Agenda for 6th Class

1. Agenda for 6th Class • Admin • Handouts • Name plates • Next week’s office hours • M 9/30 4:30-5:30 (not 3:20-4:20) • 1995 Exam: Responding to Complaint • Review of confusions relating to amendment & relation back • Relationship between relation back & amendment • Who can challenge amendment that changes a party • Application to Zielinsky • Discovery • Relevance • Work Product

2. Assignment for Next Class I • Review any materials or questions we didn’t cover in class on Tuesday • Discovery III. Experts • FRCP 26(a)(2), (b)(4), (c)(1) • Yeazell 497-508 • Briefly summarize Thompson, Chiquita, and Stalnaker • Incorporate into your summaries of Thompson and Chiquita answers to p. 502 question 1 • Incorporate into your summary of Stalnaker an answer to p. 506 question 1 • 499ff Qs 1-4; 502ff Qs 2-3; 506ff Qs 2, 4b • Note that 503 Q3 should refer to 26(b)(4)(B), not 26(a)(2)(B)

3. Assignment for Next Class II • Discovery III. Experts (continued) • Suppose plaintiff has lung cancer which he thinks might have been caused by exposure to asbestos. Plaintiff’s lawyer has a doctor extract 10 lung samples, which she then sends to 10 pathologists. 9 say the lung cancer was caused by smoking, but the 10th says it was caused by asbestos. The lawyer discloses the 10th pathologist as one who will testify at trial, but says nothing about the other 9 to the defendant. Can defendant’s lawyer find out that plaintiff consulted 10 pathologists? Can she find out their identities? Can she depose the other 9? Why is this important? • Discovery IV. Sanctions • FRCP 26(g), 30(c)-(d), 37 • Yeazell 508-512 • Yeazell p. 510 Qs 1-5 • Continue reading A Civil Action • Read through p. 263 by Tuesday, October 1

4. Intro to Discovery Sanctions • Rule 11 does not apply to discovery. See 11(d) • FRCP 26(g). Very similar to Rule 11, except applies to written aspects of discovery • Discovery requests, responses, or objections must be signed by lawyer • Disclosure is complete • Requests, responses, or objections are warranted by law or non-frivolous argument to change the law, not for improper purpose, not unreasonable or unduly burdensome • Sanctions are mandatory. May include fees to opposing counsel • FRCP 30(d). Depositions • Court may impose sanction (including lawyer’s fees) if person impedes, delays or frustrates deposition • FRCP 37(a) motion to compel • If granted, court must award attorneys fees • FRCP 37(b). Discretionary sanctions for failure to obey court order • Lots of other sanctions provisions

5. Intro to Experts 3 Kinds of Experts Expert who will testify at trial Heightened discovery FRCP 26(a)(2)(A). Disclosure of name of testifying expert FRCP 26(a)(2)(B). Testifying expert must prepare report and report must be disclosed FRCP 26(b)(4)(A). Opposing party may depose testifying expert Non-testifying expert, hired in anticipation of litigation or to prepare for trial Treated like other work product FRCP 26(b)(4)(D). Non-testifying expert, hired in anticipation of litigation or to prepare for trial, is shielded from discovery Experts not hired in anticipation of trial are subject to discovery like ordinary witnesses E.g. engineer who designed product which may be defective; doctor who examined patient for treatment (not for litigation purposes) 5

6. Review of Last Class I • If need court permission for amendment, court considers • Timing • Fault • Prejudice • Compare defendant’s position if amended complaint was original complaint versus amended complaint allowed at time actually served • Compare plaintiff’s position if amended answer was original answer versus amended answer allowed at time actually served • Whether amendment would be futile because statute of limitations has run out AND amendment would not relate back • Only relevant if statute of limitations ran out between filing of original complaint and amendment • Technically relation back is defense to statute of limitations defense, which defendant would raise in 12(b)(6) or SJ motion • But makes sense to consider relation back at time of amendment, because it would be waste of time to allow amendment and then deal with statute of limitations issue in separate motion.

7. Review of Last Class II • Who can challenge amendment changing party • Only original defendant can challenge • Won’t usually be motivated to do so, because will usually benefit from addition of another defendant • Court can still deny because of its own analysis of fault, timing, and prejudice • New defendant has no grounds to object to timing of suit against it, except statute of limitations • If sued after statute of limitations has run out, it can bring 12(b)(6) or summary judgment motion asking for ruling on statute of limitations • If plaintiff raises relation back issue, defendant can argue that relation back in appropriate • OR defendant explain why relation back is inappropriate in 12(b)(6) or SJ motion

8. Review of Last Class III • Relation Back if applied to Zielinsky • We don’t know when CCI became aware of the action. • CCI reported accident to insurance company 1 day after accident (see opinion ¶5), but that doesn’t mean that CCI was aware of the lawsuit • Lawsuit wasn’t filed until 2 months later • Perhaps aware of lawsuit because its employee (Sandy Johnson) was deposed) • But not necessarily • Question whether insurer’s awareness of suit counts as “party … received such notice… that will not be prejudiced” 15(c)(1)(C)(i)? • Knowledge by lawyer generally imputed to party • But insurer not yet acting as lawyer for CCI • BUT purpose of notice is to ensure that no prejudice • CCI not harmed by lack of knowledge, b/c insurer looking out for its interest • Textualist versus purposivist interpretation

9. 1995 Exam • 1995 Exam (handout) • Assume that Ms. Wagner knows what Joanna Reed told Mr. Frykes

10. Discovery Scope • FRCP 26(b)(1). Any non-privileged matter relevant to claim or defense is discoverable • Privileges – attorney-client, doctor-patient, self-incrimination… • Other limitations • Special rules for work product and experts • Cost outweighs likely benefit. 26(b)(2)(C )(iii) • Annoying, embarrassing, oppressive. 26(c )(1) • Court may issue protective order. 26(c )(1) • Questions • Briefly summarize Davis v Precoat Metals and Stefan v Cheney • Yeazell Pp. 463ff. Q1-4 • Yeazell 487-97

11. Work Product • Work Product 26(b)(3) • No discovery of “documents and tangible things prepared in anticipation of litigation or for trial … [unless] substantial need” • Questions • Briefly summarize Hickman v Taylor • What discovery device, if any, did Fortenbaugh use to secure statements from the survivors? • If petitioner sent the tug owners interrogatories requesting detailed summaries of any witness statements, would such discovery be barred by the reasoning in Hickman? Would it be barred by FRCP 26(b)(3). • Yeazell pp. 488ff Q1 • Yeazell pp 495ff Q1, 3, 4b-d, 5