorized by Rule 26(a)(1)(C). The parties in Flores may have had a discovery conference; they can be, and usually are, held by telephone. Very likely, in such a telephone conference, the parties stipulated to delay disclosures of the first three categories of initial disclosures, but the plaintiff refused to stipulate to delay the defendant’s disclosure of the insurance agreements. However, the Rule requires not just an objection; the objection must be stated in the proposed discovery plan. When it is, the court will then rule on the objection and “must set the time for disclosure.” Apparently, the parties had not yet proposed a discovery plan in Flores.

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E is also correct, because Rule 26(a)(1)(C) makes “a court order” an alternative to a ruling on an objection in the discovery plan described in answer D. This alternative seems to be the one eventually pursued in the case.In short, the Rules suggest three, not just two, “delay buttons.” Answers B, D, and E are all correct.

4. The Rule does not require disclosure of all evidence relevant to any party’s claim or defense, which is the general standard of relevancy for discovery. See Rule 26(b)(1). The scope of required initial disclosures is narrower: just “information that the disclosing party may use to support its claims or defenses” (emphasis added).

5. A is wrong because Bashad did not violate the Rule. He is required only to make initial disclosures of witnesses with information that he may use to support his defense. Patrick would testify against Bashad, so Bashad would not use Patrick as a witness to support his defense

.For the same reason, both B and C are wrong. Unless he has been subject to discretionary discovery demands, Bashad only has to supplement or correct disclosures he was required to make under Rule 26(a). He was not required to disclose Patrick’s name under Rule 26(a)(1)(A), and he still is not. He is protected from sanctions because he did not violate the required initial disclosure rule, not because DiMento’s lawyer learned about Patrick before trial.

All of these answers suggest that even after required initial disclosures by Bashad, DiMento’s lawyer should still serve interrogatories asking for the names of witnesses, because then Bashad would be required to disclose the names of those with information DiMento could use to support her claims, and not just names of those with information Bashad would use to support his defense. D is correct.

6. It makes interrogatories a relatively inexpensive tool for discovery compared to depositions, but it also makes them less effective because answers drafted by a lawyer are usually as bare and unhelpful as the lawyer can make them without running afoul of Rule 26(g)’s certification requirement.

7. Ms. Chevron—who is signing the answers for Toyota Co.—probably has no personal knowledge of all of the information sought by this interrogatory, especially if the Camry was designed before she joined Toyota. Indeed, there may be no present employee of Toyota who can answer all the interrogatories from personal knowledge. No matter. The duty imposed on Toyota, as a corporation, by Rule 33(b)(1)(B) is to “furnish such information as is available to the party” (emphasis added). Toyota has available to it not only the information known to its employees, but also to its agents, including its lawyers.

This is one reason why the discoverer can access facts contained in work product documents by directing interrogatories to the corporate party on whose behalf those documents were prepared (e.g., to Fortenbaugh’s client in Hickman). That party must answer on the basis of all information available to it, including any available to it from the work effort of its lawyer. Toyota must therefore conduct a reasonable inquiry to answer the interrogatories, which may

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include interviewing employees and reviewing documents. And then it must certify that it has done so, by signing the answers. See Fed. R. Civ. P. 26(g)(1).

8. Practically speaking, Toyota would not want Painter’s lawyer rummaging through its files. For one thing, it could be concerned that privileged materials or trade secrets may be found among them. If they were not identified and withheld under objection beforehand, the opposing party may see them. See Rule 26(b)(5) (restricting their use, however). Toyota is therefore unlikely to make its actual design or customer complaint files available to Painter instead of assuming the burden of deriving the answers itself after searching and inventorying those files. Of course, if Toyota knows that they contain no privileged communications or trade secrets, it might exercise this option to shift the search costs to Painter.

9. The qualifier, “as written,” suggests the answer. While the Rules do not expressly make burden an objection, they do make undue burden or expense a basis for an order limiting such discovery (Fed. R. Civ. P. 26(b)(2)(C)(i)) & 26(c)(1)) and it is widely recognized as a valid objection to discovery requests. In this case, if Painter moves to compel answers from Toyota in response to its objection, the court could deal with the objection by exempting production-line employees or limiting the relevant time period for the identification, effectively rewriting the interrogatory by narrowing it. Of course, ideally, the parties should do this themselves in the “meet-and-confer” required by Rule 26(f).

10. Rule 33(a)(2) states that an interrogatory is not objectionable just because it asks for “an opinion or contention that relates to fact or the application of law to fact.” Such “contention interrogatories” are needed to ascertain how a party will contend that the law applies to the facts come trial. Of course, a party may not know what it contends until it has taken appropriate discovery. The Rule therefore allows the court to postpone the time for answering contention interrogatories until such discovery has been completed. Fed. R. Civ. P. 33(a)(2). By negative implication, on the other hand, an interrogatory that calls for a pure legal conclusion or opinion, not applied to the facts of the case, is objectionable. The asking party can answer it as readily as the responding party, by looking in the library.

Interrogatory No. 114 is therefore objectionable for seeking a pure legal conclusion. You would have to go to the law library to prepare a response and it “would necessarily amount to [a] free-form legal essay[] … [bearing] no necessary relation to the facts of [the] case.” Kendrick v. Sullivan, 125 F.R.D. 1, 3 (D.D.C. 1989). Interrogatory No. 115, on the other hand, is not objectionable; the subtle difference is that it asks for a contention regarding the application of the assumption of risk defense to this case. You don’t have to hit the library to answer this one; you have to decide how you are contending that the law applies to the facts of your particular case. A negative answer will help narrow the issues for trial.

11. No. He overstates it. Rule 26(e) does require Toyota to supplement its answers, but only with information that makes its answer materially incomplete or incorrect, if that information has not already otherwise been made known to the other parties. If the information comes out during a deposition of which all parties have notice, the Rule does not literally require any further supplementation. And the discovering party’s instructions cannot impose obligations inconsistent with the Rules.

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Of course, in this as in so many other discovery matters, what the Rules require at a minimum, and what is best practice, may be two different things. Many lawyers will therefore supplement answers that have been rendered incomplete or incorrect by such testimony, if for no other reason than to preclude any colorable claim that they or their client tried to mislead the other parties.

12. The short answer is that none of these are proper options.

A won’t work, because the Rule gives a clear answer: It targets documents and things “in the responding party’s possession, custody, or control.” Fed. R. Civ. P. 34(a)(1) (emphasis added). Any document held for Toyota by its lawyer is in its control; agents like lawyers, accountants, and banks must follow the instructions of their principals regarding documents entrusted to them. Thus, Toyota still controls the disposition of documents given to its lawyers. Furthermore, by signing its response to the document request, through a representative, Toyota certifies that it made “reasonable inquiry.” Fed. R. Civ. P. 26(g)(1). It must conduct a search of its employees and agents, including its lawyers, for responsive documents. Merely handing off a discoverable document to your lawyer will not shield it from discovery.

Intuitively, you know that Toyota cannot destroy the smoking gun either, so B must be wrong. In the first place, it would violate the spirit, if not the letter, of the Rule 26(g) certification. In addition, it would run afoul of the rule that a lawyer shall not “unlawfully alter, destroy or conceal a document or material having potential evidentiary value” or “assist another person to do any such act.” ABA Rules of Professional Conduct 3.4(a). Furthermore, evidentiary rules against spoliation (a fancy way of describing the intentional or sometimes grossly negligent destruction of discoverable information) may lead to sanctions against Toyota, and under some circumstances, document destruction could even be a crime.

C is also wrong. A bar committee dryly noted in 1977 that “[i]t is apparently not rare for parties deliberately to mix critical documents with others in hopes of obscuring significance.” Report of the Special Committee for the Study of Discovery Abuse, Section of Litigation of the American Bar Association 22 (1977). The Rule was therefore amended to require the producing party to produce documents “as they are kept in the usual course of business” or to “organize and label them to correspond to the categories in the request.” Fed. R. Civ. P. 34(b). (“Ashtray Specifications,” indeed. Why not stick it in the “naugahyde trim” folder? Give us a break.)

D sounds more plausible at first glance, but poses two problems. First, is the study work product? Recall from Chapter 21 that in some circuits, work product must have been prepared primarily in anticipation of litigation and not just for an ordinary business purpose. We need more facts to ascertain whether the study meets this standard. Second, even if it does, work product is an objection that you must “expressly” make, describing the study in such a manner that, without revealing the protected information, will enable your adversaries to assess the claim. Fed. R. Civ. P. 26(b)(5). If Toyota only makes a “silent objection,” Painter would erroneously assume that Toyota had no documents responsive to his request and would therefore never test Toyota’s “objection” by a motion to compel discovery, which is the device by which Painter would put the issue to the trial judge or magistrate. Only by expressly making an

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objection does a party afford opposing parties and, ultimately, the court the chance to assess the objection. There is no “silent objection” under the federal discovery rules. Toyota’s duty under the Rules is reinforced by the ethics prohibition against “knowingly disobey[ing] an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.” ABA Model Rules of Professional Conduct 3.4(c) (emphasis added).

This leaves E. Except for required disclosures and supplemental information pursuant to Rule 26(e), no party is obliged to give information to other parties if they have not asked for it. The trick is to fairly construe their discovery requests. If this study was prepared after the design or manufacture of the Camry, some might argue that it does not relate to the design or manufacture of, only to the driving and claim experience associated with, the Camry in question. On the other hand, others would argue that because the study considered the costs of fixing a manufacturing defect, it was within the scope of Painter’s discovery request. This, ultimately, is more a question of lawyering than of the rules. There is a substantial risk that the study will surface anyway (companies often make multiple copies that are distributed to many employees). If the cost study does surface, Painter’s lawyer will argue to the jury that Toyota tried to hide the study, which may hurt Toyota more than the study itself. Thus, the safe thing to do may well be to construe the request to include the study, quite apart from Rule 26(g)(1)’s certification that a disclosure is “complete and correct as of the time it is made.”

In short, this multiple choice question seems to be an instance of the old discovery adage, “If all else fails, do the right thing.” If the study is responsive to the discovery request, relevant to the claim or defense of any party, reasonably calculated to lead to the discovery of admissible evidence, and in Toyota’s possession, custody, or control, you must produce it.

13. Even before the 2006 amendments, Rule 26(b) (now Rule 26(b)(1)]) set out a cost-benefit formula that the court could use for these purposes. The Zubulake I court, like the Rowe court before it (which it cites), took this formula as a point of departure for considering cost shifting in e-discovery disputes. It places a burden both on the discovering party to show why it needs the discovery in light of issues in and needs of the case, and on the responding party to show the likely expense.

14. It found that requiring Zubulake to prove that the e-discovery she sought would hit paydirt was inconsistent with the lenient federal presumption of discovery and the relevancy standard. Instead, it limited the discovery that UBS Warburg had to provide in the first instance to a sample of just five tapes, which would then supply the parties and the court with a basis for deciding whether more e-discovery (and more cost) would be likely to turn up relevant evidence. Of course, its decision was made easier here by the fact that Zubulake had already found one smoking gun e-mail, urging that she be fired “ASAP” after her EEOC complaint in order to deprive her of year-end bonuses! See footnote 8 in the opinion. Where there’s smoke, there’s fire. She also had retained 450 relevant e-mails from work suggesting strongly that there would be more such e-mails on the backup tapes.

15. The Rule was practically written for this case. It excuses a party from providing e-discovery “from sources that the party identifies as not reasonably accessible because of undue burden or cost.” UBS Warburg would therefore have the burden to show the undue cost of accessing the

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backup tapes. Even if it made that showing, Zubulake could still try to show good cause for going forward anyway, and the court is authorized to use a cost-benefit analysis to “specify conditions for the discovery.” Rule 26(c)(1)(B) also now expressly authorizes the court to order the allocation of expenses. In sum, Zubulake I would likely come out the same way today.

16. In Zubulake IV, 220 F.R.D. 212, 218 (S.D.N.Y. 2003), Judge Scheindlin answered by asserting that:

Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company’s policy. On the other hand, if backup tapes are accessible (i.e., actively used for information retrieval), then such tapes would likely be subject to the litigation hold.

In Zubulake V, 229 F.R.D. 422, 432 (S.D.N.Y. 2004), she added that:

A party’s discovery obligations do not end with the implementation of a “litigation hold”—to the contrary, that’s only the beginning. Counsel must oversee compliance with the litigation hold, monitoring the party’s efforts to retain and produce the relevant documents.… A lawyer cannot be obliged to monitor her client like a parent watching a child. At some point, the client must bear responsibility for a failure to preserve. At the same time, counsel is more conscious of the contours of the preservation obligation; a party cannot reasonably be trusted to receive the “litigation hold” instruction once and to fully comply with it without the active supervision of counsel.

In short, e-discovery may impose a continuing duty on the client and her lawyer alike to locate and preserve e-data.

17. Unlike a party who was served with a summons at the outset of the case, a non-party is not within the personal jurisdiction of a court or subject to its discovery rules until and unless that non-party is served with process. Painter’s lawyer therefore had Gannick served with a subpoena, and, because he also wanted Gannick to bring documents with him to the deposition, a subpoena duces tecum. This is a document that orders the deponent to bring documents with him (think of it as a subpoena “take ‘em”). Rule 45 authorizes the court where the action is pending to issue a subpoena and permits nationwide service. Fed. R. Civ. P. 45(a)(2) & (b)(2). But the subpoena can only command compliance within 100 miles of where (or, if the person is a party or party’s officer, in the state where) the deponent resides, is employed, or regularly transacts business in person. Id. 45(c). A person objecting to a subpoena can seek relief in the court for the district where compliance is sought. Id. 45(d). In state court actions, depositions of non-resident non-parties must often be taken under the rules of the deponent’s home state and then used by rule or reciprocity agreement in the state where the action is pending.

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18. Institutional parties may be deposed. You should send a notice to Toyota Co.’s lawyer describing the matters on which examination is requested. Toyota must then designate a deponent knowledgeable about those matters to testify on its behalf. See Fed. R. Civ. P. 30(b)(6).

Notes and Questions: Physical and Mental Examinations 19. Absent his consent, this method of discretionary discovery requires a motion asking the court to order the examination. The movant must show that the condition of the plaintiff is in controversy and that good cause exists for the requested examination. The court may then enter an order specifying the scope of the examination. Usually, at least when the plaintiff sues to recover for physical injuries, the parties will enter into a stipulation for the necessary examination without going to court. Sacramona, however, balked.

20A. In exploding tire cases, eye injuries are common, but it is also possible that the plaintiff sustained other injuries to his upper body. Whether they are in controversy depends upon whether he pleaded them in his complaint or whether the movant has shown them to be in controversy. The Supreme Court has said that the merely conclusory allegations of the Rule 35 movant’s pleadings are not necessarily sufficient. Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964). It added that this does not mean that the movant has to prove its case to obtain the order, but it may need to show by affidavit or other materials that the condition is in controversy when the party to be examined has not already admitted it in its pleadings.

20B. It is true that any claim for future damages in the form of lost wages implicates the claimant’s life expectancy. Obviously, the longer he will live, the greater the number of wage-earning years, the greater the likelihood of wage increases, and therefore the greater the damages. But if this is enough to warrant compulsory blood tests in a search for life-threatening ailments, every claimant who seeks future damages would be subject to such testing .

In fact, why stop there? Why not order a complete physical—a battery of tests, including genetic testing—to see if there are any other ailments, physical defects, or health risks that might affect life expectancy? Or even a mental test, on the possibility that if the claimant goes nuts, his earning capacity will be reduced? It would be the proverbial “fishing expedition,” but in Hickman v. Taylor the Supreme Court celebrated the federal discovery rules by stating that “[n]o longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into facts underlying his opponent’s case.” 329 U.S. 495, 507 (1949). The answer is presumably that this particular form of discovery is “extraordinary,” as the court says in Sacramona, because it is more invasive and destructive of personal privacy than all the others. This is why it is the only form of discovery that requires a court order. It is also a reason for the court to read “condition in controversy” narrowly to mean only a condition for which plaintiff seeks a recovery. In fact, Rule 35’s condition-in-controversy requirement is really nothing more than a narrower substitute for Rule 26(b)(1)’s general relevant-to-the-claim-or-defense scope of discovery.

20C. No. The defendants still must show “good cause.” Neither the Rule nor the court explains how this requirement is much different from the “in-controversy” requirement, but it gives this court another basis for denying the examinations. In the cases where the courts found good cause for disclosure of blood tests, the tests had already been performed; there was no need for a

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further blood test. Arguably, the invasion of privacy—and hence the need for “cause”—is greater when the data would first be created by a court-imposed blood test.

Furthermore, even with good cause, defendant faces a final hurdle. Sacramona has kicked up enough of a fuss about the privacy burden of the requested test to invoke the cost-benefit rule of what is now Rule 26(b)(1). Here the court finds that this burden outweighs the likely benefit (speculative as it is), given the needs of the case (defendant can still go after other damages data, such as employability and promotability), the importance of the issues (just an element of damages and not part of liability), and the importance of the test in resolving the issues (it disposes neither of liability nor even of damages, but goes only to their size, in some degree).

21. Presumably not, if his complaint only seeks damages for his physical injuries. On the other hand, if he includes a claim for emotional distress, he arguably places his mental condition in controversy.

22. Probably not. In the first place, it is more than doubtful that his pleading puts his wife’s condition in controversy. In addition, it is arguable that she is not a party or “a person in the custody or legal control of a party,” although this is unclear. See Wright & Miller § 2233 (stating that “it would seem” that wife is under legal control of husband when he sues to recover for her injuries).*3 Of course, if the wife joined in the suit seeking recovery for her own loss of consortium or pain and suffering, then her claim could well place her condition in controversy.

Rule 35 examinations are not available against mere witnesses outside the custody or control of parties. Minor children may fall in this permissible category when their parents are parties and the condition, or blood type, of the child is in controversy, as it might be, for example, in a paternity suit.

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