Some Controversial Propositions

1
Some Controversial Propositions
2
Agree or Disagree?
The availability of broad discovery significantly
infringes on the parties liberty, privacy, and
property rights?
3
Agree or Disagree?
The availability of broad discovery significantly
increases the likelihood that factual issues will
be resolved accurately?
4
Agree or Disagree?
The availability of broad discovery makes it
easier for the parties to narrow the issues for
trial?
5
Agree or Disagree?
The benefits of the broad discovery system,
outweigh the systems adverse effects?
6
Legitimate Objectives of Discovery

• Discover evidence to use
• In your case in chief
• To cross-examine (impeach)
• To rebut (contradict)

• Identify and Limit Opponents Evidence so that
  you can
• Move for SJ
• Object to Evidence
• Prepare your rebuttal
• Prepare your cross-X

• Preserve evidence so it can be used
• If witness dies etc
• If you prefer deposition to live testimony

7
Illegitimate Objectives of Discovery

• Impose financial ( other) costs on opponent in
  order to
• Force non-merits-based settlements
• Hurt the opponent in non-merits-based ways. d

• Obtain information or other advantages for
  reasons other than preparing for trial.

8
Balance Before the Federal Rules
9
Balance Under the Federal Rules Before 1993
10
How does the current system try to balance the
advantages and disadvantages?
11
Overview of Current Steps

• Pleadings
• Rule 26(f) Meeting
• 16(b) Scheduling Order
• Initial Mandatory Disclosures
• Party Initiated Discovery
• Signature Sanctions
• Mandatory Pretrial Disclosures
• Final Pretrial Conference

12
Current Steps in Federal Discovery

• Pleadings
• Disclose general theory
• Rule 11
• Often eliminate some issues

13
Current Steps in Federal Discovery

• Rule 26(f) Meeting
• Should be early
• Arrange mandatory disclosure
• Make discovery plan
• Limit subjects
• Limit time and manner
• Set case specific rules

14
Current Steps in Federal Discovery

• Rule 16(b) Scheduling Conference and Order
• Often limits issues and discovery
• Often authorizes discovery
• See 16(c)

15
Current Steps in Federal Discovery

• Initial Mandatory Disclosures
• Fact witness ID
• Document ID
• Misc
• Expert Information

16
Current Steps in Federal Discovery

• Party initiated discovery
• No ct order needed unless
• Other party objects
• Medical exam
• Exceeds certain limits
• Inconsistent with plan or earlier orders

17
Current Steps in Federal Discovery

• Signature (Rule 26(g)) Disclosures responses
• Requests
• Consistent with rules
• Authorized by law
• Not unreasonably burdensome
• Sanctions and Motions to Compel (Rule 37)

18
Current Steps in Federal Discovery

• Mandatory Pre-Trial Disclosures
• 30 days before trial (usually)
• ID what will really be presented

19
Current Steps in Federal Discovery

• Final Pretrial Conference