js5389's version from 2015-12-10 20:32



Question Answer
Issue of moral hazardcost of a party’s conduct is not internalized, but thrust onto the other party; one would think that mutually assured destruction would stop this, but there is a HUGE time lag between when the parties have to pay, so they just end up costing e/o a ton of money (cheap to ask for info, expensive to produce it), PLUS courts are generally reluctant to get involved unless there’s been egregious abuse


Question Answer
Rule 26(a)Required Disclosures
Rule 26(a)(1)(A)(i)- 26(a)(1)(A)(i): request for info re: all people likely to have discoverable information; must be provided “without awaiting a discovery request” pertinent info about relevant materials (discovery is about finding RELEVANT info not necessarily ADMISSIBLE info)
Rule 26(b)
Rule 26(b)(6) requires judges to determine the “optimal level of discovery beyond which additional discovery would not be cost-effective and restricting discovery when the dollar amount or values at stake are low
26(c)motion to quash (“protective order” to prevent discovery)
26(f)parties are required to submit a discovery plan to the judge beforehand
Rule 27-28a highly efficient way of presenting live testimony; testimony and cross-examination are increasingly done via depo
Rule 30Deposition by Oral Examination (usually videotaped)
Rule 31Written Deposition
Rule 33Interrogatories
- Most efficient way of producing info if done right — ask directed questions, get specific answers (but they WILL be answered by a lawyer who will try to give you the runaround)
Fairly cheap, so lawyers will try to use these to get info to avoid depos
Answers are taken as established fact for the purposes of trial
- At Rule 16 pretrial conference, all facts from interrogatories not disputed become part of the official record should the case go to trial
Rule 33(a)(1)25-interrogatory limit this is too much for little cases and not enough for big cases (scope of discovery is far too nebulous to be effective or efficient)
Rule 33(d)if parties ask for info that’s “burdensome” to produce, you can just hand them over your business records (moral hazard – expensive to answer)
Rule 34Production of documents and entry onto land for discovery purposes
Rule 35Physical or mental examination
- The only part of discovery that’s not completely under the parties’ control!
Rule 36Requests for Admission
- Preliminary form of stipulation – once something is stipulated, it is out of contention
- Lawyers use 33, 34, and 36, together - 33: ID who controls the documents for X; 34: re: that answer, please produce all the documents in the possession of person identified in interrogatory; 36: Admit that the person identified in interrogatory is the person in control of these documents
- Contention Interrogatory – major development re: what you are allowed to ask ITO the theory of a case – good π lawyers will try to use 33, 34, and 36 to get ∆’s to admit to stuff and narrow the scope of the case; good ∆ lawyers will say “we’re not prepared to answer this at this time”
—Ex: on what basis do you consider my client to be liable? What docs do you believe establish my client’s liability?
Rule 37Sanctions [this is where lawyers get pwnd]
- DON’T HIDE DOCUMENTS – better your client goes to jail than you


Question Answer
Hickman v. Taylorattorney work product immunity to discovery (privileged info)
- Discovery has 2 purposes:
1. Along with the Rule 16 pretrial conference, functions as a device to narrow and clarify basic issues between the parties
2. Functions as a device for ascertaining the facts or info as to the existence of whereabouts of facts relative to those issues
Coca Cola Bottling v. Coca Cola Facts∆ wouldn’t let π distrib Diet Coke, π said this violated their exclusive agreement b/c Diet Coke and Coke are the same exact formula, issued a discovery request for ∆ to produce the Coke and Diet Coke formulae!
Coca Cola Bottling v. Coca Cola HoldingCt said ∆ had to produce the formula and it would provide safeguards to protect it, but ∆’s decided to settle instead --> shows how massively expensive discovery can be!
Davis v. Ross FactsDiana Ross’ former assistant sued her and said she needed her financial records to determine punitive damages; Ross counters that π needs a mental exam (Rule 35) b/c she’s claiming mental anguish and Ross says that its exaggerated; Ross also wants to protect her net worth info b/c she’s in litigation w/ the 2 other Supremes re: royalties and would be harmed in those cases if the info got out.
Davis v. Ross HoldingCt denies ∆’s order of production until special verdict on punitive damages
Davis v. Ross Takeawayrevealing info would be really damaging to Ross in litigation w/other Supremes, but she has no means to prevent this if the court’s verdict on special damages comes back not in her favor
In re Convergent TechnologiesDiscovery requires “good faith and common sense” – need to ask yourself:
1. What info an I really likely to need?
2. What is the most cost effective way to get it?
Kozlowski v. Sears Factsπ’s ask ∆’s for info on all flammable PJ incidents. ∆’s don’t produce b/c its “too burdensome” (Sears has been around since the Civil War!); Rule 72 – π’s got magistrate to rule that ∆’s should produce, ∆’s filed 26(c) motion to quash; overruled, but Sears still didn’t comply [Issaharoff: Sears should have pulled a 33(d) and said look yourself! Obviously there isn’t one document w/all this]. Case proceeds under Rule 37 sanctions proceedings to sanction ∆ for failure to produce
Kozlowski v. Sears HoldingSears can’t get out of production by claiming shitty record keeping, even if production would be burdensome [duh coulda done 33(d)]! Although Sears does have a right to keep its records however it wants, there are two justifications for shifting the burden of production onto ∆’s:
1. Lowest cost provider of information [but we can’t argue wealth distribution is a factor in discovery, so the major one is really…)
2. DETERRENCE – let’s make them NOW bring their records up to date, and we won’t have this problem in the future! Good record keeping is the cost of doing business in the modern world. We need to be able to hold companies accountable, so SUCK IT UP SEARS
McPeek v. Ashcroft FactsDOJ didn’t have backup systems for the entire server designed to save everything, just as a fail-safe for individual servers case of emergency that wouldn’t recover everything; π wanted ∆ to produce HUGE amounts of records, all of which might end up being totally irrelevant. This would also be really costly to the DOJ to restore all the tapes and get people working on it.
McPeek v. Ashcroft HoldingJudge decides to do sampling – have DOJ restore a year’s worth of emails including a date in which there is alleged evidence; ∆ should keep track of time and $ spent, they will see what (if any) info turns up, and at that point the parties will be permitted to argue “why the results and the expense do or do not justify any further search”