WHERE WE ARE & WHAT WE’RE DOING

Pleading Pre-trial

Discovery Resolution without Trial

Trial & Post-trial Appeal

DISCOVERYScope & Limits 26(b)(1) General

Not privileged Relevant to

Claim/defense Subject matter

26(b)(2) Court discretion to limit Individual case Local rule - #requests to admit

26(b)(3) & (4) Exceptions Trial Preparation Materials Experts

F.R.Civ. P.Advisory Committee Notes

“Legislative history” What drafters thought they were doing

WORK PRODUCTHickman v. Taylor, p. 525

Reviewability How did Hickman reach appellate

court? What type of orders appealable? What was order appealed from here? Why appealable?

WORK PRODUCTHickman v. Taylor

Discovery requests Device Information sought Relevant? Privileged?

WORK PRODUCTHickman v. Taylor

Policy concerns

WORK PRODUCTHickman v. Taylor Interrogatories

List names/addresses of any W’s to sinking ship

Facts Discoverable

List any such W’s you have interviewed Strategy/mental impressions? Not discoverable?

Describe statement of each W Lawyer’s mental impressions Not discoverable

WORK PRODUCTHickman v. Taylor Hypothetical

Fortenbaugh interviewed W W says “I saw several loose hull plates on ship just

before it sank”

Frame a discovery request Existence of W Hull plates loose

DISCOVERYFR 26(b)(3) Trial Prep Materials Party may obtain discovery of

documents and

tangible things otherwise discoverable under . . . (b)(1) . . .

and prepared in anticipation of litigation

or for trial by or for another party

or by or for that other party’s representative . . .

DISCOVERYFR 26(b)(3) Trial Prep Materials Only upon a showing that

the party seeking discovery has substantial need

of the materials in the preparation of the party’s case

and that the party is unable without undue hardship to obtain the substantial equivalent

of the materials by other means

DISCOVERYFR 26(b)(3) Trial Prep Materials In ordering discovery

of such materials when the required showing has been made

the court shall guard against disclosure of

the mental impressions conclusions opinions

or legal theories

of an attorney or

other representative concerning the litigation

DISCOVERYFR 26(b)(3) Trial Prep Materials

Advisory Committee Proposal to delete FR 26(b)(3)

Abolish protection for “work product”

TAKEAWAYS

Black Letter Law

FR 26(b) (3) Exception to broad scope of discovery Largely codifies Hickman v. Taylor Protects

Trial preparation materials Not facts

“Conditional” privilege Overcome by showing of need

TAKEAWAYS

Big theme Tension between

Duty to court Adversarial role