1. Is the fact that material requested in discovery is hearsay and so inadmissible at trial a legitimate reason to object to it?
2. What are other reasons besides privilege that one might legitimately use to object to divulging materials during discovery?
The Attorney-Client Privilege
In understanding the work-product privilege, it is important to
distinguish it from the attorney-client privilege. The following is a
basic outline of the attorney client privilege (which, you should
remember, can vary in its details between federal and state law and
from state to state).
The Work-Product Privilege/Hickman v. Taylor/R. 26(b)(3)
1. One reason for the work-product privilege is the worry that, without it, the lawyer's trial strategies will be divulged. Is that the only reason?
2. Keep track of when material is never discoverable under R. 26(b)(3) and when it is discoverable upon a showing of substantial need.
3. Let's say that an interrogatory asks for the names of the people that the defendant or his lawyer has interviewed in anticipation of litigation and whether any reports were made. Is this material subject to the work-product privilege?
4. Let's say that the an interrogatory asks for all the facts concerning the case that a defendant or his lawyer has been able to glean from interviews with witnesses prepared in anticipation of litigation. Is this material subject to the work-product privilege?
5. Let's say that an interrogatory asks a lawyer to put in his own words what was said in an interview with a witness that was prepared in anticipation of litigation. Is this material subject to the work-product privilege in R. 26(b)(3)?
6. A witness, X, who is friendly to the D was interviewed by P’s
and a statement was drawn up. Is there any way that D can get X’s
despite the fact that it is work-product?
7. A witness you interviewed said that your client was looking the other way when he drove into the plaintiff. You write it up in a witness statement. The plaintiff requests the statement in a document request. May you claim that it is work product under 26(b)(3) and/or Hickman? If an interrogatory asks your client whether he was looking the other way when he drove into the plaintiff, may he refuse to answer on the basis of 26(b)(3) and/or Hickman?
The plaintiff serves you with a document request asking for witness
statements drafted by a private investigator retained by your client
prior to hiring you, when he was worried that he might be sued. May you
refuse to turn it over under 26(b)(3) and/or Hickman?
Experts and R. 26(b)(4)
1. How do the federal rules treat experts who will testify at trial and those who won't differently?
2. You give an expert you will call as a witness at trial a piece
work product to use in determining his opinion.
Is the material discoverable without a showing of substantial need? Would it make a difference if the expert was not testifying
3. P is going to testify about the extent of his injuries due to
negligence. May D request in discovery whether P has had any prior
for perjury?May P request in discovery any surveillance tapes that D
have made of P after the accident?