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WHERE WE ARE & WHAT WE’RE DOING

WHERE WE ARE & WHAT WE’RE DOING. Pleading Pre-trial Discovery Resolution without Trial Trial & Post-trial Appeal. DISCOVERY Adversary Cultures. Seamy Underside of Practice Different practice settings Effects of Discovery Abuse Clients Lawyers The Teaching Challenge

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WHERE WE ARE & WHAT WE’RE DOING

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  1. WHERE WE ARE & WHAT WE’RE DOING • Pleading • Pre-trial • Discovery • Resolution without Trial • Trial & Post-trial • Appeal

  2. DISCOVERYAdversary Cultures • Seamy Underside of Practice • Different practice settings • Effects of Discovery Abuse • Clients • Lawyers • The Teaching Challenge • Understand strategic uses/abuses • Not communicate that is how to behave

  3. DISCOVERYEnsuring Compliance • Tension • Rules make attorneys responsible for discovery • Ideally, keep judges out • But judges key to compliance • Prevention • judicial supervision • Deterrence • sanctions

  4. DISCOVERYPrevention • Limits on discovery • Relevance, FR 26(b)(1) • Quantity, FR 30(a)(2)(A), FR 33(a) • Judicial Supervision • FR 26(f) Conference • FR 16 Pretrial conferences • Obligation of Attorneys • FR 26(g) Signature = certification

  5. DISCOVERYDeterrence • FR 26(c) Protection orders • Procedure • Motion • Certificate conferred • Standard • “Good cause shown”

  6. DISCOVERYDeterrence • FR 37(a) Motion to Compel • Procedure 37(a)(2) • Motion • Certificate conferred • Standard • If deponent or party fails to make disclosure/answer question

  7. DISCOVERYChudasama, p. 549 • Why reviewable? • Is this a final order? • Interlocutory order • 28 U.S.C. 1292(b) • “controlling question of law • “substantial ground for difference of opinion” • “substantially advance termination of litigation”

  8. DISCOVERYChudasama, p. 549 • Scope of appellate review? • Motion to compel • Imposition of sanctions • “Abuse of discretion”

  9. DISCOVERYChudasama, p. 549 • According to 11th Cir. • What did trial court do wrong? • Why are those actions “abuse of discretion”?

  10. DISCOVERYChudasama, p. 549 • What did the lawyers do wrong?

  11. DISCOVERYChudasama, p. 549 • “Self-help” • Why shouldn’t def comply until judge rules?

  12. DISCOVERYChudasama, p. 549 • Trial ct judge • 80+ • 25 page order • Remand order “Reassign to different case” • What should new judge do?

  13. TAKEAWAYS • Black Letter Law • FR 26(g) Signature = certification • FR 26(f) Conference • FR 26(c) Protection orders • Parties must confer • FR 37(a) Motion to compel • FR 37 (b) Failure to comply - sanctions

  14. TAKEAWAYS • Big theme • Tension between • Open discovery v. • Adversary system • Creating incentives for lawyers to behave

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