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WHERE WE ARE & WHAT WE’RE DOING

WHERE WE ARE & WHAT WE’RE DOING. Knowledge is power Discovery = Access to knowledge. WHERE WE ARE & WHAT WE’RE DOING. Discovery What is it? Role in modern litigation?. WHERE WE ARE & WHAT WE’RE DOING. Pleading Pre-trial Discovery Resolution without Trial Trial & Post-trial Appeal.

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WHERE WE ARE & WHAT WE’RE DOING

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  1. WHERE WE ARE & WHAT WE’RE DOING • Knowledge is power • Discovery = Access to knowledge

  2. WHERE WE ARE & WHAT WE’RE DOING • Discovery • What is it? • Role in modern litigation?

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

  4. WHERE WE ARE & WHAT WE’RE DOING • Big themes • Avoiding “trial by ambush” • Access to courts • Speed • Low-cost v. “Accurate” decisions • Controlling strategic behavior • Lawyer job satisfaction

  5. WHERE WE ARE & WHAT WE’RE DOING • Federal Rules Amendments • 1970 • 1983 • 1993 • 2000 • Causes & consequences • System under stress • Crumbling consensus • Compromises • Rule Complexity

  6. DISCOVERYFR 26(b) Discovery Scope & Limits • Parties • may • obtain discovery of • any matter • not privileged • relevant to • the claim • or defense • of any party

  7. DISCOVERYFR 26(b) Discovery Scope & Limits • For good cause, • the court may order • discovery of • any matter • relevant to • the subject matter • involved in the action

  8. DISCOVERYRelevance & Privilege • Why did ct find broad discovery request • Relevant in Blank v. Sullivan & Cromwell? • Irrelevant in Steffan v. Cheney?

  9. DISCOVERYRelevance • Blank v. Sullivan & Cromwell, Supp. 417 • Info sought • Method • Steps to resist • Def’s argument • Ct’s response

  10. DISCOVERYRelevance • Steffan v. Cheney, Supp. p. 418 • Info sought • Method • Steps to resist • Trial Ct’s response • Why def thinks relevant? • Why D.C. Cir. thinks irrelevant? • “Scope of review”

  11. APPELLATE REVIEW • Scope of review • How did Steffan reach appellate court?

  12. DISCOVERYRelevance • Johnson Matthey, Inc. Supp. p. 422 • Info sought • Method • Steps to resist • FR 26(b)(1) Standard for discoverability

  13. DISCOVERYRelevance • Relevance isn’t abstract concept • Information relevant to • Claim (elements?) • Defenses • Subject matter of action

  14. TAKEAWAYS • Black Letter Law (the “gist”) • FR 26(b) (1) Discovery scope • 2 stages • As of right • “relevant to … claim or defense” • Court’s discretion • “relevant to … subject matter”

  15. TAKEAWAYS • “The Law is a seamless web” • Civ Pro discovery rules depend on • Law of evidence • Law governing claims/defenses

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