Discovery Flashcards
Scope of Discovery and Proportionality
Parties may obtain discovery of any non-privileges matter that is relevant to any party’s claim or defenses and proportional to the needs of the case, including the existence of any documents and the identity of any persons having knowledge of any discoverable matter.
1) Relevance is defined as evidence having any tendency to make the existence of a fact that is of consequence in determining the action more or less probable than it would be without the evidence. It is a very low standard. Relevant evidence need not be admissible at trial to be discoverable.
2) The philosophy of the scope of discovery is that each case should be disposed of on the merits and that all relevant information should be available to all parties.
Scope of Discovery and Proportionality
CALIFORNIA
In California, any party may obtain discovery regarding any matter that is relevant to the subject matter involved in the action. The scope of discovery in California is broader than the federal rules.
Types of Mechanics of Discovery Devices
CALIFORNIA
In California, a party may obtain discovery by 1) interrogatories 2) inspection of documents and other property 3) requests for admission 4) deposition AND 5) physical and mental examinations.
Types of Mechanics of Discovery Devices - Subpoena Duces Tecum
A subpoena duces tecum is used to compel any person, including a nonparty, to produce documents or electronically stored information in that person’s possession or control. The person responding to a subpoena duces tecum must produce any of the requested documents as they are kept in the ordinary course of business.
1) To obtain discovery from a party: notice is required
2) To take the deposition of a non-party: subpoena
3) To require a nonparty to produce documents in her possession: subpoena duces tecum.
ESSAY TIP
ESSAY TIP: The only type of discovery available in regard to a nonparty is the taking of a deposition via subpoena or requiring the nonparty to produce documents through the use of a subpoena duces tecum.
Physical and Mental Examination
A court may order a party whose mental and physical condition is in controversy to submit to a physical or mental examination by a suitably licensed professional. Unlike other forms of discovery, this rule operates only by court order. The order may be made only on motion for good cause.
1) The rule is most commonly invoked to allow the defendant to obtain an independent medical examination of the plaintiff in cases involving claims for physical injury. In almost all such cases, the fact that the plaintiff is claiming substantial injuries will justify an order for an exam.
2) The discovery method allows the examining party an opportunity to have her own medical professional observe the person whose condition is in controversy.
Physical and Mental Examination - In Controversy
Because of strong privacy interests, an examination will be permitted only when a person’s physical or mental condition is a key issue in the case.
Physical and Mental Examination - Good Cause
No party has a right to an examination without first obtaining a court order on the basis of a showing of good cause. The reason is physical and mental examinations involve an invasion of a person’s privacy.
1) In assessing whether a party has shown good cause for the requested examination, the court considers whether the party has demonstrated that the examination would be relevant and whether there is an actual need for the information. A party meets the need requirement by showing that the examination will produce some relevant evidence that is NOT available from other sources.
Physical and Mental Examination - Mental and Physical Examinations are Procedural
The Supreme Court has held that the court’s authority to order a physical examination is procedural.
Physical and Mental Examinations - California and Federal Distinction
In California, a party may obtain one physical exam as a matter of right, but a court order is required to demand that a party submit to a mental exam. In contrast, federal courts require a court order before either exam is taken.
Limits on Discovery
Even though certain material is relevant, information that is protected by a privilege is NOT discoverable. The two most common privileges raised in discovery are the attorney – client privilege and the attorney work product.
Attorney Work Product Doctrine
A party may NOT discover documents that are prepared in anticipation of litigation by the other party’s attorney or agent. However, such materials may be disclosed if: 1) if the party seeking discovery shows that she has a substantial need for the materials to prepare her case AND 2) cannot, without undue hardship obtain their substantial equivalent by other means. Thus, the work product doctrine is only qualified privilege.
1) If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney by redacting the information so that it cannot be read.
2) The rational of the work product doctrine is to preserve the rights of attorneys to prepare cases with the degree of privacy necessary to encourage them to thoroughly investigate not only favorable but unfavorable aspects of the case.
Attorney Work Product Doctrine
CALIFORNIA
In California, the work product of an attorney is NOT discoverable UNLESS the court determines that denial of discovery will unfairly prejudice the party seeking discovery or will result in an injustice. This standard is pretty much the same as the federal standard.
ESSAY TIP
ESSAY TIP: Recently, the examiners have shifted their focus to discovery in civil procedures essays. In the past, discovery never showed up on the essays but in three out of the last couple of essays, an issue about discovery was asked in at least one call. Therefore, make sure pay attention.
