American Civil Litigation
and Dispute Resolution
University of Insubria, Como, Italy
Jeffrey W. Stempel
William S. Boyd School of Law
University of Nevada, Las Vegas
Segment 3
The Discovery and Trial Process
Disclosure and Discovery
• Prior to 1938, only available in select courts
for select cases
• A dramatic change in the practice of law
• No more “trial by ambush” or guessing at the
other side’s proof
• Counsel now has the means to become
informed about the other side’s facts and
evidence
• “Fishing expeditions” allowed
Disclosure and Discovery
• Rule 26 is the fulcrum of U.S. federal court
discovery
• Similar rule in almost every state
• Disclosure rules came in 1993
• But they were intended to simply advance
production of information everyone had been
getting since 1938
Disclosure and Discovery
• Rule 26 sets forth the scope of discovery
• Any matter that is “not privileged” which relates
to the “claims” or “defenses” of the parties
• For “good cause” shown, a litigant may have
discovery of anything relevant to the “subject
matter” of the case
• Even if material sought is not admissible in
evidence, discovery is permitted as long as
discovery is “reasonably calculated” to lead to
admissible evidence
Discovery -- Privilege
• Attorney-Client most important
• But courts also recognize other privileges
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Clergy (Priest-Penitent)
Doctor-Patient
Trade Secrets
National Security
Marital Communications (but not absolute ban on
discovery/evidence from spouse). Wife can testify
that she saw husband sell drugs but cannot say that
husband told her he sold drugs.
Attorney-Client Privilege
• Elements of the Privilege
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Attorney-Client Relationship
Communication between lawyer and client
Made in confidence
For the purpose of facilitating legal advice
Kept in confidence (e.g., not waived through disclosure)
• An “absolute” privilege – no exceptions if it is
applicable
• But privilege may be destroyed by conduct such as
waiver or fail to apply. Most common example of this
is the “crime-fraud” exception – communications are
not privileged if lawyer’s services used to effect a
crime or fraud
Trial Preparation or “Work Product”
Privilege (Rule 26(b)(3))
• Things prepared by lawyer (and staff, such as paralegals or
investigators) “in anticipation of litigation” need not be produced to
opponent
– But the underlying facts are not privileged
– Example: Lawyer interviews witness; lawyer notes privileged but
opponent can interview witness or take deposition of witness
• A “qualified” privilege rather than an absolute privilege
– If the opponent can show inability to get “substantial equivalent” of
the materials without “undue burden” the materials may be ordered
produced
– But attorney mental impressions still protected. For example, parts of
a witness interview reflecting counsel’s thinking may be redacted. If
that is impossible, the material may be protected even if there is
hardship to the opponent (e.g., witness dies after interview)
Resistance to Discovery
• Party may seek to avoid or limit discovery if
the request causes an “undue burden”
• Can be measured by sheer volume of what
is sought (and what is sought must be
relevant even if not voluminous)
• Or by the expense of production
• Or the inconvenience or inappropriateness
of the discovery (e.g., seeking to depose
President Obama when plaintiff has a
lawsuit against the Post Office for a mail
delivery accident)
Discovery Devices
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Interrogatories (Rule 33)
Document Production Requests (Rule 34)
Depositions (Rule 30)
Medical Examinations or Inspections (Rule 35)
Requests for Admission (Rule 36)
Interrogatories
• Governed by Rule 33
• Allows each side to ask questions of the other
• Presumptive limit of 25 per party
– More available if showing of good cause or need
• Must make reasonable effort to answer
– Important for organizational or entity parties (e.g.,
corporations, governments). Businesses can not
“forget” as easily as a natural person
Interrogatories
• A good, inexpensive way to find out what the
other side is thinking, what it can prove, etc.
– Example: “State any and all facts on the basis of
which you contend that International Shoe is
subject to the jurisdiction of the courts of the
state of Washington.”
– Or “Set forth in detail the medical expenses which
Plaintiff Tompkins claims he incurred as a result of
his injuries related to the Erie Railroad Company.”
Document Production Requests
• Allows for the exchange of written information
• No limit on production
• Allows parties to see if their respective
contentions are supported in the record
• Hard for opponent to hide behind what it
previously stated
– Example: “smoking gun” letter or emails (e.g., “We
know the product is unsafe but it is so profitable we
have to keep selling it. A warning would reduce
sales.”)
Depositions
• Governed by Federal Rule 30 (for oral
depositions)
– Rule 31 governs written question depositions, which
are far less common
• Can be videotaped, is always recorded or
transcribed
• Presumptive limit of 10 depositions per side
– But court can order more for good cause
• Presumptive limit on length of deposition to one
business day of seven (7) hours but can be
changed
Depositions
• Counsel examines person (or a person
representing an entity such as a corporation
or government) under oath
• Like questioning a witness at trial but different
• At trial, you call your witnesses and prepare
them to give streamlined, relevant, efficient
testimony. Although you might call an
“adverse” witness to put information into the
trial record, this is comparatively rare
Depositions
• By contrast, many of the people counsel wants
to depose are adverse
• Purpose of the deposition is to find out what
the other side’s possible witnesses know
about the matter
• Also to decide if they will be good witnesses at
trial (may affect attitudes toward settlement)
• Or to “lock in” the deponent’s testimony so
that the deponent cannot be evasive at trial
Depositions
• Depositions thus often have leading question –
and effort to “cut to the chase”
• But may also simply try to get the witness to pour
forth information (e.g., “Tell me everything that
happened from the time you opened the factory
until the explosion”)
• Many depositions are of neutral third parties who
may have information. Although objectives
similar, less hostility as the neutral witness will be
more cooperative
Depositions
• The deponent is entitled to be represented by
counsel who may “defend” the deposition to
protect the witness and prevent improper
questioning – but may not improperly interfere
with the questioning
• Counsel also prepares (“sandpapers”) the
deponent
– The three best answers for the deponent: “yes,” “no,”
and “I don’t remember”
– Overstated – but this is the idea for adverse
deponents, an effort not to help the other side and to
say only what is required by law
Depositions
• If lawyers cannot agree on proper
questioning, they may seek court
intervention via telephone
• Or may take a break from the deposition,
seek a court order, and resume the
deposition at a later date.
• Deposition testimony can be used under
many circumstances at trial if the deponent
is unavailable at the time of trial
Medical Exams, Etc
• Federal Rule 35
• Common in bodily injury claims (e.g., auto
accident) – Defendant will want someone
other than plaintiff’s own doctor to assess the
extent of plaintiff’s injury
• Can also permit inspections of land, taking of
water samples, etc.
Requests to Admit
Federal Rule 36
• Party sends requests to admit
• Receiving party must admit, deny, or explain
why it cannot respond
• Sounds wonderful in practice but not very
effective for gaining admissions on contested
issue
• But can be an effective way of avoiding using
trial time to prove clearly objectively
established facts or non-controversial facts
Some Additional Aspects of Discovery
• “Meet and Confer” rules
– Lawyers and parties required to attempt informal resolution of
discovery disputes before bothering the court.
• Stipulations (Rule 29)
– In the American “adversary system” lawyers and clients are
allowed to agree to most anything
– As long as it does not intrude upon the authority of the court
• Supplementation
– Parties must supplement earlier discovery response if failure to
supplement would be misleading
– Or if changed circumstances require a correction of a previously
accurate discovery response
More on Discovery
• Special Rules for Experts (in Rule 26)
– Fear of a party or counsel being ambushed by a
slick expert that may be persuasive to layperson
jurors but is actually full of hot air
– The idea is to allow each side to test the bona
fides of the other’s expert and to better prepare
for trial
• Report by the expert is required – then usually
a deposition
More Additional Aspects
• Disclosures
• Initial
– These are the disclosures that need to be made at the
outset of the litigation
– Before 1993, this was material usually sought in the first
set of Interrogatories or Document Production Request
– Baseline information
• Pretrial
– Disclosure of Witnesses to be called, Exhibits to be
introduced
– Part of the final pretrial process -- occurs after discovery
and decisions on summary judgment motions
More on Required Initial Disclosures
• The names and contact information of people
with knowledge (who may have “discoverable
information”) and the subject of their
knowledge if it will be used to support the
party’s case
• A copy of all documents used to support the
party’s claims
• A computation of the party’s damage claims
• A copy of any applicable insurance policies
Enforcement of Discovery Rights
• Federal Rule 37
• Where the opposing party is not providing required
disclosure or adequate responses to discovery, the
requesting party may seek help from the court
• An order “compelling” the requested discovery
• If opposing party fails to comply with the order, the
court may punish the opposing party
• If the opposing party’s claim not “substantially
justified” (even if not persuasive), the court may award
attorney fees to the moving party. Governed by
Federal Rule 30
Enforcing Discovery Rights
• If an order compelling discovery is not
obeyed, the court may
– Levy a fine against the disobeying party
– May require payment of attorney fees
– May declare certain facts established for purpose
of trial
– May enter a default judgment against the party
– May even use incarceration as a punishment for
contempt
• All this is pretty rare. Most American lawyers
think courts are not aggressive enough in
enforcing discovery rights