Outline - Civil Procedure - IX - Discovery

Civil Procedure (2005-2006)

IX. DISCOVERY

A. Rule 26(b)(3) – Work Product Protection

1. Opinion WP – May not discover impressions, opinions, or theories of attorney, unless there is extreme need and hardship:

a. probably never in cases for which WP was created

b. case-by-case determination whether the protection is overcome in subsequent litigation where opinions in WP are at issue

c. Holmgren v. State Farm Mutual Automobile Insurance Co. – Opinion WP may be discoverable and admissible where mental impressions are at issue in case and need for material is compelling

2. Ordinary WP – May discover other material prepared in anticipation of litigation only if there is:

a. substantial need (ordinary wear-and-tear on witness memories are not substantial need), and

b. undue hardship to obtain by other means

3. Hickman v. Taylor – Where counsel for plaintiff could have interviewed witnesses himself, cannot ask for copies of written statements from defense counsel.

B. Attorney-Client Privilege

1. Elements

a. Communication

b. Between client (or potential client) and lawyer (or lawyer’s representatives)

c. Without presence of others

d. For purpose of obtaining legal advice (not for purpose of committing crime or tort)

2. Only applies to communication, not facts

3. Privilege belongs to client, who can waive it

C. Attorney-Client Privilege for Corporations – Communications between attorney and employees is [Upjohn Co. v. United States – Corporation which policed itself not required to relieve IRS of its job]:

1. Needed for attorney to give legal advice to corporation

2. About information within scope of employee’s employment

3. Understood by employee to be for the purpose of legal advice to corporation

4. Understood by employee to be confidential

D. Other Privileges

1. Doctor-patient

2. Priest-penitent

3. Husband-wife

4. etc.

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