Questions on the Scope of Discovery and the Work-Product privilege
R. 26(b)(1)-(2)

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).

According to the attorney-client privilege communications (not the facts communicated) are privileged
    if made between privileged persons (which includes a client, a prosepctive client, a lawyer, agents facilitating the client's communiation, and agents facilitating the lawyer's representation)
    in confidence (that is with the reasonable belief that no one will learn of contents of the communication except a privileged person)
    for the purpose of obtaining or providing legal assistance

With this in mind, consider the following:

1) Your client tells you that he looking the other way when he drove into the plaintiff. Your client receives an interrogatory asking whether he said to you that he looking the other way. Does your client have to answer the interrogatory?

2) Your client tells you that he was he looking the other way when he drove into the plaintiff. Your client receives an interrogatory asking whether he was he looking the other way. Does your client have to answer the interrogatory?

3) Your client tells you that he was he looking the other way when he drove into the plaintiff. Subsequently he credibly tells you that he was not actually looking the other way at that moment, but when he said he was he looking the other way, he was feeling guilty because he had done so about 20 second before the accident. Your client receives an interrogatory asking whether he said to you that he was looking the other way when he drove into the plaintiff. Does your client have to answer the interrogatory?

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 attorney and a statement was drawn up. Is there any way that D can get X’s statement 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?

8. 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?

9. The plaintiff serves you with a document request asking for an unsolicited letter you received from a witness. May you refuse to turn it over under 26(b)(3) and/or Hickman?

10. You are being sued for negligence in connection with a car accident. The plaintiff serves you with a document request asking for
–    Witness statements taken by your lawyer a year ago – only a few hours after the accident
–    Your lawyer’s notes on the interviews with the witnesses
Does the Work Product Privilege apply?

11) An insurance claims adjuster for D measured the tire skid marks on the road after the accident between P and D. The police report also had a measurement of the marks, but P thinks they are wrong. D claims that the police report is right. P asks in discovery for the insurance claims adjuster’s report from D. Is the material work product privileged? Should the privilege be overcome? Assume that D thinks the insurance claims adjuster's measurements are right. Could P get the adjuster's measurements simply by asking D the length of the skid marks?

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 of 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

Impeachment evidence

3. P is going to testify about the extent of his injuries due to D’s negligence. May D request in discovery whether P has had any prior convictions for perjury?May P request in discovery any surveillance tapes that D may have made of P after the accident?


Sanctions

1. D . . .
–    did not turn over disclosure materials
–    made frivolous discovery requests
–    and illegitimately refused to turn over materials that were within the scope of your discovery requests
What do you do?