Scope of FRCP 26(b): Is it discoverable?

FRCP 26(b)(1): FRCP 26(b)(2)(C):FRCP 26(b)(5)FRCP 26(b)(3): FRCP 26(c):

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.

For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.

Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.Discovery can be limited by the court if: Discovery sought is unreasonably cumulative or duplicative;

Discovery sought is obtainable from some other source that is more convenient, less burdensome, or less expensive;

The burden or expense of the proposed discovery outweighs its likely benefits.

For policy reasons, protection applies even if information sought is relevant to litigation. Common privileges: Attorney-client, Physician-patient, 5th Amendment

General requirements: Communication must have been made with an expectation of confidentiality; Confidentiality is essential to a socially approved relationship; and Confidentiality has not been waived by disclosure to persons outside of the relationship.

Privileges can be waived: Only by the holder of the privilege (or his agent)

By disclosure to third parties.

Intentional, inadvertent and implied waiver.Trial Prep. & Work Product: Are protected from discovery and need not be produced EXCEPT: When the information contained in such materials is not reasonably available from any other source. NOT A PRIVILIGE.

To come within the qualified immunity from discovery, three tests must be satisfied. The material must be: Documents and tangible things prepared in anticipation of litigation. To be protected, documents must be primarily concerned with legal assistance. Subjective belief/objectively reasonable. Doctrine applies to parties and their agents.

To avoid application of the doctrine, a party must show: That there is no reasonable alternative source for the same or substantially equivalent information and That the party has a substantial need for the information.

If protection is overcome, attorneys mental impressions and legal evaluations need not be disclosed. Party and witness statements are discoverable by person making the statement. Waiver of protection occurs if protected document is disclosed to another party prior to trial.

Protective Orders: Upon a showing of good cause, court may enter an order to protect a person from annoyance, embarrassment, oppression or undue burden or expense.

Good cause is established by factual evidence, not conclusory statements.

Party requesting the protective order has the burden of showing good cause for same.

Court has to balance importance of the information sought to be discovered against its propensity for annoyance, embarrassment, oppression or undue burden or expense.

Testifying Experts FRCP 26(a)(2)Non-Testifying ExpertsFact Witnesses

90 days before trial must disclose identity and expected testimony and FRCP 26(a)(2)(A) list. FRCP 26(a)(2)(C): Witnesses Who Do Not Provide a Written Report Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state: The subject matter on which the witness is expected to present evidence under FRE 702, 703, or 705; and A summary of the facts and opinions to which the witness is expected to testify.

Trial-Preparation Protection for Draft Reports or Disclosures: FRCP 26(b)(3)(A) and FRCP 26(b)(3)(B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses: FRCP 26(b)(3)(A) and FRCP 26(b)(3)(B) protect communications between the party's attorney and any witness required to provide a report under FRCP 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications: Relate to compensation for the expert's study or testimony; Identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or Identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed. Limited discovery only upon a showing of exceptional circumstances or

FRCP 35(b): Party upon whom a FRCP 35 exam was conducted waives nondisclosure of its non-testifying experts because it requested a copy of the examiners report. Mandatory disclosures FRCP 26(a)(3)(A)