Goals

1
Goals

• Understand how R26 operates generally with
  respect to experts.
• Understand the difference between consulting and
  testifying experts, and when discovery of facts
  known or opinions held by consulting experts is
  discoverable.
• If time, understand the sanctions aspect of R27.

2
Obtaining Info of Consulting Experts

• 26(b)(4)(B) A party may, through
  interrogatories or by deposition, discover facts
  known or opinions held by an expert who 1 has
  been retained or specially employed by another
  party 2 in anticipation of litigation or
  preparation for trial and 3 who is not expected
  to be called as a witness at trial only a as
  provided in Rule 35(b) or b 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.

3
Practical Impact of this Rule

• If a party hires an expert and gets good opinions
  or data, they (likely) will use it so, the rules
  basically result in letting parties hide bad
  opinions by not designating the expert to testify.

• Why do we do that?
• What would be the cost of the opposite approach
  all opinions are discoverable?

4
Problem 2 p. 447

• 2(a)(1) to (4)
• 2(b)
• 2(c)

5
Thompson (447)

• Facts?
• What discovery did defendant seek? How did
  plaintiff try to stop it?
• Why was the report discoverable?
• Change the facts to make it non-discoverable
  under 26(b)(4).
• Do you think Dr. Lucas was hired specially in
  anticipation of litigation?

• What if Dr. Lucas was not a 26(b)(4) witness?
• If defendant moved for mental exam under 35(a),
  would he get it?
• Note 35(a) requires both in controversy and good
  cause.
• If the plaintiff doesnt ask for the copy of that
  report, would defendant get a copy of the report
  prepared by Dr. Lucas?
• If the plaintiff does ask for a copy, would the
  defendant then get Dr. Lucas report?
• If the plaintiff asks for a copy, what happens to
  any physician-patient privilege?

6
Chiquita (448)

• Facts?
• Whose motion is involved?
• Why was he an expert and not a fact witness?
• If he had been a fact witness, would there be any
  argument about discoverability?
• Why does court find no exceptional
  circumstances?
• Change the facts to make the outcome different.

• Note, again, that just because facts are conveyed
  to an expert, they do not become undiscoverable
  information does not become exempt from
  discovery merely because it is conveyed to a
  non-testifying expert. Thus, while the file may
  contain Mr. Winers recorded observations and
  opinions which need not be disclosed, it may also
  include discoverable information provided to Mr.
  Winer by others. Such documents shall be
  produced.

7
Note Slides 8 to 15are to help you understand
the rules. We wont go over them in class

• Note the rules that matter
• 30(d) 30(g) 33(b)(5)
• 34(b) (last sentence of 1st paragraph)
• 36(a) (last sentence of 1st paragraph 2d
  paragraph)
• FRCP 26(g) 37

8
Certificates of Conference

• In almost every instance, the rules require you
  to try to work out disagreements before motions
  to compel, motions for protection, or sanctions
  can be sought.

9
26(f) Conference

• 26(f) requires all parties to jointly act in good
  faith to agree on a discovery plan.

• 37(g) Sanctions can be awarded if the party
  fails to participate in good faith in developing
  the discovery plan.

10
Automatic Disclosures

• 37(a)(2) party may move to compel full
  disclosure.
• Rule implicated where party refuses to disclose
  info.
• 37(c)(1) if failure to disclose is made w/out
  substantial justification, exclude evidence
  unless harmless, or some other sanction.
• Rule implicated where party later produces
  something that they should have done earlier.

• 26(g)(1) signature certifies its complete and
  correct.

11

• Serving Discovery
• Your signature certifies discovery is in good
  faith. 26(g)(2)
• Sanctions available. 26(g)(3)
• Responding to Discovery
• Signature certifies responses/objections are in
  good faith. 26(g)
• If party fails to answer interrogs, show for
  depo, or respond to RFPs, sanctions. 37(d).
• If youre served harassing discovery, you move
  for a protective order if the other side wont
  agree to withdraw it or limit it, or let them
  move to compel to get it. 26(c) (b)(2). See
  Stalnaker. Whoever wins the motion might get
  fees under 37(a)(4). Done either in court w/suit
  or where depo is.
• Compelling Discovery 37(a)
• If other party wont give you discovery you
  believe you need, you move to compel in court
  where suit is. Whoever wins the motion must get
  fees if its a split decision, court may give
  fees. 37(a)(4)

12
Special Rules Oral Depos

• If party no-shows, sanctions. 37(d).
• Objections have to be concise. No coaching.
  30(d)(1).
• Instructions not to answer only for privilege or
  to file 30(d)(4) motion for protective order.
  See 37(a)(2) (deposing party can adjourn or
  complete the depo before seeking to compel
  answer).
• If court finds examination was frustrated,
  sanctions. 30(D)(3). Court can give more time,
  30(d)(2) and sanctions.

• Questions cant be annoying. 30(d)(4).
• If so, party can ask court where suit is, or depo
  is, for 26(c) protection. 37(a)(4) expenses.
• Questioner fails to show up 30(g)(1)
• Questioner fails to subpoena witness, who no
  shows, 30(g)(2)

13
Special Sanction - RFAs

• If a party refuses to admit a fact which is later
  established, the party who asked for the
  admission can move for sanctions. 37(d).

• Under 37(c)(2), the court can award the costs for
  proving what the party should have admitted,
  unless the court finds (A)-(D).

14
Duty to Supplement 26(e)

• Automatic Disclosures
• 26(e)(1) appropriate intervals
• Factual Disclosures
• Experts
• RFAs, RFPs, Interrogs
• 26(e)(2) seasonably

• 37(c)(1) if party fails w/out substantial
  justification to supplement, cant use evidence
  unless harmless. Other sanctions possible.

15
Violating Prior Order 37(b)

• 37(b) applies only when there is an order
  previously issued by the court -- that is being
  violated.
• E.g., if your opponent fails to respond to an
  interrog, you dont move under 37(b) first you
  get an order requiring it to answer. If it
  doesnt, then file under 37(b).

• If a deponent refuses to answer despite being
  ordered during depo conducted outside the
  district where suit is pending, see 37(b)(1).
• If a party has violated an order, see 37(b)(2).

16
Problems 453

• 1(a)? (b)?
• 2
• 3
• 4
• 5
• 6

17
Determining Propriety of Request Meet Confer
Obligations

• Thompson (455)
• What led to suit being filed?
• What language in which rule were the parties
  fixated on?
• Does the courts approach mean that the effort we
  saw to narrow discovery (from subject matter to
  claim or defense) is a failure?
• What did the court suggest?
• What does this mean parties must do in their meet
  confer?

18
Whether If So How Much to Sanction Poole (457)

• When can a court which grants a rule 37 motion
  not award expenses, including fees?
• (1)
• (2)
• (3)
• How much must it award?

• When can a court which finds a violation of Rule
  26(g)(3) not award a sanction?
• What must a party do to avoid violating 26(g)(3)?
• How much must (may?) it award?

19
Substantial Justification

• What did Textron do wrong on its answers to RFAs?
• What options does 36 give you?

• What did Textron do wrong in responding to RFPs?
• How do courts decide what is reasonable inquiry?

20
What does this mean for you?

• Character is what you are in the dark.