WHERE WE ARE &
WHAT WE’RE DOING
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Pleading
Pre-trial
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Discovery
Resolution without Trial
Trial & Post-trial
Appeal
DISCOVERY
Adversary Cultures
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Seamy Underside of Practice
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Effects of Discovery Abuse
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Different practice settings
Clients
Lawyers
The Teaching Challenge
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Understand strategic uses/abuses
Not communicate that is how to behave
DISCOVERY
Ensuring Compliance
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Tension
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Rules make attorneys responsible for discovery
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Ideally, keep judges out
But judges key to compliance
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Prevention
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judicial supervision
Deterrence
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sanctions
DISCOVERY
Prevention
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Limits on discovery
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Judicial Supervision
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Relevance, FR 26(b)(1)
Quantity, FR 30(a)(2)(A), FR 33(a)
FR 26(f) Conference
FR 16 Pretrial conferences
Obligation of Attorneys
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FR 26(g) Signature = certification
DISCOVERY
Deterrence
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FR 26(c) Protection orders
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Procedure
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Motion
Certificate conferred
Standard
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“Good cause shown”
DISCOVERY
Deterrence
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FR 37(a) Motion to Compel
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Procedure 37(a)(2)
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Motion
Certificate conferred
Standard
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If deponent or party fails to make disclosure/answer question
DISCOVERY
Chudasama, p. 549
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Why reviewable?
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Is this a final order?
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Interlocutory order
28 U.S.C. 1292(b)
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“controlling question of law
“substantial ground for difference of opinion”
“substantially advance termination of litigation”
DISCOVERY
Chudasama, p. 549
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Scope of appellate review?
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Motion to compel
Imposition of sanctions
“Abuse of discretion”
DISCOVERY
Chudasama, p. 549
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According to 11th Cir.
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What did trial court do wrong?
Why are those actions “abuse of discretion”?
DISCOVERY
Chudasama, p. 549
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What did the lawyers do wrong?
DISCOVERY
Chudasama, p. 549
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“Self-help”
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Why shouldn’t def comply until judge rules?
DISCOVERY
Chudasama, p. 549
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Trial ct judge
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80+
25 page order
Remand order “Reassign to different case”
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What should new judge do?
TAKEAWAYS
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Black Letter Law
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FR 26(g) Signature = certification
FR 26(f) Conference
FR 26(c) Protection orders
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Parties must confer
FR 37(a) Motion to compel
FR 37 (b) Failure to comply - sanctions
TAKEAWAYS
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Big theme
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Tension between
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Open discovery
v.
Adversary system
Creating incentives for lawyers to behave