Discovery Discovery– parties may discovery any nonprivileged matter that is relevant to any party’s claim or defense. Relevant information does not have to be admissible at trial; material is discoverable as long as it appears reasonably calculated to Rules 26-37 lead to the discovery of admissible evidence. Purpose Finding out about the suit discover favorable and unfavorable information – Freezing harmful evidence Statements made in deposition can be used to impeach the credibility of witnesses if they testify later to it – need to be adept at getting witnesses to give details answers. Preserving evidence and putting it in useable form e.g. taking deposition of expert witness who be at trial can’t Scope of Discovery Relevant Information: the information need not be admissible as evidence at trial but reasonably calculated to lead to admissible evidence. It does not need to certainly lead to admissible evidence. However, it is not enough that the information is tangentially related or unlikely to lead to possibly admissible evidence. The information cannot be privileged information. Certain privileges attorney client, doctor patient, husband wife, priest, etc. – In order to determine whether to limit discovery on certain information, the court employs a balancing test between the harm caused by the discovery and the need for the information Limits on discovery The information cannot be cumulative, repetitive, or unduly burdensome. The party had ample opportunity to gather the information by other means. Court weighs whether the benefits that could come from the information do not outweigh the burden of gathering the information. Work Product: product/trial preparation materials are usually protected. It could be attorney’s work material prepared by the party, their attorney or representatives in This is NOT a anticipation of litigation. full privilege. Escape valves: if the discovering party shows there is substantial need AND undue hardship, the court the information to be discovered. may allow Courts will protect work product, but will sometimes allow answers to questions to “opinion” be discoverable. Policy reasons for our discovery Avoids trial by ambush Permits access to facts of the case Promotes merits resolution over technical dismissals
Discovery Discovery– parties may discovery any nonprivileged matter that is relevant to any party’s claim or defense. Relevant information does not have to be admissible at trial; material is discoverable as long as it appears reasonably calculated to lead to the discovery of admissible evidence. Rules 26-37 Purpose Finding out about the suit – discover favorable and unfavorable information Freezing harmful evidence Statements made in deposition can be used to impeach the credibility of witnesses if they testify later to it – need to be adept at getting witnesses to give details answers. Preserving evidence and putting it in useable form e.g. taking deposition of expert witness who can’t be at trial Scope of Discovery Relevant Information: the information need not be admissible as evidence at trial but reasonably calculated to lead to admissible evidence. It does not need to certainly lead to admissible evidence. However, it is not enough that the information is tangentially related or unlikely to possibly lead to admissible evidence. The information cannot be privileged information. Certain privileges – attorney client, doctor patient, husband wife, priest, etc. In order to determine whether to limit discovery on certain information, the court employs a balancing test between the harm caused by the discovery and the need for the information Limits on discovery The information cannot be cumulative, repetitive, or unduly burdensome. The party had ample opportunity to gather the information by other means. Court weighs whether the benefits that could come from the information do not outweigh the burden of gathering the information. Work Product: attorney’s work product/trial preparation materials are usually protected. It could be material prepared by the party, their attorney or representatives in anticipation of litigation. This is NOT a full privilege. Escape valves: if the discovering party shows there is substantial need AND undue hardship, the court may allow the information to be discovered. Courts will protect “opinion” work product, but will sometimes allow answers to questions to be discoverable. Policy reasons for our discovery Avoids trial by ambush Permits access to facts of the case Promotes merits resolution over technical dismissals
hoffcivprofall2012.docx