[311] The various instruments of discovery now serve (1) as a device, along with the pretrial hearing under Rule 16, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts, or information as to the existence of whereabouts of facts, relative to those issues.
POWELL, J., DISSENTING FROM AMENDMENTS TO FEDERAL RULES OF CIVIL PROCEDURE, 446 U.S. 997 (1980):
[312] present Rules, however, invite discovery of such scope and duration that district judges often cannot keep the practice within reasonable bounds.... One must doubt whether empirical evidence would demonstrate that untrammeled discovery actually contributes to the just resolution of disputes. If there is disagreement about that, there is none whatever about the effect of discovery practices upon the average citizen's ability to afford legal remedies.
[313] Friedenthal argues that "[i]t is not surprising to find that the battle over specificity has shifted from pleading to discovery.
[313] For example, in McLaughlin v. Copeland, 455 F.Supp. 749 (D.Del.1978), the court refused plaintiff discovery after rejecting his initial effort to state a claim: "Having failed to state a claim upon which relief can be granted, McLaughlin is not entitled to discovery merely to determine whether or not additional, unasserted claims might exist. While a plaintiff is entitled to a full opportunity to adduce evidence in support of the cognizable claims set out in his complaint, he is not entitled to discovery for the purpose of determining whether or not there may be a factual basis for a claim he has not made. The party seeking discovery had the burden of demonstrating its merits."
[313] A 1978 study by the Federal Judicial Center of over 3,000 civil cases in six federal districts showed that in 52% of the cases there was no formal discovery at all, and that only 5% of the cases had more than ten discovery requests. P. Connolly, E. Hooleman & M. Kuhlman, Judicial Control and the Civil Litigative Process: Discovery 28 (1978). Similarly, a [314] 1992 study of five state courts by the National Center for State Courts found that formal discovery was conducted less frequently in those courts than might be expected by some opponents of discovery, but that certain types of cases seemed to generate more discovery and that higher discovery volume is associated with greater discovery-related motion activity. Keilitz, Hanson & Daley, Is Civil Discovery in State Courts Out of Control?, 17 St.Ct.J. 8 (1993).
[314: The magistrate is not happy with these folks, particularly with the fact that $40,000.00 has been spent on this skirmish].
[315] Discovery is not now and never was free. Discovery is expensive. The drafters of the 1983 amendments to sections [FRCP] 26(b) and [FRCP26](g) of Rule 26 formally recognized that fact by superimposing the concept of proportionality on all behavior in the discovery arena.
[The test for compliance with the proportionality principle is threefold:] [315] [1] the information sought "appears reasonably calculated to lead to the discovery of admissible evidence." ... [2] the information sought is of sufficient potential significance to justify the burden the discovery probe would impose, that the discovery tool selected is the most efficacious of the means that might be used to acquire the desired information (taking into account cost effectiveness and the nature of the information being sought), and [3] that the timing of the probe is sensible, i.e., that there is no other juncture in the pretrial period when there would be a clearly happier balance between the benefit derived from and the burdens imposed by the particular discovery effort.
When looking at the previous two paragraphs, again, I realized that I left only the proportionality discussion, and neglected to emphasize the entire analysis required by Rule 26(b). Here is the entire excerpt, followed by the entire Rule 26(b) analysis, as I discussed it in class.
[CB-315] Discovery is not now and never was free. Discovery is expensive. The drafters of the 1983 amendments to sections FRCP26(b) and [FRCP 26](g) of Rule 26 formally recognized that fact by superimposing the concept of proportionality [FRCP 26(b)(2)(iii)] on all behavior in the discovery arena. It is no longer sufficient, as a precondition for conducting discovery, to show that the information sought "appears reasonably calculated to lead to the discovery of admissible evidence." After satisfying this threshold requirement [i.e., I. The material being sought is discoverable under FRCP 26(b)(1), before you move to proportionality] [II.C. Proportionality, FRCP 26(b)(2)(iii)] counsel also must make a common sense determination, taking into account all the circumstances, [1. Information is Significant] that the information sought is of sufficient potential significance to justify the burden the discovery probe would impose, [2. Most Adequate Discovery Device] that the discovery tool selected is the most efficacious of the means that might be used to acquire the desired information (taking [CB-316] into account cost effectiveness and the nature of the information being sought), and [3. Timing] that the timing of the probe is sensible, i.e., that there is no other juncture in the pretrial period when there would be a clearly happier balance between the benefit derived from and the burdens imposed by the particular discovery effort.
You should not forget about the other provisions of Rule 26(b), as I discussed in class. I would reach them, before reaching proportionality, as you will see in the cases we will cover in the next few days.
Thus, the analysis is:
I. Is it discoverable under 26(b)(1)?
If NO, we stop, if YES, we move on to II.
II. May/Should the discovery nonetheless be prevented under any of the provisions of Rule 26(b)(2)?
A. 26(b)(2)(i): Are you asking again or Are you asking the right person;
B. 26(b)(2)(ii): Are you too late, i.e., did you fail to exercise due diligence; or
C. 26(b)(2)(iii): Proportionality, which magistrate Brazil breaks down into three parts: (1) Information; (2) Device; (3) Timing.
[316] What the 1983 amendments require is, at heart, very simple: good faith and common sense. Counsel can satisfy these requirements by not using or responding to discovery for some ulterior purpose and by exercising straight forward judgment. The questions are simply stated: 1) what information am I really likely to need and 2) what is the most cost effective way to get it. Tailoring probes and responses to the real issues in the case at hand, rather than relying on stock questions or knee jerk objections and evasive responses, is all that is required.
DISCOVERY DEVICES
It is particularly important to understand which discovery devices are available against parties and as to non-parties to the case.
Additionally, ask yourselves how and why you would chose each discovery device.
I have assigned roles to our panel for tomorrow, based on the Dupont handout that I gave you some weeks ago. We will discuss the different discovery devices in this context.
In addition to the Discovery Devices list, see also Rule 32, on the use of discovery at trial.
[I believe that the explanations and descriptions in this area are very important, in addition to a careful reading of the rules, however, I will only excerpt the material I emphasized in class.]
[320] This "influence" test derives from the decision in Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958).
[321] Plaintiff failed to produce the records in the manner ordered, arguing that it lacked "control" of them because applicable Swiss penal law prohibited their production, and criminal sanctions might be imposed as a result of compliance with the production order. The Supreme Court held that plaintiff had "control" of the records for purposes of Rule 34, because plaintiff "is in a most advantageous position to plead with its own sovereign for relaxation of penal laws * * *."
[322] If a party wants to examine materials possessed by a nonparty, a similar procedure is used but a subpoena is required. Rule 45(a)(1)(C) authorizes a subpoena to command a nonparty to produce designated documents in its control or permit inspection of premises.
[322] In re U.S. Financial Securities Litigation, 74 F.R.D. 497 (S.D.Cal.1975) (381 pages of interrogatories containing almost 3,000 questions held unduly burdensome). This sort of abuse prompted many district courts to adopt local rules, relying on their authority under Rule 83, explicitly limiting interrogatories to a designated number (ranging from 20 to 50). In 1993, Rule 33(a) itself was amended to limit the number of interrogatories to 25 per party absent stipulation or court order.
[324] Rule 30(b)(1) allows any party to schedule a deposition on "reasonable notice" in writing. The interrogating party can also ask the witness to bring documents along, but that invokes the time limits of Rule 34.
See Rule 30(b)(5). If the witness is a party nothing further need be done to compel his attendance, and, if he fails to appear Rule 37 sanctions can be applied against him. See Rule 37(d). Otherwise, the party seeking discovery must also provide for the attendance of the witness, usually by serving a subpoena on him. See Rule 45.
[325] Although the main actors are the interrogating attorney and the witness, the witness's attorney is not inactive. Instead, she listens to the questions and can object when they are improper. On one level, the pressure to object is moderate since the only objections that are waived are objections on grounds that could be obviated if made at the deposition. Rule 32(d)(3)(A). Thus, where the objection is to the form of the question (that it is leading, or compound, or confusing) the question could be rephrased to avoid the difficulty. Indeed, Rule 30(c) states that if there are objections, "the examination shall proceed, with the testimony being taken subject to objections," so objections seem ineffective even to prevent improper inquires. Why, then, would the lawyer object? [WHY INDEED?]
[326] In Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), the Supreme Court explained the proper application of Rule 35.
[It is important to understand this ruling].
[328-330] Discovery Sequence and tactics.
[Understanding this area will help you to argue the practical aspects of a discovery determination.]
[330] 1. Discovery from nonparties: As suggested above, discovery from nonparties is more limited than discovery from parties. Note, for example, that there is no way to send interrogatories to nonparties, and nonparties are not subject to court-ordered physical examinations under Rule 35. Rule 45 allows discovery from nonparties comparable to party discovery under Rules 30 (depositions) and 34 (document requests) because it authorizes a party to use a subpoena to compel a nonparty to appear and testify at a deposition or to allow inspection of documents or premises.
[333] 2. Discovery from corporate party: Discovery against a corporate or other organizational party may be more difficult because both responsibility and knowledge are diffuse. ... "The project manager for Dalkon Shield explains that a particular question should have gone to the medical department, the medical department representative explains that the question was really [in] the bailiwick of the quality control department. The quality control department representative explains that the project manager was the one with the authority to make a decision on that question. * * * [I]t is not at all unusual for the hard questions posed in Dalkon Shield cases to be unanswerable by anyone from Robins."
[332-333] Rule 32(a) provides some specifics regarding depositions: Beyond uses allowed by the Federal Rules of Evidence, any deposition may be used for impeachment at trial, the deposition of a party (or a representative designated under Rule 30(b)(6)) may be used by an adverse party for any purpose, and the deposition of a witness may be used for any purpose if the witness is not present at trial and his absence has not been procured by the party offering the deposition. This last provision has been interpreted to permit a plaintiff from California to offer her own deposition in evidence in a trial in New York rather than travel to New York to testify personally. See Richmond v. Brooks, 227 F.2d 490 (2d Cir.1955).
[333] 6. Duty to supplement: . . . In 1993, Rule 26(e) was amended to expand the duty to supplement so that it applies whenever "the response is in some material respect incomplete or incorrect." Note that Rule 26(e) does not apply if the additional information has "otherwise been made known to the other parties during the discovery process or in writing."
[Here, there are four discovery requests.
(1) Financial condition to be used to prove punitive damages. Ruling: It is within the scope of discovery for 26(b)(1), BUT applicable substantive law prevents it's discovery until after a jury finding.
(2) Lawyer. Most of it not discoverable, but some discoverable.
(3) Other employee complaints about Ms. Ross. Not discoverable at all. Not an issue.
(4) Psychiatric records. Discoverable.
Consider the court's attitudes towards rather sensitive information. Consider how a person becomes exposed by the discovery process.]
[Consider the discussion of Relevance in note 2 at pages 337-338]
[Note 3, 338: Consider the explanation for requiring disclosure of Insurance coverage under Rule 26(a)(1)(D). ]The [rule] is limited to insurance coverage, which should be distinguished from any other facts concerning defendant's financial status (1) because insurance is an asset created specifically to satisfy the claim; (2) because the insurance company ordinarily controls the litigation; (3) because information about coverage is available only from defendant or his insurer; and (4) because disclosure does not involve a significant invasion of privacy.
[Note 6 page 340, Coca Cola Formula case, see also Note 9 at page 398].
[340] Except for a few privileged matters, nothing is sacred in civil litigation; even the legendary barriers erected by the Coca-Cola Company to keep its formulae from the world must fall if the formulae are needed to allow plaintiffs and the Court to determine the truth in these disputes.
[341] 7. Should protective orders also be granted for business information that is not, like the formula for Coca-Cola, a trade secret? In recent years there has been much consternation about the possibility that information about allegedly dangerous products has been produced through discovery but has been kept from the general public under protective orders. See, e.g., Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir.1986), cert. denied, 484 U.S. 976, 108 S.Ct. 487, 98 L.Ed.2d 485 (1987) (protective order applied to all discovery in tobacco products liability litigation). Some states have imposed restrictions on protective orders in cases involving "public health hazards." See Florida "Sunshine in Litigation Act," Fla.Stats. Sec. 69.081; Tex.R.Civ.P. 76a. Should discovery be used as a device to provide the public with information? For discussion see Marcus, The Discovery Confidentiality Controversy, 1991 U.Ill.L.Rev. 457; Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv.L.Rev. 427 (1991).
Timeline
[342] On July 17, 1975, the plaintiff filed a "Request to Produce" pursuant to Rule 34, Federal Rules of Civil Procedure, seeking, among other items, a record of all complaints and communications concerning personal injuries or death allegedly caused by the burning of children's nightwear which had been manufactured or marketed by the defendant, Sears, Roebuck & Co.
[343] In the instant case, information concerning accidents similar to the one alleged in the complaint is clearly relevant to the issues of whether the pajamas allegedly marketed by the defendant were an unreasonably dangerous product and whether the defendant knew, or in the exercise of due care should have known, of that danger. Furthermore, even though the records of similar suits might be inadmissible in evidence (Narring v. Sears, Roebuck & Co., 59 Mich.App. 717, 229 N.W.2d 901 (1975) (circumstances of prior accident were too dissimilar to accident alleged in complaint)), the records might contain facts which would lead to the discovery of admissible evidence. See Rule 26(b)(1). Accordingly, most courts have held that the existence and nature of other complaints in product liability cases is a proper subject for pretrial discovery.
[343-344] by utilizing a system of record-keeping which conceals rather than discloses relevant records, or makes it unduly difficult to identify or locate them, thus rendering the production of the documents an excessively burdensome and costly expedition. To allow a defendant whose business generates massive records to frustrate discovery by creating an inadequate filing system, and then claiming undue burden, would defeat the purposes of the discovery rules.
[344] The defendant's apparent failure in this case to pose any inquiry to Russell Mills, Inc., when a similar query proved fruitful in another case, undermines the defendant's assertion that it has produced all documents available to it
This Court will not shift the financial burden of discovery onto the discovering party, in this case an indigent plaintiff, where the costliness of the discovery procedure involved is entirely a product of the defendant's self-serving indexing scheme over which the plaintiff has no control.
Hello everyone. I wanted to let you know that I will be handing out your practical project next week. You will be required to draft certain pleadings, based on a specific factual situation. I will identify the groups that will work together on developing the pleading set. The deadlines for completion will be well after Spring Break.
In your review, pay particular attention to Federal Rules 26(b)(1), 26(b)(3) parr. 1 and parr. 2; Rule 30(a), 30(c) & 30(d)(1).
From our casebook:
[348] It is not without reason that various safeguards have been established to preclude unwarranted excursions into the privacy of a man's work. At the same time, public policy supports reasonable and necessary inquiries. Properly to balance these competing interests is a delicate and difficult task.
A public hearing was held on March 4, 1943, before the United States Steamboat Inspectors, at which the four survivors were examined. This testimony was recorded and made available to all interested parties. Shortly thereafter, Fortenbaugh privately interviewed the survivors and took statements from them with an eye toward the anticipated litigation; the survivors signed these statements on March 29. Fortenbaugh also interviewed other persons believed to have some information relating to the accident and in some cases he made memoranda of what they told him. At the time when Fortenbaugh secured the statements of the survivors, representatives of two of the deceased crew members had been in communication with him.
The 38th interrogatory read: "State whether any statements of the members of the crews of the Tugs 'J.M. Taylor' and 'Philadelphia' or of any other vessel were taken in connection with the towing of the car float and the sinking of the Tug "John M. Taylor'. Attach hereto exact copies of all such statements if in writing, and if oral, set forth in detail the exact provisions of any such oral statements or reports."
Supplemental interrogatories asked whether any oral or written statements, records, reports or other memoranda had been made concerning any matter relative to the towing operation, the sinking of the tug, the salvaging and repair of the [349] tug, and the death of the deceased. If the answer was in the affirmative, the tug owners were then requested to set forth the nature of all such records, reports, statements or other memoranda.
[349] They did so on the ground that such requests called "for privileged matter obtained in preparation for litigation" and constituted "an attempt to obtain indirectly counsel's private files." It was claimed that answering these requests "would involve practically turning over not only the complete files, but also the telephone records and, almost, the thoughts of counsel."
[350] It concluded that the materials sought were not covered by the attorney-client privilege because "the protective cloak of this privilege does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation. Nor does this privilege concern the memoranda, briefs, communications and other writings prepared by counsel for his own use in prosecuting his client's case."]
[RULE] We are thus dealing with an attempt to secure the production of written statements and mental impressions contained in the files and the mind of the attorney Fortenbaugh without any showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner's case or cause him any hardship or injustice.
[351] In our opinion, neither Rule 26 nor any other rule dealing with discovery contemplates production under such circumstances. That is not because the subject matter is privileged or irrelevant, as those concepts are used in these rules.
Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney.
In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.
"work product of the lawyer." Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.
[352] Where relevant and non-privileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty.
[353] Justice Jackson, Concurring
[353] But a common law trial is and always should be an adversary proceeding. Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.
[353] I can conceive of no practice more demoralizing to the Bar than to require a lawyer to write out and deliver to his adversary an account of what witnesses have told him. Even if his recollection were perfect, the statement would be his language permeated with his inferences.
[354] And what is the lawyer to do who has interviewed one whom he believes to be a biased, lying or hostile witness to get his unfavorable statements and know what to meet? He must record and deliver such statements even though he would not vouch for the credibility of the witness by calling him.
[355] 2. If the idea behind work product protection is to preserve some element of surprise for trial, similar concerns have surfaced in connection with certain types of impeachment evidence which might be rendered if the witness could find out about it before testifying. As one judge put it, "[a] certain amount of surprise is often a catalyst which precipitates the truth.
[355] 3. . . ."In recent years, the boundaries of discovery have steadily expanded, and it appears that the practice of taking the deposition of opposing counsel has become an increasingly popular vehicle of discovery. [See Fed. R. Civ. P. 30(a), 30(c), 30(d)(1), 26(b)(3)].
[369] Plaintiffs complaint identifies two forms of retaliation. He first complains that, despite the confidentiality of the settlement agreement, his claims against Quinlan were known by the people with whom he worked and that he suffered humiliation and retaliation at their hands. He then complains that, after hiring counsel in July 1998 to pursue formal legal remedies beginning with EEO counseling, he suffered renewed retaliation efforts.In responding to plaintiffs discovery, defendants have searched for electronic and paper documents. Since defendants have already searched for electronic records, they do not quarrel with their obligation to do so. During discovery, the producing party has an obligation to search available electronic systems for the information demanded. See Fed. R.Civ.P. 34(a) (document(s) include "data compilations from which information can be obtained"). Plaintiff, however, wants more. He wants to force DOJ to search its backup systems since they might yield, for example, data that was ultimately deleted by the user but was stored on the backup tape and remains there today.
Defendants protest that the remote possibility that such a search will yield relevant evidence cannot possibly justify the costs involved. In support of that claim, defendants submit the declaration of Billy Hoppis, Branch Chief within the JMD office responsible for technology services. Hoppis explains that for the period 1992-1998, the DOJ computer system was known as "Eagle." In 1998, DOJ computers were briefly connected to a system called "JCONl." From 1998 to the present, they have been connected to "JCON2."
There was never a system-wide backup policy for Eagle servers. Each DOJ building had a server and an administrator who had his or her own backup policies. DOJ never intended a system which perfectly preserved all data. The purpose of having a backup system and retaining the tapes was to permit recovery from a disaster, not archival preservation. As a result, there are backup tapes for some periods of time but not others. Additionally, Hoppis explains: ****
[CB-370]
***, merely restoring the e-mail from a single backup tape would take eight hours at a cost of no less than $93 per hour.It is therefore impossible to know in advance what is on these backup tapes. There is a theoretical possibility that there may be something on the tapes that is relevant to a claim or defense, for example, a subsequently deleted e-mail that might be evidence of a retaliatory motive. That possibility exists because other information establishes that the persons plaintiff claims retaliated against him used their computers for word processing and e-mail, and the backup tapes may have captured what those persons have since deleted from their computer files.
[371] [Cost of Production]
Furthermore, making the producing party pay for all costs of restoration as a cost of its "choice" to use computers creates a disincentive for the requesting party to demand anything less than all of the tapes. American lawyers engaged in discovery have never been accused of asking for too little. To the contrary, like the Rolling Stones, they hope that if they ask for what they want, they will get what they need. They hardly need any more encouragement to demand as much as they can from their opponent.
The converse solution is to make the party seeking the restoration of the backup tapes pay for them, so that the requesting party literally gets what it pays for. Those who favor a "market" economic approach to the law would argue that charging the requesting party would guarantee that the requesting party would only demand what it needs. Under that rationale, shifting the cost of production solves the problem.*** Moreover, if government agencies are consistently required to pay for the restoration of backup tapes, they may be sorely tempted not to have such systems. There lies disaster; one shudders to think what would happen if the computer system at the Social Security Administration crashed and there was no backup system. While the notion that government agencies and businesses will not have backup systems if they are forced to restore them whenever they are sued may seem fanciful, courts should not lead them into temptation.
[372] [Cost Matters]
Finally, economic considerations have to be pertinent if the court is to remain faithful to its responsibility to prevent "undue burden or expense". Fed.R.Civ.P. 26(c). If the likelihood of finding something was the only criterion, there is a risk that someone will have to spend hundreds of thousands of dollars to produce a single e-mail. That is an awfully expensive needle to justify searching a haystack. It must be recalled that ordering the producing party to restore backup tapes upon a showing of likelihood that they will contain relevant information in every case gives the plaintiff a gigantic club with which to beat his opponent into settlement. No corporate president in her right mind would fail to settle a lawsuit for $100,000 if the restoration of backup tapes would cost $300,000. While that scenario might warm the cockles of certain lawyers' hearts, no one would accuse it of being just.Given the complicated questions presented, the clash of policies and the lack of precedential guidance, I have decided to take small steps and perform, as it were, a test run. Accordingly, I will order DOJ to perform a backup restoration of the e-mails attributable to Diegelman's computer during the period of July 1, 1998 to July 1, 1999. I have chosen this period because a letter from plaintiffs counsel to DOJ, complaining of retaliation and threatening to file an administrative claim, is dated July 2, 1998, and it seems to me a convenient and rational starting point to search for evidence of retaliation. I have chosen e-mail because of its universal use and because I am hoping that the restoration will yield both the e-mails Diegelman sent and those he received.