Pc Week 8

Front 1

DISCOVERY:
FRAMEWORK OF TEXAS DISCOVERY

When does discovery start in Texas?

Back 1

Pretrial

Front 2

What are the three questions to ask when you are looking at a whether to impose discovery sanctions?

Back 2

1. Was there a duty to preserve the evidence?

2. Was the failure to preserve negligent or intentional?

3. Was is prejudicial (Was there harm)

4. To what extent did the breach prejudice the non-spoliator? (helps pick good sanction)

Front 3

How do you punish or seek sanction s for breeching the duty to preserve evidince?

Back 3

iv) Duty to Preserve Evidence (Arises pretty far pre-trial)

(1) There is no independent tort for evidence spoliation

(2) The issue must be brought forth in the cause of action that was adversely effected by the spoliation

Front 4

(5) When does the dutyto preserve evidence arise? (helps w/ Question 1)

Back 4

(a) (The Standard) Duty arises when
(i) a person
(ii) knows, or rzbly should know,
(iii) there is a substantial chance that litigation may arise; and
(iv) evidence in its possession or control will be material or relevant

Front 5

What are the components to whether someone knows or souuld have known there was a substantial chance of litigation?

Back 5

(b) Has both objective and subjective component – either one is sufficient.
(i) A rzbl person would foresee litigation; litigant actually did foresee likely litigation

Front 6

What does the duty to preserve evidence include?

Back 6

(6) What does the duty include: (helps w/ Question 2 – it’s easy – it includes producing the evidence)
(a) Duty to preserve evidence litigant knows or rzbly should know is relevant to the litigation
(b) It’s a subjective determination – what I think could rzbly be relevant or that I rzbly foresee could lead to the discovery of relevant evidence.
(c) Always err on the side of preservation

Front 7

How is the degree of prejudice important?

Back 7

(a) If no prejudice, no remedy.
(b) But generally, remedy should be proportionate to combo of prejudice and culpability.
(i) The more culpable the conduct, the more likely it was done b/c it was harmful.
(ii) Of culpability is low, then we’d like to make sure it hurt someone b4 we punish.

Front 8

What are some remedies for discovery abuse

Back 8

(8) Remedies:
(a) Spoliation Instruction:
(b) Denial/Striking of certain witnesses or certain testimony thereof.
(c) Judgment as a matter of law as to certain elements
(d) Monetary sanctions
(e) Striking evidence that would contradict the spoliated evidence, to level playing field.
(f) Death Penalty Sanctions (striking pleadings)

Front 9

Can the court go straight to death penalty sanctions?

Back 9

NO.

Trial court MUST CONSIDER lesser sanctions b4 going to death penalty sanctions
(ii) And generally, it must also try the lesser sanctions; but there are exceptions
(iii) If the party’s conduct is truly egregious, such as intentional destruction after warning, death penalty sanctions at the outset might be warranted.

Front 10

What kind of spoliation instructions are there?

Back 10

Depending on the culpability of the breach and the prejudice it creates, the court may submit one of two instructions:
 (A) Rebuttable Presumption (more severe)
 Ct instructs jury that the spoilating party destroyed the evidence
 Jury should presume that the destroyed evidence was unfavorable on the particular fact that the evidence would have supported and the burden shifts to the D to negate the presumption
 The spoilating party bears the burden to disprove the presumed fact

 (B) Adverse Presumption
 Merely an adverse presumption that the evidence would have been unfavorable to the spoilating party
 The presumption has probative value
 It does not relieve the non-spoilating party of the burden of proving each element of its case

Front 11

Are sanctions levied against the client or the atty?

Back 11

(9) Note: If your client refuses to comply, sanctions can be leveled against you as att’y
(a) So if you have a client that’s going to be difficult on this, best to withdraw fast!

Front 12

What is the balancing test in deiding upon which sanction to use?

Back 12

It a balancing between the cuplpability and the amount of prejudice or harm.

Th egreater the prejudice, the less culpability you have to show to get sanctions

Ex. if can show in BF then we can presume prejudice.

Ifa result of negligence, then non spoliator also has to sho how th evidence harmed them .

Also, bf will be heavier if BF

Front 13

What are the formal forms of discovery?

Back 13

v) Forms of (Formal) Discovery
(1) Rule 192.1
(a) Requests for disclosure
(b) Requests for production and inspection of documents & tangible things
(c) Requests foe entry upon real property
(d) Interrogatories to a party
(e) Requests for admissions
(f) Oral/Written depositions
(g) Motion for mental/physical examination

(2) You can use more than one type of discovery tool in a single document

Front 14

What does possession, custody, or control mean?

Back 14

(b) Possession, custody, or control of an item means that the person either
(i) has physical possession of the item or
(ii) has a right to possession of the item that is equal or superior to the person who has physical possession of the item.

Front 15

(c) A testifying expert is

(d) A consulting expert

Back 15

(c) A testifying expert is an expert who may be called to testify as an expert witness at trial.
(d) A consulting expert is an expert who has been consulted, retained, or specially employed by a party in anticipation of litigation or in preparation for trial, but who is not a testifying expert.

Front 16

vi) Discovery Control Plans and Modification

Back 16

(3) If you foresee discovery taking a long time, account for it in the discovery plan.
(a) Plead lvl 3 discovery
(b) Ask the other attys to agree to a Rule 11 agreement to extend the discovery deadline

(4) Rule 11 agreements: Often used to modify terms of a level 2 or 3 discovery procedure
(a) Must be in writing (or oral, on the record in open court), signed by the party against whom it is to be enforced, and filed
(i) Don’t have to file until you want to enforce it—can wait ‘til breach to file, if you want.

Front 17

Can oral statements in a deposition create rule 11 agreements and be binding on parties?

Back 17

Oral statements in deposition can’t create a Rule 11 agreement, but they can be binding as they relate to that deposition.

Front 18

When does level 2 discovery end?

Back 18

(b) The discovery period ends the EARLIER OF:
(i) 9 months AFTER the EARLIER OF:
1. the DUE DATE OF THE first response to written discovery, or
2. the date of the first oral deposition;

OR

(ii) 30 days prior to trial.

Front 19

When does a level to discovery period begin?

Back 19

When suit is filed?

Remember mailbox rule in Texas:

Something is filed with the clerk when it is deposited in the mail on or before the last day for filing if received not more thatn 10 days tardy.

Front 20

What is the expert designation deadline in Level 2 discovery?

Back 20

(a) Expert designation is THE LATER OF:
(i) 30 days after request for disclosure is sent; or
(ii) Either:
1. testifying experts of a party seeking affirmative relief: 90 days before discovery period ends
2. all other experts: 60 days before discovery period ends

Front 21

In Texas, what does a pre-trial conference consist of and is it mandatory?

Back 21

No. it is not mandatory but the court in its discretion may direct the attorneys to have a pre-trial conference and order a pre-trial scheduling order that discusses:

(a) Most typical elements of a pre-trial scheduling order:
(i) Designation of experts deadline (required);
(ii) Whether experts must produce reports;
(iii) List of persons w/ knowledge of relevant facts;
(iv) List of trial witnesses (who you rzbly anticipate calling, subset of (iii));
(v) Deadline for written discovery requests/amended or supplemental answers;
(vi) Discovery cutoff date;
(vii) Deadline for amendment of pleadings;
(viii) Deadline for dispositive motions;
(ix) Deadline for 702 motions/Daubert motions;
(x) And much, much more!

Front 22

what is level 1 discovery?

Back 22

(7) 190.2 – Level 1 discovery
(a) Amt in controversy <= $50,000
(b) Primary limitation –hrs of deposition time – 6 hrs, up to 10 hrs by agreement of parties

Front 23

What is the max deposition time in a level 2 discovery?

Back 23

You get to examine the opposite side for a total of:

(a) Max 50 hrs depo time,

BUT you get 6 hours for each expert over 2 that the opposing party designates.

(b) Default unless agreed to more or by leave of court

Front 24

How many interrogatories may be served in a level 2 discovey plan?

Back 24

25 written interrogatories excluding interrogatories adking a party only to eid or authenticate specific documents.

each subpart of a question is considered a seperate question.

Front 25

What is a level 3 discovery plan?

Back 25

Write your own but msut include:

(i) Trial date
(ii) Discovery cutoff date
(iii) Appropriate discovery limits
(iv) Deadlines to join addt’l parties (not clear if this applies to designating RTPs)
(v) Amending pleadings,
(vi) Expert designations

Front 26

Is there a formal order or sequence you have to go through in the discovery process?

Back 26

Nope. you can go straight to deposiions.

Front 27

When can a court modify the discovery plan?

Back 27

(10) 190.5 – modification of discovery plan
(a) What if opponent waits right to the end of dealine and amends?
(b) If you’re “disadvantaged,” the court must allow modification if interest of justice requires.

(c) i.e.
(i) New pleading that results in unfair prejudice; or
(ii) Matters that have changed materially after discovery cutoff, if trial is > 3 months from end of discovery period

Front 28

Do depostition limits apply to depos before suit?

Back 28

No.

(11) 190.6 – certain types of discovery excepted
(a) Pre-litigation discovery tool, prior to filing
(b) Limits on hrs of depos, etc. do not apply to 202

Front 29

(12) 191.1- modification procedures

Back 29

(12) 191.1- modification procedures
(a) Unless prohibited by law, parties can make Rule 11 agreement (or, regarding a depo, can make it on the deposition to which it applies) to change discovery procedures/plan. Or judge can do it sua sponte.

Front 30

Does a party's production of a document in response to written discovery authenticate the document?

Back 30

NO!

A production of a document is response to written discovery is authenticated only after the producing party has actual notice that the document will be used -- YOU HAVE TO GIVE NOTICE THAT YOU ARE GOING TO USE THE DOC.

Once a party receives notice, they have 10 days to object to its authenticity of the doc or any part of it. -- must be on the record or in writing and must have gf factual or legal basis.

If objection is made the party seeking to use the document myst be given a reasonable opp to establish its authenticity.

vii) Discovery B/t Parties
(1) 193.7
(a) Have as one of your pre-trial checklist items.
(b) Send notice to opponent that I intend to use the documents he gave us in discovery.
(c) If lots of documents, don’t use a general letter. Tell him which documents.

Front 31

When does the court HAVE to issue a scheduling order?

Back 31

It MAY sua sponte or it MUST on the request of a party.

Front 32

What are the tools for discovery between the parties?

Back 32

(a) Requests for Production –
(b) Requests for Inspection – t
(c) Interrogatories
(d) Requests for Admissions
(e) Request for Disclosure (TX only)
(f) Request for Physical/Mental Exam
(g) Deposition – (oral, or written questions) –

Front 33

(a) Requests for Production

Back 33

– requests specific documents (paper or electronic); info already in a textual form.

Front 34

(b) Requests for Inspection

Back 34

– to gain access to a relevant premises

Front 35

(c) Interrogatories

Back 35

getting answer in writing – pretty useless for getting subjective info, since it’ll just be filled out by an att’y. But, you’ll get the objective facts or contentions in the suit.

Front 36

(d) Requests for Admissions

Back 36

we set forth a statement, and ask opponent to admit it or deny it
(i) Wren suggests asking both the affirmative and negative of a question, so you’re sure to get at least one admission. Admissions can be used as evidence, denials cannot.

Front 37

(e) Request for Disclosure (TX only)

Back 37

a form set of discovery requests. No objections are allowed. Except you can object to attempted invasion of privilege.

Front 38

(f) Request for Physical/Mental Exam

Back 38

generally to examine the alleged-victim. Can only be used to get an exam of a party.

Front 39

(g) Deposition – (oral, or written questions)

Back 39

ask questions you’re curious about. Get them to admit to whatever you can manage to get. Deposition on written q’s generally are used on non-parties, rather than parties.

Front 40

who bears the cost in discovery?

Back 40

(a) Producing party has the duty to collect up the responsive documents. They must produce them at a rzbl time and place designated in the request.
(i) The producing party bears the cost of the production.
1. Identifying the right stuff;
2. Getting it together for review;
3. Reviewing it for privilege;

Front 41

Who bears the cost of copying hte documents?

Back 41

(b) Requesting party generally only bears the cost of copying the material produced.
(i) But, he also wants to keep the data in a way that’s easy to keep organized
(ii) Often this involves making electronic copies of all documents, then adding “fields”
1. Bates #
2. Date of doc
3. Type of doc
4. Title
5. Intended recipient
6. CC
7. From/Author
(iii) The coding is an expensive process! But frequently out-sourced to another country that can do it quicker and cheaper. Still, with hundreds of thousands (potentially) of documents, it’s expensive.

Front 42

What tools can we use to get Discovery From Non-Parties?

Back 42

(a) Oral deposition
(b) Written deposition
(c) Request for production of documents
(d) Request for production of documents and notice of written/oral deposition


(e) NOT requests for disclosure, examination, admissions, interrogatories, etc.

Front 43

Who bears the cost for non-party discovery?

Back 43

(a) Non-party has no dog in the fight
(b) So, why would they be required to spend so much money on production?
(c) The non-party has the right to request a shifting of the cost of production – court will generally grant it. (Non-parties can get costs reimbursed)
(d) They can also request protection from excessive cost of production in some situations

Front 44

Pre-Suit Discovery

What rules do/do not apply?


What are the reasons for allowing pre-suit discovery?

Back 44

the 50 hour limitations do not apply to pre-suit depos.


(2) Rule 202 - Pre-suit deposition procedure (you must go through the court)
(a) Two reasons they’ll let it happen:
(i) To perpetuate your client’s deposition, or that of any other person
1. (i.e. you want to preserve testimony b/c they might be unavailable later)
(ii) For investigation of a potential claim or suit (to decide if we should sue) (NOT AVAILABLE IN FED COURT)

Front 45

What is the pre-suit discovery process?

Back 45

(i) File a verified petition w/ the court
(ii) It verifies you’re pursuing a potential claim.

the court must order a deposition to be taken if it makes certain findings.

Front 46

(iii) In deciding whether or not to grant an order for presuit discovery , the court weighs:

Back 46

(iii) In deciding whether or not to grant it, the court weighs:
1. the likely benefit of the deposition against
2. the burden and expense of allowing it. (see 202.4)
(iv) Note: the burden and expense is not limited to the cost of performing he deposition, b/c that’s always going to be less than the cost of a lawsuit
1. The court weighs the rights being infringed by the deposition
2. E.g. whether trade secrets would likely be divulged

Front 47

What can pre-suit D be used for?

Back 47

(c) Can’t use a 202 deposition to go fishing, there must be a probable right to recovery
(i) Rule 202 won’t trump ordinary privileges – so if privileged info is needed to establish the need for the depo, you can’t use the depo to get the privileged into, you’re SoL. In other words, if you can’t show basis for the lawsuit, you can’t show probable right of action, and therefore can’t get a Rule 202 deposition.

Front 48

What trumps 202?

Back 48

(d) Chapter 74 trumps Rule 202 - statutes that say no pre-suit depositions win.
(e) Ordinary privileges trump Rule 202 – can’t use’em to discover privileged stuff

Front 49

(3) 202.4(a) Court MUST order a deposition if it finds that . . .

Back 49

(3) 202.4(a) Court must order a deposition if it finds that . . . The court must order a deposition to be taken if, but only if, it finds that:
(a) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or
(b) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure

(c) But the calculation must consider impinging on deponent’s rights – financial, time, trade secrets, etc. Depos have more cost than atty’s time.

Front 50

x) Informal (Ex Parte) Discovery – failure to go through the other party’s att’y

Back 50

(1) Most common in P/I litigation
(2) Big waivers for physician/patient privilege – if the claim is vs. the health care provider, e.g.
(a) E.g. when the condition is relevant to the claim or defense
(i) Opposing party has an entitlement to ex-parte discovery, but the plaintiff can’t be required to waive their entire privilege
(ii) If the doctor has info that is relevant to the claim → privilege is waived
(iii) However, for info not relevant, privilege remains intact, and no ex-parte comm. b/t the opposing att’y and the physician is allowed regarding this info

Front 51

(b) Q: is there the entitlement to go have an ex parte convo w/ π’s physician?
(i) Δ wants to say he should get to decide what’s important, incl. pre-existing condition data
(ii) Π will say, “nah, I’ll send you what’s important. Trust me.”
(iii) Who wins?

Back 51

(c) Att’ys AREN'T FORBIDDEN from going to a party’s physician ex-parte
(i) They ARE forbidden from KOWINGLY asking a non-party to divulge privileged info

(ii) Can’t suggest to a doctor that his client’s privilege should be waived.
(iii) You can talk to opposing party’s doctor, but it’s dangerous, b/c you might be accused of trying to convince him to divulge confidential stuff.
(iv) And as soon as a doctor tells you, “Sorry, I can’t talk with you” you’re DONE w/ ex parte

Front 52

(3) So, if you represent a doctor and he calls you asking if he should talk to an att’y:

Back 52

(a) Ask if he has signed a release;
(b) If so, tell him to stick strictly to the terms of the release in what he talks about
(c) If not, tell him to tell the att’y he can’t talk w/o a release.

Front 53

(4) If you represent π, and you get a HIPPA release – sign it?

Back 53

(a) Depends what it says.
(b) Sometimes it’s mandatory
(c) But always make sure it’s as narrow as humanly possible.

Front 54

What else can you do if they get ex parte docs from your doc?

Back 54

(5) Also limit production of written records to those which are no longer privileged.
(a) Try to get them filtered through your office, even.

(6) 194.2 - Requires the other party to copy any docs they secure, on their dime, and send them to you so you know what the doctor disclosed to them.

(7) Barham: In conducting ex parte discovery, don’t get yourself in trouble by doing things that violate the code of professional responsibility/ethical violation.

Front 55

Scope of Formal Discovery: Relevance

General Rule:

Back 55

(a) Anything that is NOT PRIVILEGED;
(b) Is RELEVANT TO THE SUBJECT MATTER of the pending action; and
(c) It does not have to be admissible, so long as it is REASONABLY CALCULATED TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE

Front 56

(2) Other restrictions?

Back 56

the court is obligated to reasonably restrict scope.

1. cannot be unreasonably cumulative or duplicative

2. Burden or expense should not outweigh likely benefit

Front 57

IN the context of the general scope what do we have to establish and how do we do that?

Back 57

(4) Discovery requests cannot be so broad that they unnecessarily encompass irrelevant info.
(a) The request must be NARROWLY TAILORED to reach relevant evidence

(b) That the request also fetches some irrelevant info is fine, so long as there is no more-narrow articulation that would still reach all the relevant evidence.

Front 58

What will the court consider in determining whether something is narrowly tailored?

Back 58

Time; Place; People Involved; Further tailoring;

Front 59

(5) Texaco, Inc. v. Sanderson, 898 S.W.2d 813 (Tex. 1995)

Back 59

(a) All safety reports ever written by the safety inspector on the topic of safety → too broad.

Front 60

(6) Dillard Dep’t Stores v. Hall, 909 S.W.2d 491 (Tex. 1995)

Back 60

(a) All incident reports relating to wrongful detention, arrest, and civil rights violations covering 227 stores in 20 states
(b) Too broad b/c it was seeking evidence WHOLLY IRRELEVANT TO HIS CLAIM (RACIAL DISCRIMINATION WAS NOT PLED)
(c) He was trying to “fish” for info to see if he could also assert a discrimination claim
(d) No fishing expeditions!

Front 61

(7) K-Mart v. Sanderson, 937 S.W.2d 429 (Tex. 1996)
(a) Sought “all documents which relate to, touch, or concern the allegations of this lawsuit,” all documents “reflecting the incident made the basis of this lawsuit . . .” etc.

Back 61

(b) NOT overbroad b/c the lawsuit was based on an isolated occurrence.
(c) In theory, it’s perfectly tailored, though leaves the Δ able to make the decisions.
(d) It is not a fishing expedition.

Front 62

Who has the burden in establishing how something is relevant?

Back 62

Discovering party has the burden of articulating relevancy.

Front 63

Is a lawsuit fighting over more money allowed to conduct more discovery?

Back 63

AIC is just one factor (needs of the case, aic, paries' resources, imprtance of the issues at stake in litigation and the importance of the proposed discovery)
BUT in a vacuum, more money more discovery.

Front 64

(9) How do we reasonably tailor?

Back 64

(a) Should be a tie b/t the request and the case at hand
(b) Limited in time to the period relevant in this case
(i) how long is too long? – it’s a case-by-case analysis – use logic.
(c) Limited in subject matter
(i) E.g. only ask about relevant products, like NOT TVs in a defective washing machine suit
(ii) E.g. don’t ask, in a toxic tort case, about their fire-safety procedure
(d) Limited in geographic scope
(i) To where the relevant info is likely to be found
(e) Spurious claims of relevance don’t equate to legal relevance – must truly be relevant (? From Allie’s notes – ask her)
(f) Limited to things in dispute, even if potentially relevant (? From Jennie’s notes—check)

Front 65

(10) There is also a proportionality test

(11) Limit on personnel involved:

Back 65

(10) There is also a proportionality test
(a) Must seek some sense of proportion of size of claim vs. extent of discovery.
(b) The larger and more relevant the claim, the more/broader discovery allowed

(11) Limit on personnel involved:
(a) This is a case-by-case determination
(b) Can’t say that a certain type of discovery is always or never permitted

(12) It all comes down to your ability to advocate that you reasonably tailored your request.

Front 66

Scope of Formal Discovery: Privilege or Other Protection

The Work Product Doctrine. Is it atty client privilege?

Back 66

Can fall under A/C privilege, but definitions are not co-extensive

Front 67

TRCP 192.5 Work Product.

Work product comprises:

Back 67

(a) Work product defined. Work product comprises:
(i) material prepared or mental impressions developed IN ANTICIPATION OF LITIGATION OR FOR TRIAL BY OR FOR A PARTY OR A PARTY'S REPRESENTATIVES, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents;

OR

(ii) a COMMUNICATION MADE IN ANTICIPATION OF LITIGATION OR FOR TRIAL b/t a party and the party's representatives or among a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.

Front 68

Protection of work product.

Back 68

(i) Protection of core work product--attorney mental processes. NOT DISCOVERABLE Core work product - the work product of an attorney or an attorney's representative that contains the attorney's or the attorney's representative's mental impressions, opinions, conclusions, or legal theories - is not discoverable.
(ii) Protection of other work product. Any other work product is discoverable 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 material by other means.

Front 69

When is non-core work product discoverable?

Back 69

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 material by other means

Front 70

(2) Work Product (W/P) vs. Att’y-Client Privilege (A/C)

Back 70

(a) Could have one without the other
(b) Not mutually exclusive, but not identical – they overlap.
(c) A/C but not W/P – transaction communications (not in rzbl anticipation of litigation)
(d) W/P but not A/C – att’y talks to 3d-party witness in anticipation of litigation, could be W/P

Front 71

Core W/P vs. Ordinary W/P

Back 71

(a) If it’s core W/P, it’s not discoverable, via R. 192.5(b)(1)
(b) If other W/P, can be discovered if:
(i) Substantial need; and
(ii) Unable to otherwise obtain equivalent w/o undue hardship

Front 72

Federal – distinction b/t core W/P and other W/P?

Back 72

(a) Basically, same definition
(b) In fed ct., some courts allow discovery of core W/P, but w/ high burden to prove need

TERMED fact work product and opinion work product

Front 73

Whose burden is it to plead an prove work product?

When does the work product privilege end?

Back 73

(b) Generally, it’s the burden of the one asserting the privilege to plead it and prove it.

(6) W/P privilege is perpetual—privilege doesn’t end when the case ends
(a) b/c otherwise, would be a chilling effect on lawsuits when Δ defends many similar cases;
(b) and would have motivation to drag the instant case out to wait and get notes from other case;
(c) Rule applies to core W/P and other W/P

Front 74

When does WP privilege begin?

Back 74

(7) W/P privilege begins when litigation is anticipated
(a) 2-Part test for rzbl anticipation of litigation
(i) Objective
1. Whether rzbl person, based on circs. existing at time, would believe there is a substantial chance of litigation; AND
a. (Note that π doesn’t necessarily have to manifest intent to sue, just look at all circumstances from rzbl person std)
(ii) Subjective
1. Whether the party invoking the privilege had a good faith believe that litigation would ensue. Look at the totality of the circumstances.

Front 75

Does protection need both subjective and objective prong?

Back 75

(iii) E.g. Walmart v. Johnson, reindeer fell on customer. W/P privilege would not protect the incident report b/c Walmart admitted it did not subjectively anticipate litigation.
1. But, they could protect it by writing it as a letter to their attorney – A/C privilege!

(iv) E.g. letter from other party saying “we’re going to sue you.” – that would probably create both objective and subjective anticipation. – stuff created thereafter in anticipation = W/P

(b) Both must be met, unlike duty to preserve which required only one of the two.

Front 76

(8) Attorney’s organizational system

Back 76

is also covered by the W/P
(a) What if π wants Δ’s organizational system?
(b) The organizational system might give insight into the mental impressions and thought process of the attorney preparing the case.
(c) For instance, π requests Δ’s documents currently in a database
(d) Δ can respond to discovery by dumping 8,000,000 pages of info on the little π, out of order.
(e) Π can argue substantial need b/c π can’t really get it anywhere else,
(f) And argue undue hardship b/c just to copy it all would cost $1,600,000 to copy and file it all.
(g) Essentially, it’s an argument that “Hey, I wanted X, you gave me a whole shitload of paper; I can’t even find what I requested in here. You can’t just deluge me with paper to avoid me finding out about the case. Give me your organizational strategy, too.”
(h) It’s worth a shot, I guess

Front 77

(9) Leede Oil:
(a) Document was neutral facts of an expert that was not deposed b4 he died.
(b) They argued it’s not W/P b/c it’s just basic facts, no opinions/impressions

Back 77

(c) But under current formulation of W/P, it would be W/P – neutral facts doesn’t matter – it’s “material prepared . . . in anticipation of litigation or for trial.”
(d) But, it is potentially discoverable under 192.5(b)(2) as ordinary W/P b/c:
(i) Substantial need (b/c he was the expert)
(ii) Unable to obtain subst. equivalent w/o undue hardship (man dead, can’t get it from him)

Front 78

What if part of a document is privileged?

Back 78

(10) Pittsburg Corning:
(a) Once something is privileged in a document, whole document is privileged (pre-rules case)
(b) What if there’s a field in the database called “attorney’s notes”?
(c) Sure, you could redact it, but it does indicate what facts the attorney found important enough to include in his database – insight into mental impressions/thought process

(d) This case is cited for the argument that that whole database wouldn’t be discoverable.

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Are all atty files protected?

Back 79

(12) Just b/c it’s IN attorney’s file doesn’t mean it’s automatically protected

(b) Even organization of file, even w/ redactions, would reveal mental processes → protected
(c) Request for file in its entirety is too broad; party may request specific docs, however

Front 80

(13) Marshall v. Hall:
(a) Here, court found witness statements, by order and selection of recorded material, gave insight into att’y’s thought process

Back 80

(b) Today, excerpts from witness statements are considered revealing of attorney’s thought process and is absolutely protected as core W/P

Front 81

(14) Occidental:

Is indirectly revealed arrangement of data WP?

Back 81

(a) Can’t pierce W/P as a sanction;
(b) If you can, it’s like a death-penalty sanction: can’t use w/o attempting lesser sanctions first.
(c) All the old privileges except A/C have been rolled into the W/P privilege now

(d) Whether directly revealed, or revealed indirectly based on compilation or arrangement of data, they’re both still W/P; But they do NOT receive the same level of protection.
(i) Written or other manifestation of trial strategy are granted greater protection—not absolute, but VERY narrow exceptions (e.g. offensive use doctrine)
(ii) Subject to those exceptions, protection of actual mental processes is absolute 192.5(b)(1)

(iii) Two possibilities: Direct discussion of mental process is core, but indirect revealing of mental process is not core. Or, anything that reveals mental processes is core.
1. If a compilation has everything available, it can’t reveal mental processes;
2. If there is any form of selection and organization, it reveals mental processes.

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When is substantial proof probably met?

Back 82

(i) Substantial need is probably met if the proof goes to an element of your cause of action
(i) Today, Wren says, substantial need element will probably require a lack of that info will essentially destroy your case. They’d force the person to show that the absence of the discovery would severely cripple, if not negate, the cause of action or defense.

Front 83

(16) Farmer’s Insurance:

Atty acting to investigate insurance claim - whether to pay the insured:

Back 83

(a) If material is created/found b4 rzbl anticipation of litigation, it’s not W/P
(b) If Atty is not acting as an atty, there is no A/C privilege, either.

Front 84

Illustration of difference between atty client and wp

pure recitations of fact in comm with client?

pure recitations of fact in paper prepared in anticipation of litigation

Back 84

1. AC priv

2. WP priv - but not core wp.

Front 85

(17) In re Baptist:
(a) Atty noticed for depo was hired for depo AND legal analysis of a potential claim.
(b) Thus, he claims, he’s got both A/C AND W/P privileges

Back 85

(c) The court distinguishes Farmers by saying anticipation was present and atty was hired as atty
(d) Always send document why it is that we believe suit is rzbly likely & label the docs as W/P or A/C

(e) Even when non-core W/P is involved, subject to subst need/undue hardship exception, shouldn’t order depo of atty in question where there are less intrusive means available.

Front 86

(19) So, what is non-core W/P?

Back 86

(a) Essentially, W/P that is made by someone other than the atty or atty’s representative. (core is only made by atty or atty's rep)
(b) Material prepared, mental impressions developed, in anticipation of litigation.
(c) So, first determine if it’s W/P, then ask whether it’s core

Front 87

ii) Exceptions to W/P
(1) 192.5(c) Exceptions. Even if made or prepared in anticipation of litigation or for trial, the following is not W/P protected from discovery:

Back 87

(a) information discoverable under Rule 192.3 concerning experts, trial witnesses, witness statements, and contentions;
(b) trial exhibits ordered disclosed under Rule 166 or Rule 190.4;
(c) the name, address, and telephone number of any potential party or any person with knowledge of relevant facts;
(d) any photograph or electronic image of underlying facts (e.g., a photograph of the accident scene) or a photograph or electronic image of any sort that a party intends to offer into evidence; and
(e) any W/P created under circumstances within an exception to the attorney-client privilege in Rule 503(d) of the Rules of Evidence.

Front 88

(2) In re Jimenez:

Are

Back 88

(a) Witness Statements are an exception to W/P

(b) A witness statement is:
(i) A written statement signed or otherwise adopted or approved in writing by the person making it; or
(ii) A recording of a witness’s oral statement, or any substantially verbatim transcript of that recording.

(c) If you deal w/ the insured, but don’t want the document to be a witness statement, how?
(i) You can take notes, rather than let him write it down or record it
(ii) The fact that you chose which words to record and what questions to ask will probably inject the atty thought process into the statement
(iii) Or, just the atty b/t the insured and the insurer. It renders the witness into into atty W/P

Front 89

(3) Warrantech Corp:
(a) Crime-Fraud Exception:

Back 89

(a) Crime-Fraud Exception: the A/C or W/P priv does not apply if lawyer’s services were sought to enable anyone to commit what the client knew or rzbl should have known was a crime:
(i) The party asserting must
1. Make prima facie case of contemplated (future or current) crime or fraud, and
2. Show relationship b/t the doc for which W/P is challenged and the prima facie proof
(b) Note: same exceptions to A/C apply to W/P – so Crime-fraud exception applies to A/C

Front 90

RK v Ramirez - know this shit!

In preparation for trial, Ps sought records about doctor's mental and emotional health conditions.

Doc asserts:

(a) FRE 509 – Physician-patient privilege
(b) FRE 510 – Confidentiality of mental health information

Back 90

(c) Patient-litigant exception applies to both:
(i) If the condition discussed is relevant to the claim or defense of any party, it’s waived.
(ii) But, only if the party relies on the condition—must be central to the party’s claim/defense


Court said msut be of LEGAL SIGNIFICANCE

as a general rule, a mental condition will be a part of a claim or defense if hte pleadings indicate that the jury must make a factual determination concerning the condition itself.

THE CONDITION ITSELF MUST BE OF LEGAL CONSEQUENCE!!

When a document includes some infromation meeting thsi standard, any info not meting this standard remains privileged and msut be redated or otherwise protected.

ACCESS TO MEDICAL AND MENTAL HEALTH INFO WILL BE AFFORDED THE NON-PATIENT PARTY ONLY IF THE PATIENT'S CONDITION ITSELF IS A FACT TAHT CARRIES LEGAL SIGNIFICANCE AND ONLY TO THE EXTENT NECESSARY TO SATISFY THE DISCOVERY NEED OF THE REQUESTING PARTY.

Front 91

What is the offensive use doctrine?

Back 91

when a party asserts a privilege to withold "evidence which would materially weaken or defeat the asserting party's claim.

Front 92

Trade secrets:

Back 92

(a) Trade secrets are not discoverable
(b) Unless the information is necessary for fair adjudication of the claim