Civil Procedure

Maranville

Problem Set # 28 Discovery: Work Product Yeazell, pp. 44 !444 Q.2. At the time of Hickman, Rule 26 did not deal specifically with the topic of trial preparation materials. It now does. Read Rule 26 !" #" and answer the followin$ %uestions& Q.2.a. 'oes the doctrine apply to nonlawyers, such as insurance ad(usters and investi$ators) A. Rule& *he first sentence of Rule 26 !" #" specifies that the rule +protects documents and tan$i!le thin$s . . . prepared . . . !y . . . that party,s representative includin$ . . .-a host of nonlawyers."./ Conclusion& 0es, the doctrine applies to non1lawyers. Q.2.!. 2hat if a party or witness ma3es a written statement to the lawyer) Is that discovera!le) A. Rule& 4nder the second para$raph of Rule 26 !" #", a party or witness can automatically $et a copy of their own statement if it,s one they si$ned or otherwise approved", su!section A, or if it,s su!stantially ver!atim recordin$, su!section 5. 6therwise, it,s protected wor3 product and discovera!le only on a showin$ of +su!stantial need/ and +undue hardship./ Conclusion& 'iscovera!le Q.2.c. 2hat a!out factual information, as opposed to mental impressions7is that undiscovera!le if the facts were uncovered !y a lawyer) A. Rule& Hickman doesn,t protect any +material non1privile$ed facts/ 0ea8ell pp. 992" and Rule 26 !" #" applies only to +documents and tan$i!le thin$s/, not the underlyin$ facts. Conclusion& 'iscovera!le Q.2.d. 4nli3e privile$es, which are a!solute unless waived, trial preparation material is sometimes discovera!le& 2hen) A. Rule& 4nder Rule 26 !" #" trial preparation materials are discovera!le only when the party see3in$ discovery shows +su!stantial need of the materials/ and an ina!ility +without undue hardship to o!tain the su!stantial e%uivalent of the materials/ sou$ht.

Civil Procedure

Maranville

Q.#. Most of the followin$ pro!lems deal with the variations on these themes. 2or3 throu$h the pro!lems the see how Rule 26 applies in liti$ation settin$s. :tart with a routine settin$. P was in(ured when struc3 !y a !us owned !y B 5us Co.; P then sued B. *he liti$ation raises the followin$ discovery issues& Q.#a. Immediately after the accident, a vice president of 5 went to the scene and made a full investi$ation, includin$ interviews with witnesses to measurements of the accident location. <e then made a written report to the directors of 5. Can P o!tain the report) 2ould it ma3e any difference if 5 has a claims department and the vice president is +attached/ to that department) :ee Ra3us v. =rie1>ac3awanna Railroad, ?6 @.R.'. A9B :.'.C.0. AD??" employeesE accident reports to claims department are discovera!le"; :pauldin$ v. 'enton, 6F @.R.'. #92 '. 'el. AD?B" marine surveyorsE report, made in re$ular course of !usiness without attorneyEs le$al eGpertise when insurers were tryin$ to find out a!out unusual accident, is discovera!le. A. Rule& Rule 26 !" #" applies to +documents and tan$i!le thin$s . . . prepared in anticipation of litigation./ Application& <ere, the report was prepared for the !oard of directors, so for a purpose other than +in anticipation of liti$ation/. Insurers initially ar$ued that claims departments were preparin$ their reports in anticipation of liti$ation, !ut that ar$ument has !een re(ected on the $rounds that the ordinary !usiness of an insurance company is to pay valid claims without the need for liti$ation. :ee AD?H Advisory Committee Cote, :u!division !" #", para$raph #. :upp. p. ?B" Conclusion& 'iscovera!le Q.#.!. *hrou$h the eGpenditure of more than IAH,HHH, 5,s attorney has uncovered another eyewitness to the accident. P serves an interro$atory as3in$ for the names of all eyewitnesses, and 5 o!(ects on the $round of +trial preparation materials./ Must 5 disclose the witness, name) A. Rule& Rule 26 !" #" protects +documents and tan$i!le thin$s/, not information. Application& *he name of an eyewitness is not a +document/ or a +tan$i!le thin$/. Cothin$ in the rule eGpands its protection (ust !ecause a party has incurred si$nificant costs in locatin$ information. Conclusion& Clearly discovera!le; mere investment in information does not create a wor3 product protection. Q.9. In Hickman, @orten!au$h interviewed the witnesses and too3 notes !ut apparently did not as3 the witnesses to write out statements or tape1record the witnesses, statements. Many lawyers will do so in order to have a !asis for su!se%uent eGamination or impeachment of the witness. Are such statements discovera!le) :ee Rule 26 !" #". Q.9.a. 5oris is seriously in(ured in an automo!ile accident with Charles. In the hospital 5oris is visited !y an investi$ator for :tate @arm Insurance Co., which had insured

Civil Procedure

Maranville

CharlesEs car. 5oris thin3s he $ave a videotaped statement to the investi$ator and 3nows that he tal3ed to the investi$ator a!out the accident. As attorney for 5oris, a" can you find out whether 5oris $ave a statement); !" if so, can you o!tain a copy of the statement !efore 5orisEs scheduled deposition neGt month); and c" if 5oris did not $ive a statement, can you find out what he told the investi$ator) A. Question ?& Rule& 4nder Rule 26 !" #", para$raph 2, a party may o!tain a si$ned or ver!atim statement. Cothin$ in the Rule allows a party to hide information concernin$ whether a party has made a statement. Application& 5oris should !e a!le to find out whether he has made a statement in order to ma3e a demand for the statement as permitted under Rule 26 !" #". JCote& Althou$h 5oris seems to have an immediate ri$ht to the statement, a court mi$ht $rant a protective order to delay production on the theory that this will preserve Charles, a!ility to impeach 5oris if 5oris,s story chan$es. *he AD?H Advisory Committee Cote :upp. p. ?6" su$$ests that such protective orders are availa!le. Any information 5oris $ave the investi$ator would !e relevant and not privile$ed; mental impressions of the investi$ator would !e protected. Courts will sometimes ma3e an in camera inspection of the document in such cases in order to ma3e a rulin$ a!out what portions must !e disclosed. Q.9.!. In 5orisEs suit a$ainst Charles, @ran3, a friend of 5oris, will testify on his !ehalf. @ran3 $ave a written si$ned statement to CharlesEs attorney !ut does not remem!er what he said. As attorney for 5oris, can you o!tain the statement) <ow) A. Rule& 4nder Rule 26 !" #" trial preparation materials prepared in anticipation of liti$ation are protected from discovery, !ut a witness may o!tain a copy of his or her own statement.. A party may o!tain trial preparation materials upon a showin$ of +su!stantial need/ and ina!ility to o!tain the su!stantial e%uivalent without +undue hardship./ Application& As attorney for 5oris, I can as3 @ran3 to re%uest a copy of his statement, and $ive it to me. Assumin$ that the statement was si$ned, or recorded ver!atim, he will !e entitled to o!tain a copy of it. Q.B. 2hat does it ta3e to overcome a claim of wor3 product) <ow special must the circumstances !e) Q.B.a. *ry first two variations on the facts of Hickman. 2hat if @orten!au$h had interviewed the crew mem!ers in the hospital, and they had died !efore $ivin$ their testimony) A. Rule& 4nder Rule 26 !" #" trial preparation materials prepared in anticipation of liti$ation are protected from discovery, !ut a witness may o!tain a copy of his or her own statement.. A party may o!tain trial preparation materials upon a showin$ of +su!stantial need/ and ina!ility to o!tain the su!stantial e%uivalent without +undue hardship./

Civil Procedure

Maranville

Application& It,s unclear from the pro!lem whether @orten!au$h too3 si$ned or ver!atim statements, or whether he merely interviewed the witnesses and too3 notes. If the former, see Question 9.!. In any event, as to the plaintiffs, !oth statements and notes are covered trial preparation material. Plaintiff will ar$ue that su!stantial need and undue hardship !ecause the witnesses are no lon$er availa!le. *his is a compellin$ case for discovery& the witnesses would !e unavaila!le, the information not li3ely availa!le throu$h other means and very important. Q.B.!. 2hat if the crewmem!ers were still alive !ut there had !een no pu!lic hearin$ on the accident, and the witnesses claimed not to !e a!le to remem!er events clearly) A. Rule& :ame as Question B.a. Application& :ame issue, !ut less compellin$. *he fact that the witnesses claim not to remem!er may su$$est that si$nificant time has passed. If so, does plaintiff,s tardiness in investi$atin$ provides the 3ind of hardship the Rule has in mind) Ar$ua!ly, the fact that the plaintiff has not ta3en the initiative shouldn,t lead to disclosure of wor3 product. Q.?.a. Recall that Hickman re(ected the claim that the crewEs conversations with @orten!au$h came under the attorney1client privile$e. =Gplain why, under Upjohn, the tu$!oat company in Hickman mi$ht have had a stron$er ar$ument for privile$e. And recall that privile$e, unli3e trial preparation protection, cannot !e pierced !y a showin$ of need. Privile$e, unless waived, is a!solute. A. Rule& *he court in Hickman said that the attorney1client privile$e does not eGtend to an attorney,s interviews with witnesses. *he Upjohn court eGtended the privile$e to an attorney,s consultations with middle1 and lower1level employees of a party. Application& Presuma!ly the four survivin$ !ar$e crew mem!ers interviewed in Hickman v. Taylor were employees of the defendant !ar$e owner. If so, their communications with the lawyer would seem to !e protected !y attorney1client privile$e under Upjohn. Q.?.c. As a review of this section, consider the facts of <ic3man after 4p(ohn. 2hat new ar$ument a$ainst disclosure of the interview notes does @orten!au$h now have) At one point in <ic3man, in eGplainin$ why plaintiffEs lawyer cannot have @orten!au$hEs notes, the Court points out that the plaintiffEs lawyer can simply interview the survivin$ crewmem!ers himself. <ow is this ar$ument complicated after 4p(ohn) @inally, does anythin$ in <ic3man or 4p(ohn prevent plaintiffEs lawyer from deposin$ the crewmem!ers) 2hy not) Question A2& Rule& :ee Question ?.a. Application& 'efendant can ar$ue that the crew is now @orten!au$h,s +client/ for purposes !oth of the privile$e and for the !ar on direct contact with a represented client.

Civil Procedure

Maranville

*he plaintiff could of course depose the crew, !ut that would !e !oth more eGpensive and more formal.