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WHERE WE ARE & WHAT WE’RE DOING

This guide explores critical aspects of discovery and work product in civil litigation, highlighting the rules and limits set forth in FR 26. It covers relevant case law, including Hickman v. Taylor, and the balance between a party's right to discover relevant materials and the protection of trial preparation materials. Key concepts like the scope of discovery, exceptions, and the conditions under which work product can be disclosed are discussed. This resource is essential for legal professionals navigating the complexities of the pre-trial process.

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WHERE WE ARE & WHAT WE’RE DOING

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  1. WHERE WE ARE & WHAT WE’RE DOING • Pleading • Pre-trial • Discovery • Resolution without Trial • Trial & Post-trial • Appeal

  2. DISCOVERYScope & Limits • 26(b)(1) General • Not privileged • Relevant to • Claim/defense • Subject matter • 26(b)(2) Court discretion to limit • Individual case • Local rule - #requests to admit • 26(b)(3) & (4) Exceptions • Trial Preparation Materials • Experts

  3. F.R.Civ. P.Advisory Committee Notes • “Legislative history” • What drafters thought they were doing

  4. WORK PRODUCTHickman v. Taylor, p. 525 • Reviewability • How did Hickman reach appellate court? • What type of orders appealable? • What was order appealed from here? • Why appealable?

  5. WORK PRODUCTHickman v. Taylor • Discovery requests • Device • Information sought • Relevant? • Privileged?

  6. WORK PRODUCTHickman v. Taylor • Policy concerns

  7. WORK PRODUCTHickman v. Taylor • Interrogatories • List names/addresses of any W’s to sinking ship • Facts • Discoverable • List any such W’s you have interviewed • Strategy/mental impressions? • Not discoverable? • Describe statement of each W • Lawyer’s mental impressions • Not discoverable

  8. WORK PRODUCTHickman v. Taylor • Hypothetical • Fortenbaugh interviewed W • W says “I saw several loose hull plates on ship just before it sank” • Frame a discovery request • Existence of W • Hull plates loose

  9. DISCOVERYFR 26(b)(3) Trial Prep Materials • Party may obtain • discovery of • documents • and • tangible things • otherwise discoverable under . . . (b)(1) . . . • and • prepared in anticipation of litigation • or • for trial • by or for another party • or • by or for that other party’s representative . . .

  10. DISCOVERYFR 26(b)(3) Trial Prep Materials • Only upon a showing that • the party seeking discovery • has substantial need • of the materials • in the preparation of • the party’s case • and that • the party • is unable without undue hardship • to obtain • the substantial equivalent • of the materials • by other means

  11. DISCOVERYFR 26(b)(3) Trial Prep Materials • In ordering discovery • of such materials • when the required showing • has been made • the court • shall guard against • disclosure of • the mental impressions • conclusions • opinions • or • legal theories • of an attorney • or • other representative • concerning the litigation

  12. DISCOVERYFR 26(b)(3) Trial Prep Materials • Advisory Committee • Proposal to delete FR 26(b)(3) • Abolish protection for “work product”

  13. TAKEAWAYS • Black Letter Law • FR 26(b) (3) • Exception to broad scope of discovery • Largely codifies Hickman v. Taylor • Protects • Trial preparation materials • Not facts • “Conditional” privilege • Overcome by showing of need

  14. TAKEAWAYS • Big theme • Tension between • Duty to court • Adversarial role

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