1 00:00:00,040 --> 00:00:03,160 Welcome to the deep dive. If you're gearing up for a law 2 00:00:03,160 --> 00:00:06,880 school final, or maybe you're in the thick of bar prep, you know 3 00:00:06,880 --> 00:00:08,360 the feeling. Oh, absolutely. 4 00:00:08,360 --> 00:00:11,560 It's that moment you hit Chapter 5 of the Federal Rules of Civil 5 00:00:11,560 --> 00:00:15,120 Procedure Discovery. It's a lot. 6 00:00:15,280 --> 00:00:17,400 It is. It's not just a lot of rules, 7 00:00:17,400 --> 00:00:21,080 it's where the entire case can be won or lost long before you 8 00:00:21,120 --> 00:00:23,000 ever see a courtroom. Exactly. 9 00:00:23,480 --> 00:00:25,560 And that's our goal today. We're going to take this huge 10 00:00:25,560 --> 00:00:29,200 stack of rules, cases and all the policy behind them and 11 00:00:29,200 --> 00:00:30,240 distill it. Right. 12 00:00:30,520 --> 00:00:33,160 Turn it into something you can actually remember and more 13 00:00:33,160 --> 00:00:35,760 importantly, use strategically on an exam. 14 00:00:35,840 --> 00:00:40,360 We're talking about the core framework rules 2633 through 37, 15 00:00:40,680 --> 00:00:43,600 the essential Shields like attorney-client privilege and 16 00:00:43,600 --> 00:00:46,120 work product. And you know how the judge keeps 17 00:00:46,120 --> 00:00:48,120 it all under control with Rule 16. 18 00:00:48,120 --> 00:00:51,040 Our mission here is really to go beyond just memorizing the rule 19 00:00:51,040 --> 00:00:52,680 numbers. We want to focus on those 20 00:00:52,680 --> 00:00:56,080 critical, distinct the specific language that an examiner's 21 00:00:56,080 --> 00:00:57,720 looking forward to see if you really get it. 22 00:00:57,760 --> 00:01:00,600 The kind of stuff that separates a good answer from a great one. 23 00:01:00,640 --> 00:01:03,200 We want you to walk away from this with knowledge you can use 24 00:01:03,200 --> 00:01:05,400 immediately. OK, let's unpack this. 25 00:01:05,800 --> 00:01:09,320 And the only place to start really is with the absolute 26 00:01:09,320 --> 00:01:13,120 foundation of the whole system. What can you actually ask for 27 00:01:13,800 --> 00:01:16,800 the scope of discovery under Rule 26B1? 28 00:01:16,920 --> 00:01:20,680 So historically, the whole idea behind discovery was, you know, 29 00:01:20,720 --> 00:01:23,680 to get rid of trial by ambush. Right, no more surprise 30 00:01:23,680 --> 00:01:25,080 witnesses popping out at the last minute. 31 00:01:25,080 --> 00:01:27,760 Exactly. The goal was Full disclosure, 32 00:01:27,760 --> 00:01:31,720 let the case be decide on the merits and the standard was just 33 00:01:31,840 --> 00:01:35,040 unbelievably broad. It was anything relevant to the 34 00:01:35,040 --> 00:01:37,120 subject matter. Which sounds good in theory, but 35 00:01:37,120 --> 00:01:39,440 in practice? In practice, it led to what 36 00:01:39,440 --> 00:01:41,400 everyone calls the fishing expedition. 37 00:01:41,480 --> 00:01:43,720 Just asking for everything under the sun, hoping you'll catch 38 00:01:43,800 --> 00:01:44,560 something. Right. 39 00:01:44,720 --> 00:01:47,960 It was often used to harass the other side or just bury them in 40 00:01:47,960 --> 00:01:49,960 so many requests they couldn't possibly keep up. 41 00:01:50,320 --> 00:01:54,520 And that tension, that problem, it just exploded with the rise 42 00:01:54,520 --> 00:01:56,200 of ESI. Electronically stored 43 00:01:56,200 --> 00:01:59,240 information, emails, databases, everything. 44 00:01:59,240 --> 00:02:02,160 Suddenly the volume of potentially relevant stuff went 45 00:02:02,160 --> 00:02:04,840 from thousands of pages to millions of files. 46 00:02:05,080 --> 00:02:06,640 The system was at a breaking point. 47 00:02:06,680 --> 00:02:10,080 And that's what brought about the big change in 2015, a real 48 00:02:10,080 --> 00:02:12,760 paradigm shift. A complete paradigm shift. 49 00:02:13,360 --> 00:02:16,880 The rule fundamentally changed. The focus moved from being 50 00:02:16,880 --> 00:02:21,440 almost all about relevance to this new gatekeeper 51 00:02:21,600 --> 00:02:24,160 proportionality. OK, So what does that mean now? 52 00:02:24,160 --> 00:02:26,880 What's the new three-part test? So now for something to be 53 00:02:26,880 --> 00:02:32,000 discoverable it has to be 1 non privileged, 2 relevant to a 54 00:02:32,000 --> 00:02:35,600 party's claimer defense and three, and this is the big one, 55 00:02:36,480 --> 00:02:39,040 it has to be proportional to the needs of the case. 56 00:02:39,400 --> 00:02:42,320 Now when we say relevant, that's still a pretty low bar, isn't 57 00:02:42,320 --> 00:02:44,400 it? It is the rule is clear on that 58 00:02:44,400 --> 00:02:48,040 for discovery relevant is way broader than what's admissible 59 00:02:48,040 --> 00:02:49,960 at trial. You just have to show that what 60 00:02:49,960 --> 00:02:53,240 you're asking for seems reasonably calculated to lead to 61 00:02:53,240 --> 00:02:55,040 evidence you could actually use in court. 62 00:02:55,160 --> 00:02:57,000 Precisely so. Relevance is kind of like the 63 00:02:57,000 --> 00:02:59,680 open door to discovery, but proportionality. 64 00:02:59,800 --> 00:03:02,920 Proportionality is the bouncer standing right inside that door. 65 00:03:03,000 --> 00:03:05,640 I like that so it's not just some argument you can make later 66 00:03:05,640 --> 00:03:08,720 on if you feel overwhelmed. No, and that's a critical point 67 00:03:08,720 --> 00:03:12,080 for any exam. Proportionality is now baked 68 00:03:12,080 --> 00:03:15,240 into the scope itself. It's not just a reason to ask 69 00:03:15,240 --> 00:03:17,400 for a protective order under 26C. 70 00:03:17,880 --> 00:03:21,640 If a request isn't proportional, the information is simply not 71 00:03:21,640 --> 00:03:23,120 discoverable. Period. 72 00:03:23,520 --> 00:03:26,240 And the rule doesn't just throw the word proportionality out 73 00:03:26,240 --> 00:03:28,840 there. It gives courts a checklist, 74 00:03:28,840 --> 00:03:31,320 right? Six specific factors to weigh. 75 00:03:31,440 --> 00:03:32,880 It does. And if you're studying for the 76 00:03:32,880 --> 00:03:35,520 bar, you absolutely have to know these six factors. 77 00:03:35,520 --> 00:03:37,960 They come up in almost every discovery dispute. 78 00:03:38,000 --> 00:03:39,800 So let's walk through them. What's the first pair? 79 00:03:39,800 --> 00:03:43,360 OK, so the first two really look at the size and seriousness of 80 00:03:43,360 --> 00:03:45,800 the case. Factor 1 is the importance of 81 00:03:45,800 --> 00:03:48,360 the issues at stake. Like is this a simple contract 82 00:03:48,360 --> 00:03:50,520 dispute or a massive civil rights case? 83 00:03:50,520 --> 00:03:53,720 Exactly, and factor 2 is the amount in controversy. 84 00:03:53,720 --> 00:03:56,920 You know $100 million lawsuit is going to justify a lot more 85 00:03:56,920 --> 00:03:59,440 discovery expense than a $50,000 one. 86 00:03:59,440 --> 00:04:01,280 That makes sense. What's the next pair of factors? 87 00:04:01,480 --> 00:04:04,600 The next two are about the practical side of things, access 88 00:04:04,600 --> 00:04:07,360 and resources. So factor 3 is the party's 89 00:04:07,360 --> 00:04:09,120 relative access to the information. 90 00:04:09,400 --> 00:04:12,120 This gets at that idea of information asymmetry. 91 00:04:12,320 --> 00:04:13,720 Right. If you're suing a huge 92 00:04:13,720 --> 00:04:16,600 corporation, they have all the documents, all the emails, so 93 00:04:16,600 --> 00:04:20,160 naturally their burden to produce that information is 94 00:04:20,160 --> 00:04:23,280 going to be higher. And factor 4 is the party's 95 00:04:23,280 --> 00:04:25,880 resources. This one seems like it could be 96 00:04:25,880 --> 00:04:28,160 tricky. It's a classic exam trap. 97 00:04:28,160 --> 00:04:31,400 People think, well the company is a multibillion dollar 98 00:04:31,400 --> 00:04:33,440 corporation so they can afford it. 99 00:04:33,600 --> 00:04:35,640 But that's not the whole story. Not at all. 100 00:04:35,800 --> 00:04:38,840 Resources are a factor, but they don't give the other side a 101 00:04:38,840 --> 00:04:40,840 blank check. You always have to tie it back 102 00:04:40,840 --> 00:04:43,320 to the benefit. Even a wealthy party doesn't 103 00:04:43,320 --> 00:04:46,680 have to spend $1,000,000 to produce documents that are only 104 00:04:46,680 --> 00:04:49,640 marginally relevant. So just because you can afford 105 00:04:49,640 --> 00:04:51,280 to produce it doesn't mean you have to. 106 00:04:51,360 --> 00:04:55,120 Exactly. Which leads us to the final and 107 00:04:55,120 --> 00:04:59,960 maybe most important pair of factors #5 is the importance of 108 00:04:59,960 --> 00:05:02,560 the discovery in actually resolving the issues. 109 00:05:02,560 --> 00:05:04,320 Is this the potential smoking gun? 110 00:05:04,480 --> 00:05:06,520 Or is it just another piece of paper and a mountain of? 111 00:05:06,520 --> 00:05:09,280 Oh, that's the question. And then factor 6 is the 112 00:05:09,280 --> 00:05:13,120 ultimate balancing test. Does the burden or expense of 113 00:05:13,120 --> 00:05:15,520 this discovery outweigh its likely benefit? 114 00:05:16,000 --> 00:05:17,920 That's where the court puts it all on the scale. 115 00:05:18,080 --> 00:05:21,320 So when this rule changed, there was a real fear, wasn't there? 116 00:05:21,760 --> 00:05:24,520 That big corporations would just use this as a new weapon to 117 00:05:24,520 --> 00:05:26,280 fight off discovery. Absolutely. 118 00:05:26,280 --> 00:05:29,760 The fear was they just yelled disproportionate at every 119 00:05:29,760 --> 00:05:32,640 request and bury the smaller plaintiff in motions and 120 00:05:32,640 --> 00:05:35,760 affidavits about cost. So how does the rule guard 121 00:05:35,760 --> 00:05:37,560 against that? Who has the burden of proof 122 00:05:37,560 --> 00:05:39,080 here? The rule is very clear. 123 00:05:39,400 --> 00:05:42,520 The burden is squarely on the party resisting discovery to 124 00:05:42,520 --> 00:05:43,960 show that it's disproportionate and. 125 00:05:43,960 --> 00:05:45,320 What does that look like in practice? 126 00:05:45,320 --> 00:05:47,080 You can't just say it's too expensive. 127 00:05:47,080 --> 00:05:49,640 No. The rule specifically warns 128 00:05:49,640 --> 00:05:52,520 against what it calls stereotyped and conclusory 129 00:05:52,520 --> 00:05:54,640 statements. So no boilerplate objections. 130 00:05:54,640 --> 00:05:56,800 Absolutely not. You have to come with facts, 131 00:05:56,920 --> 00:06:00,640 Specific concrete evidence, affidavits, documentation, 132 00:06:00,640 --> 00:06:03,920 vendor quotes. This is where the Ashmore V 133 00:06:03,920 --> 00:06:06,640 Allied Energy case is so helpful to understand. 134 00:06:06,720 --> 00:06:10,200 Refresh my memory on that one. O In Ashmore, the defendant 135 00:06:10,200 --> 00:06:13,640 objected to producing some ESI. They said it would cost 136 00:06:13,640 --> 00:06:16,760 $400,000, but the plaintiffs claim was only worth about 137 00:06:16,760 --> 00:06:19,880 250,000. On its face, that sounds like a 138 00:06:19,880 --> 00:06:21,760 slam dunk proportionality argument. 139 00:06:21,760 --> 00:06:24,360 It does does, but the court shot it down completely. 140 00:06:24,720 --> 00:06:27,280 Why? Because the defendant didn't 141 00:06:27,280 --> 00:06:29,640 provide a single shred of evidence to back up that 142 00:06:29,640 --> 00:06:32,680 $400,000 number, it was just a number they threw out there. 143 00:06:32,760 --> 00:06:35,840 So what should they have done? What was the court looking for? 144 00:06:36,080 --> 00:06:40,000 They needed affidavits from their IT people explaining why 145 00:06:40,000 --> 00:06:41,680 it was so hard to search the data. 146 00:06:42,280 --> 00:06:45,320 They needed bids from E discovery vendors to show what 147 00:06:45,320 --> 00:06:47,400 the review would actually cost per hour. 148 00:06:47,400 --> 00:06:49,840 They needed to show their work. They needed to show their work. 149 00:06:50,280 --> 00:06:53,840 Without that factual foundation, the court basically said your 150 00:06:53,840 --> 00:06:58,000 objection is just speculation. So the lesson for an exam or for 151 00:06:58,000 --> 00:07:01,440 practice is you must connect the specific burden, the volume, the 152 00:07:01,440 --> 00:07:05,040 cost, the technical difficulty directly back to those six 153 00:07:05,040 --> 00:07:07,080 factors. OK, so once we understand the 154 00:07:07,080 --> 00:07:09,960 scope of what we can get, we need to talk about the tools we 155 00:07:09,960 --> 00:07:13,120 use to get it. And in the modern rules, the 156 00:07:13,120 --> 00:07:15,760 process doesn't start with you asking for things. 157 00:07:15,920 --> 00:07:18,760 No, it starts with a mandate, the required disclosures under 158 00:07:18,760 --> 00:07:20,200 Rule 26. A. 159 00:07:20,320 --> 00:07:23,000 Things you have to hand over automatically without even being 160 00:07:23,000 --> 00:07:24,040 asked. Exactly. 161 00:07:24,040 --> 00:07:26,640 It's meant to get the key information on the table early 162 00:07:26,960 --> 00:07:29,520 and, you know, encourage transparency right from the 163 00:07:29,520 --> 00:07:31,000 start. So let's break down the first 164 00:07:31,000 --> 00:07:33,520 wave initial disclosures under 26 AR. 165 00:07:34,040 --> 00:07:37,320 What's on that mandatory list? There are four key categories. 166 00:07:37,520 --> 00:07:40,760 First, you have to identify anyone you may use to support 167 00:07:40,760 --> 00:07:43,920 your claims or defenses. Their name, address, phone 168 00:07:43,920 --> 00:07:46,480 number. And that phrase may use is 169 00:07:46,480 --> 00:07:48,440 important. It's broader than your final 170 00:07:48,440 --> 00:07:50,320 trial witness list. Much broader. 171 00:07:50,720 --> 00:07:54,040 Second, you have to provide copies or at least a description 172 00:07:54,040 --> 00:07:56,680 of all the documents in ESI. You may use for support. 173 00:07:56,840 --> 00:08:00,680 Same may use standard right? 3rd you have to provide a 174 00:08:00,680 --> 00:08:03,960 computation of your damages and hand over the documents the back 175 00:08:04,040 --> 00:08:06,320 it up. And 4th this is a big one on 176 00:08:06,320 --> 00:08:08,160 exams. Any insurance agreement that 177 00:08:08,160 --> 00:08:10,960 might cover the judgment. And timing is key. 178 00:08:11,720 --> 00:08:14,640 When are these due? They're typically due within 14 179 00:08:14,640 --> 00:08:17,920 days after the lawyers have their initial discovery Planning 180 00:08:17,920 --> 00:08:19,760 conference, the Rule 26 conference. 181 00:08:20,080 --> 00:08:22,320 But not every single case requires these, right? 182 00:08:22,360 --> 00:08:24,400 There are exemptions. That's another favorite exam 183 00:08:24,400 --> 00:08:26,880 topic. The rules list several types of 184 00:08:26,880 --> 00:08:29,320 cases that are exempt. Usually they're cases that need 185 00:08:29,320 --> 00:08:32,320 to move very quickly or where this kind of formal discovery 186 00:08:32,320 --> 00:08:35,880 just doesn't make sense. What things like habeas corpus 187 00:08:35,880 --> 00:08:39,120 petitions, lawsuits filed by prisoners without a lawyer, 188 00:08:39,360 --> 00:08:42,400 actions to enforce an arbitration award, things like 189 00:08:42,400 --> 00:08:43,280 that? Got it. 190 00:08:43,600 --> 00:08:48,200 OK, now for the really expensive part of Discovery Experts rule 191 00:08:48,200 --> 00:08:51,320 26A2. It seems like there are two very 192 00:08:51,320 --> 00:08:53,000 different tracks here. There are. 193 00:08:53,320 --> 00:08:55,840 The rules create a major distinction based on the type of 194 00:08:55,840 --> 00:08:58,080 expert. The first category, the one with 195 00:08:58,080 --> 00:09:00,880 the highest burden, is for experts who are specifically 196 00:09:00,880 --> 00:09:04,040 retained or hired to testify. Or an employee of the party 197 00:09:04,040 --> 00:09:06,880 whose regular job involves giving expert testimony. 198 00:09:06,880 --> 00:09:10,360 Right, for those experts, you have to provide a full, detailed 199 00:09:10,360 --> 00:09:12,960 written report under Rule 26 A 2B. 200 00:09:13,120 --> 00:09:16,480 And that report is no joke. It's incredibly detailed. 201 00:09:16,720 --> 00:09:20,520 It's exhaustive, it's designed to be a complete road map for 202 00:09:20,520 --> 00:09:22,280 the other side's cross examination. 203 00:09:22,520 --> 00:09:25,520 It needs all of the experts opinions, the data they 204 00:09:25,520 --> 00:09:28,000 considered, any exhibits they'll use. 205 00:09:28,160 --> 00:09:31,800 Their qualifications including a list of publications from the 206 00:09:31,800 --> 00:09:34,280 last 10 years. A list of other cases they've 207 00:09:34,280 --> 00:09:36,040 testified in for the last four years. 208 00:09:36,320 --> 00:09:38,720 And how much you're paying them. It's all in there. 209 00:09:38,760 --> 00:09:41,680 It really is designed so there are no surprises, but then you 210 00:09:41,680 --> 00:09:43,480 have this other lighter category. 211 00:09:43,600 --> 00:09:48,400 Right under 26A to C This is for witnesses who aren't formally 212 00:09:48,400 --> 00:09:51,640 retained as an expert, but might still offer some expert 213 00:09:51,640 --> 00:09:54,240 opinions. The classic example being the 214 00:09:54,240 --> 00:09:57,080 treating physician. The perfect example, A treating 215 00:09:57,080 --> 00:09:59,760 doctor is, at the core, a fact witness. 216 00:09:59,920 --> 00:10:02,720 They can testify about what they saw, what they did, their 217 00:10:02,720 --> 00:10:04,920 diagnosis. But if they start going beyond. 218 00:10:04,920 --> 00:10:07,880 That if they start offering opinions on, say, the complex 219 00:10:07,880 --> 00:10:11,400 cause of a rare condition or who was at fault in an accident, 220 00:10:11,400 --> 00:10:13,360 they're stepping into expert territory. 221 00:10:13,360 --> 00:10:14,640 So what do you have to disclose for them? 222 00:10:15,000 --> 00:10:17,800 No huge report. No, thankfully for these non 223 00:10:17,800 --> 00:10:20,640 retained experts you just have to disclose the subject matter 224 00:10:20,640 --> 00:10:23,040 they'll testify about and a summary of the facts and 225 00:10:23,040 --> 00:10:25,720 opinions. It's much, much less burdensome. 226 00:10:25,800 --> 00:10:29,280 And there's one more mandatory piece here, which is the duty to 227 00:10:29,280 --> 00:10:32,600 supplement your answers. Rule 26 E. 228 00:10:32,720 --> 00:10:36,200 And this is an ongoing duty. It's not a one and done thing if 229 00:10:36,200 --> 00:10:39,280 you find out later that something you disclosed or said 230 00:10:39,280 --> 00:10:42,280 in a discovery response was incomplete or wrong. 231 00:10:42,280 --> 00:10:44,200 You have to fix. It you have to fix it and in a 232 00:10:44,200 --> 00:10:47,280 timely manner. This is especially true for 233 00:10:47,280 --> 00:10:50,360 expert reports. If your expert gets new data and 234 00:10:50,360 --> 00:10:52,920 changes their opinion, you have to update that report 235 00:10:52,920 --> 00:10:54,480 immediately. And if you don't? 236 00:10:54,640 --> 00:10:57,440 If you don't, you face some of the harshest sanctions in the 237 00:10:57,440 --> 00:11:01,960 rule book under Rule 37 C, which usually means your evidence or 238 00:11:01,960 --> 00:11:04,600 your witness gets excluded. It's a massive risk. 239 00:11:04,600 --> 00:11:07,160 OK, with the mandatory stuff done, we can finally get to the 240 00:11:07,160 --> 00:11:10,360 tools we actively use, the core discovery devices. 241 00:11:10,760 --> 00:11:12,960 Let's start with interrogatories Rule 33. 242 00:11:13,160 --> 00:11:15,400 Interrogatories. These are written questions sent 243 00:11:15,400 --> 00:11:17,680 to the other side. They're great for nailing down 244 00:11:17,680 --> 00:11:22,040 basic facts and contentions. And a key limitation here, you 245 00:11:22,040 --> 00:11:23,880 can only send them to parties in the lawsuit. 246 00:11:24,000 --> 00:11:26,280 Correct. Not to third party witnesses. 247 00:11:26,680 --> 00:11:30,600 And there's a hard limit, 25 questions including subparts, 248 00:11:31,280 --> 00:11:33,800 unless you get the court's permission or the other side 249 00:11:33,800 --> 00:11:36,960 agrees to more. The discrete subparts. 250 00:11:36,960 --> 00:11:40,560 Rule examiners love that one. How do you tell if one question 251 00:11:40,560 --> 00:11:44,520 is actually, say, 3 questions? The general test is whether the 252 00:11:44,520 --> 00:11:46,720 sub questions are asking about separate subjects. 253 00:11:47,080 --> 00:11:49,880 So if you ask identify all employees involved in the 254 00:11:49,880 --> 00:11:52,200 incident, state their job titles, and describe their 255 00:11:52,200 --> 00:11:55,200 duties, a court is almost certainly going to count that as 256 00:11:55,200 --> 00:11:57,960 three separate interrogatories. So you have to be careful how 257 00:11:57,960 --> 00:11:59,760 you phrase them. Very careful. 258 00:12:00,120 --> 00:12:02,280 A big advantage of interrogatories though, is that 259 00:12:02,280 --> 00:12:04,760 you can ask for opinions or contentions. 260 00:12:04,840 --> 00:12:07,920 You can ask things like state all facts that support your 261 00:12:07,920 --> 00:12:09,720 claim of negligence. Exactly. 262 00:12:09,720 --> 00:12:12,560 You can use them to force your opponent to lay their cards on 263 00:12:12,560 --> 00:12:14,760 the table and commit to their legal theories. 264 00:12:15,000 --> 00:12:17,640 And what if the answer is buried in a mountain of business 265 00:12:17,640 --> 00:12:20,360 records? That's where Rule 33 D comes in. 266 00:12:20,440 --> 00:12:24,200 It's a kind of escape hatch. If the work required to find the 267 00:12:24,200 --> 00:12:27,960 answer is basically the same for both sides, the responding party 268 00:12:27,960 --> 00:12:31,200 can just say here you can have access to our records, you find 269 00:12:31,200 --> 00:12:33,040 it. It's just the burden of digging 270 00:12:33,040 --> 00:12:36,080 through the data back to the person who asked the question. 271 00:12:36,160 --> 00:12:39,160 A very powerful tool, especially with ESI. 272 00:12:39,320 --> 00:12:43,200 OK, Next up is the real workhorse Requests for 273 00:12:43,200 --> 00:12:46,800 Production Rule 34. This is how you get the stuff 274 00:12:47,520 --> 00:12:50,800 documents, tangible things, and of course ESI. 275 00:12:51,360 --> 00:12:54,520 The key here is that your request has to describe what you 276 00:12:54,520 --> 00:12:56,920 want with reasonable particularity. 277 00:12:57,280 --> 00:13:00,120 Meaning the other side has to be able to read it and know what 278 00:13:00,120 --> 00:13:01,840 they're supposed to look for. Exactly. 279 00:13:01,960 --> 00:13:05,320 And with ESI, the rules now get very technical about the format 280 00:13:05,320 --> 00:13:07,000 of the production. You can't just print out a 281 00:13:07,000 --> 00:13:09,120 million emails and dump them on someone's desk. 282 00:13:09,120 --> 00:13:11,240 Now the responding party has to be very specific. 283 00:13:11,240 --> 00:13:12,920 They do. They have to state what format 284 00:13:12,920 --> 00:13:14,720 they're going to use. Usually it's either the format 285 00:13:14,720 --> 00:13:17,080 the other side requested, the native format you know, the way 286 00:13:17,080 --> 00:13:20,520 the file was normally kept, or some other reasonably usable 287 00:13:20,520 --> 00:13:22,640 form. What does reasonably usable 288 00:13:22,640 --> 00:13:25,640 really mean, and why is the format so critical? 289 00:13:25,720 --> 00:13:28,560 It's all about the metadata. The data about the data. 290 00:13:28,560 --> 00:13:30,400 Right. Who created the document? 291 00:13:30,400 --> 00:13:33,400 When was it last modified? Were there hidden comments? 292 00:13:34,200 --> 00:13:36,920 If you just produce a simple PDF, all that valuable 293 00:13:36,920 --> 00:13:40,600 information can be lost. So reasonably usable means you 294 00:13:40,600 --> 00:13:43,880 have to preserve that metadata. You have to produce it in a way 295 00:13:43,880 --> 00:13:46,720 that allows the other side to search and analyze it 296 00:13:46,720 --> 00:13:49,800 effectively. OK, moving to the most invasive 297 00:13:49,800 --> 00:13:53,320 tool, the one that requires a court order upfront physical and 298 00:13:53,320 --> 00:13:55,520 mental examinations under Rule 35. 299 00:13:55,600 --> 00:13:58,560 Right, because this gets into someone's personal privacy. 300 00:13:58,760 --> 00:14:02,640 The bar is extremely high. You can't just demand it, you 301 00:14:02,640 --> 00:14:05,120 have to file a motion and convince a judge. 302 00:14:05,120 --> 00:14:06,680 And you have to satisfy A2 part test. 303 00:14:06,680 --> 00:14:09,640 A strict 2 part test. First, the person's physical or 304 00:14:09,640 --> 00:14:13,000 mental condition has to be in controversy and 2nd, you have to 305 00:14:13,000 --> 00:14:16,160 show good cause for the exam. So what does it in controversy 306 00:14:16,160 --> 00:14:17,720 mean? It has to be more than just 307 00:14:17,720 --> 00:14:19,080 relevant. Much more. 308 00:14:19,360 --> 00:14:21,200 It has to be a central part of the case. 309 00:14:21,760 --> 00:14:25,240 So if a plaintiff is suing for a broken leg, their physical 310 00:14:25,240 --> 00:14:27,280 condition is obviously in controversy. 311 00:14:27,880 --> 00:14:32,160 But if they just make a routine claim for emotional distress, 312 00:14:32,680 --> 00:14:34,840 courts often say that's not enough to put their mental 313 00:14:34,840 --> 00:14:37,120 health in controversy to force an exam. 314 00:14:37,120 --> 00:14:40,240 They have to be actively using their mental condition as a core 315 00:14:40,240 --> 00:14:43,720 part of their claim. Exactly, and good 'cause means 316 00:14:43,720 --> 00:14:46,960 you have to show you can't get the information any other way. 317 00:14:47,480 --> 00:14:50,080 If their medical records are enough, the court will likely 318 00:14:50,080 --> 00:14:54,160 deny the exam. Finally, we have requests for 319 00:14:54,160 --> 00:14:57,680 admission under Rule 36. These aren't really for finding 320 00:14:57,680 --> 00:14:59,760 new facts, are they? No, they're for narrowing the 321 00:14:59,760 --> 00:15:02,320 issues for trial. You're asking the other side to 322 00:15:02,320 --> 00:15:04,960 admit that certain facts are true, or that certain documents 323 00:15:04,960 --> 00:15:06,640 are genuine. So you don't have to waste time 324 00:15:06,640 --> 00:15:08,120 proving those things in court. Right. 325 00:15:08,360 --> 00:15:10,920 And the real power of Rule 36 is the deadline. 326 00:15:11,080 --> 00:15:13,000 The other side has 30 days to respond. 327 00:15:13,160 --> 00:15:15,080 And if they don't? If they don't respond, the 328 00:15:15,080 --> 00:15:17,840 matter is automatically and conclusively admitted. 329 00:15:17,840 --> 00:15:19,920 Conclusively, that sounds pretty final. 330 00:15:20,080 --> 00:15:23,120 It means it's treated as a settled fact for the rest of the 331 00:15:23,120 --> 00:15:25,280 case. You can't challenge it at trial. 332 00:15:25,280 --> 00:15:27,120 It's an incredibly powerful tool. 333 00:15:27,200 --> 00:15:30,640 If the other side is asleep at the switch, getting out of that 334 00:15:30,640 --> 00:15:32,880 admission is extremely difficult. 335 00:15:33,280 --> 00:15:35,880 Let's focus now on something that's a huge challenge in 336 00:15:35,880 --> 00:15:40,360 litigation, getting information from big companies, and that 337 00:15:40,360 --> 00:15:43,920 starts with the corporate deposition Rule 30B6. 338 00:15:43,920 --> 00:15:47,520 The 30B6 deposition. This rule was created to solve a 339 00:15:47,520 --> 00:15:52,000 very specific, very frustrating problem that lawyers call 340 00:15:52,120 --> 00:15:53,880 bandying. What's bandying? 341 00:15:54,040 --> 00:15:56,440 It's when you try to depose a corporation and they'd send you 342 00:15:56,440 --> 00:15:57,840 a witness and you'd ask a question. 343 00:15:57,840 --> 00:15:59,200 They'd say, oh, I don't know about that. 344 00:15:59,360 --> 00:16:01,040 You need to talk to Susan in accounting. 345 00:16:01,480 --> 00:16:03,280 So you'd depose Susan and she'd say that's not me. 346 00:16:03,280 --> 00:16:04,880 You need to talk to Bob in engineering. 347 00:16:04,880 --> 00:16:07,200 The corporate runaround. The ultimate runaround, Rule 348 00:16:07,200 --> 00:16:11,200 30B6 puts a stop to that. You, the deposing attorney, send 349 00:16:11,200 --> 00:16:14,000 a notice that lists the topics you want to ask about. 350 00:16:14,000 --> 00:16:15,760 And then the burden shifts to the corporation. 351 00:16:15,760 --> 00:16:20,000 Completely, the corporation has a duty to designate and, more 352 00:16:20,000 --> 00:16:23,240 importantly, prepare one or more people to testify on its behalf 353 00:16:23,240 --> 00:16:25,960 about those topics. And the witness isn't just 354 00:16:25,960 --> 00:16:27,560 testifying from their own memory. 355 00:16:27,560 --> 00:16:31,080 No, and this is the key. They're testifying to the 356 00:16:31,080 --> 00:16:33,840 corporate knowledge, the collective knowledge of the 357 00:16:33,840 --> 00:16:37,080 entire organization. This means the corporation has 358 00:16:37,080 --> 00:16:39,920 to educate them. They have to review documents, 359 00:16:39,920 --> 00:16:42,560 interview other employees, whatever it takes. 360 00:16:43,000 --> 00:16:45,720 The witness speaks for the company even if they have no 361 00:16:45,720 --> 00:16:47,280 personal knowledge of the events. 362 00:16:47,600 --> 00:16:51,960 That preparation sounds intense. It has to be the witness needs 363 00:16:51,960 --> 00:16:55,040 to be able to clearly explain the company's position on the 364 00:16:55,040 --> 00:16:57,800 notice topics. They also have to be trained to 365 00:16:57,800 --> 00:17:00,880 distinguish between what they know personally an what they 366 00:17:00,880 --> 00:17:04,319 know on behalf of the company. So if the witness gives a bad 367 00:17:04,319 --> 00:17:06,640 answer, is the company stuck with it? 368 00:17:06,760 --> 00:17:09,359 Is it a binding judicial admission? 369 00:17:09,760 --> 00:17:12,560 Generally, no. The testimony is considered an 370 00:17:12,560 --> 00:17:15,520 evidentiary admission, which means it's powerful evidence, 371 00:17:15,520 --> 00:17:18,200 but the company can try to explain it or contradict it at 372 00:17:18,200 --> 00:17:19,480 trial. But the damage to their 373 00:17:19,480 --> 00:17:21,920 credibility could be huge. Devastating. 374 00:17:22,240 --> 00:17:24,880 And in some cases, the sanctions can be even worse. 375 00:17:25,400 --> 00:17:27,839 There's the First Mariner Bank case, which is just a perfect 376 00:17:27,839 --> 00:17:29,840 example of what not to do. What happened there? 377 00:17:30,040 --> 00:17:35,040 The defendant produced A30B6 witness who was just completely 378 00:17:35,040 --> 00:17:38,200 unprepared, couldn't answer the most basic questions about the 379 00:17:38,200 --> 00:17:39,880 company's own records. It was that bad. 380 00:17:39,880 --> 00:17:43,080 It was worse. The witness then invoked the 5th 381 00:17:43,080 --> 00:17:46,320 Amendment over and over again on questions that had nothing to do 382 00:17:46,320 --> 00:17:49,400 with personal liability. The court found that the 383 00:17:49,400 --> 00:17:52,920 company's failure to prepare a knowledgeable witness was so 384 00:17:52,920 --> 00:17:56,200 total that it was the same as not showing up at all. 385 00:17:56,600 --> 00:17:58,600 And the result. It was a major factor in the 386 00:17:58,600 --> 00:18:01,280 court entering a default judgement against them, a 387 00:18:01,280 --> 00:18:03,320 catastrophic failure. Wow. 388 00:18:03,720 --> 00:18:07,480 OK, so one practical question. What happens if the lawyer 389 00:18:07,480 --> 00:18:11,280 asking questions goes outside the topics listed in the notice? 390 00:18:11,280 --> 00:18:13,320 Great question. The lawyer defending the 391 00:18:13,320 --> 00:18:15,440 deposition has to object immediately. 392 00:18:15,560 --> 00:18:18,040 State on the record that the question is outside the scope of 393 00:18:18,040 --> 00:18:20,920 the 30B6 notice and that the answer is not being given on 394 00:18:20,920 --> 00:18:23,440 behalf of the corporation. And then the witness can answer 395 00:18:23,440 --> 00:18:25,120 from personal knowledge if they have any. 396 00:18:25,320 --> 00:18:26,880 Right. Or they can say they don't know, 397 00:18:27,400 --> 00:18:30,520 but that objection is crucial to prevent the answer from being 398 00:18:30,520 --> 00:18:32,000 treated as a corporate admission. 399 00:18:32,200 --> 00:18:34,840 OK, now let's tackle the elephant in the room for all 400 00:18:34,840 --> 00:18:40,080 modern discovery ESI and the risk exploitation, specifically 401 00:18:40,440 --> 00:18:43,760 Rule 37 E. ESI has just transformed 402 00:18:43,760 --> 00:18:45,760 litigation. We're talking about everything 403 00:18:45,760 --> 00:18:49,640 from emails and Word documents to complex databases and social 404 00:18:49,640 --> 00:18:51,920 media data. And the duty to preserve all of 405 00:18:51,920 --> 00:18:54,520 that kicks in. As the famous Zubalake case 406 00:18:54,520 --> 00:18:57,680 taught us, at the moment litigation is reasonably 407 00:18:57,680 --> 00:19:00,360 anticipated. As soon as that duty arises, a 408 00:19:00,360 --> 00:19:02,120 company has to take active steps. 409 00:19:02,320 --> 00:19:05,320 They have to issue a litigation hold, tell employees not to 410 00:19:05,320 --> 00:19:08,160 delete things, and make sure their automatic dilution systems 411 00:19:08,160 --> 00:19:12,600 are suspended for key people. And if they fail, if data gets 412 00:19:12,600 --> 00:19:14,680 lost, that should have been saved. 413 00:19:14,800 --> 00:19:16,960 Then you're looking at exploitation sanctions under 414 00:19:16,960 --> 00:19:20,600 rule 37 E, and the rule sets up A2 tier system for punishment. 415 00:19:20,600 --> 00:19:22,520 OK, what's tier one? This is for when the loss wasn't 416 00:19:22,520 --> 00:19:23,480 on purpose, right? Right. 417 00:19:23,480 --> 00:19:27,680 Rule 37 E covers situations where ESI was lost because a 418 00:19:27,680 --> 00:19:30,200 party failed to take reasonable steps to preserve it. 419 00:19:30,360 --> 00:19:33,280 It's a negligence standard if the loss prejudices the other 420 00:19:33,280 --> 00:19:34,960 side. Then the court can step in. 421 00:19:35,040 --> 00:19:39,520 Yes, but the remedy is limited. The court can order measures no 422 00:19:39,520 --> 00:19:42,160 greater than necessary to cure the prejudice. 423 00:19:42,280 --> 00:19:46,560 So things like letting the jury know that evidence was lost or 424 00:19:46,560 --> 00:19:48,880 maybe letting a party re depose a witness. 425 00:19:49,160 --> 00:19:51,240 Exactly. The punishment has to fit the 426 00:19:51,240 --> 00:19:53,880 crime, and the rule also has a safe harbor. 427 00:19:54,640 --> 00:19:57,720 If the party took reasonable steps to preserve, they might 428 00:19:57,720 --> 00:20:00,160 escape sanctions even if data was still lost. 429 00:20:00,600 --> 00:20:03,400 Perfection isn't required. But then there's Tier 2. 430 00:20:03,640 --> 00:20:05,720 This is the big one. This is the nuclear option. 431 00:20:06,040 --> 00:20:10,160 Rule 37 E 2 applies only if the court finds the party acted with 432 00:20:10,160 --> 00:20:12,640 the intent to deprive the other side of the information. 433 00:20:12,720 --> 00:20:14,280 This is more than just being sloppy. 434 00:20:14,280 --> 00:20:16,240 This is active, willful destruction. 435 00:20:16,280 --> 00:20:18,640 Absolutely. And if the court makes that 436 00:20:18,640 --> 00:20:22,240 finding of intent, the available sanctions become much, much more 437 00:20:22,240 --> 00:20:23,440 severe. What are you talking about? 438 00:20:23,600 --> 00:20:26,840 The court can presume the lost information was unfavorable to 439 00:20:26,840 --> 00:20:29,920 the party that destroyed it. It can give an adverse inference 440 00:20:29,920 --> 00:20:33,000 instruction to the jury telling them they may or even must 441 00:20:33,000 --> 00:20:36,400 assume the evidence was bad. Or, in the most extreme cases, 442 00:20:36,400 --> 00:20:39,880 it can order case terminating sanctions, dismissal, or default 443 00:20:39,880 --> 00:20:42,720 judgment. The bar for proving that intent 444 00:20:42,720 --> 00:20:45,200 to deprive must be incredibly high. 445 00:20:45,280 --> 00:20:47,680 It is. It takes truly egregious 446 00:20:47,680 --> 00:20:50,120 behavior. The Wang case is a perfect 447 00:20:50,120 --> 00:20:52,080 illustration. Tell us what happened there. 448 00:20:52,320 --> 00:20:55,640 The defendant in Wang didn't just accidentally delete things. 449 00:20:55,840 --> 00:20:58,800 He engaged in a systematic campaign of destruction. 450 00:20:58,800 --> 00:21:02,360 He deleted thousands of emails, blocked access to his accounts. 451 00:21:02,440 --> 00:21:05,040 And then he did something truly unbelievable. 452 00:21:05,040 --> 00:21:08,560 He literally took a desktop computer that he knew had 453 00:21:08,560 --> 00:21:12,680 relevant files on it and donated it to Goodwill after the court 454 00:21:12,680 --> 00:21:14,960 had already ordered him to preserve everything. 455 00:21:14,960 --> 00:21:16,480 You can't get much more intentional than that. 456 00:21:16,480 --> 00:21:18,720 Exactly. That was the kind of smoking gun 457 00:21:18,720 --> 00:21:21,960 of intent that justified the court taking the ultimate step 458 00:21:22,120 --> 00:21:24,920 and ending his case. The take away is clear. 459 00:21:25,240 --> 00:21:28,720 You have to have a documented defensible preservation process. 460 00:21:28,880 --> 00:21:32,000 It's the only way to prove you took those reasonable steps. 461 00:21:32,920 --> 00:21:35,640 All right, now we have to talk about the two biggest Shields in 462 00:21:35,640 --> 00:21:39,760 discovery, the doctrines that allow you to say yes, this is 463 00:21:39,760 --> 00:21:42,120 relevant and proportional, but you still can't have it. 464 00:21:42,200 --> 00:21:44,400 Attorney-client privilege and the work product doctrine. 465 00:21:44,520 --> 00:21:48,040 The two most frequently tested discovery topics on any law 466 00:21:48,040 --> 00:21:49,920 exam. And they get confused all the 467 00:21:49,920 --> 00:21:53,520 time, but they're really very different in how they work, what 468 00:21:53,520 --> 00:21:56,000 they protect, and especially how you can lose them. 469 00:21:56,080 --> 00:21:58,400 Fundamentally different. Let's start with the big one, 470 00:21:58,520 --> 00:22:01,080 attorney-client privilege. It's the oldest. 471 00:22:01,640 --> 00:22:05,480 It's purpose is grand and simple to encourage clients to be 472 00:22:05,480 --> 00:22:07,640 completely honest with their lawyers. 473 00:22:07,680 --> 00:22:09,880 To get the best possible legal advice. 474 00:22:09,960 --> 00:22:11,800 Right. And because of that grand 475 00:22:11,800 --> 00:22:15,280 purpose, the protection it offers is absolute. 476 00:22:15,400 --> 00:22:18,120 If it applies, it's an unbreakable shield. 477 00:22:18,600 --> 00:22:22,560 But, and this is a huge but, it is incredibly fragile. 478 00:22:22,560 --> 00:22:24,360 It's easy to break, easy to wave. 479 00:22:24,360 --> 00:22:27,040 Very easy and what it protects is narrow. 480 00:22:27,280 --> 00:22:30,840 It only protects confidential communications between a lawyer 481 00:22:30,840 --> 00:22:33,760 and client made for the purpose of getting legal advice. 482 00:22:33,760 --> 00:22:36,200 OK, so compare that to the work product doctrine. 483 00:22:36,200 --> 00:22:39,080 Work product is much newer. It came out of the Hickman V 484 00:22:39,080 --> 00:22:42,760 Taylor case and its purpose is much more practical and narrow. 485 00:22:42,920 --> 00:22:45,320 It's about protecting the adversarial system. 486 00:22:45,320 --> 00:22:48,120 Letting lawyers prepare for a case without the other side 487 00:22:48,120 --> 00:22:50,240 looking over their shoulder. Exactly. 488 00:22:50,240 --> 00:22:51,960 So. It protects documents and other 489 00:22:51,960 --> 00:22:54,920 tangible things that are prepared in anticipation of 490 00:22:54,920 --> 00:22:58,120 litigation. And unlike privilege, its 491 00:22:58,120 --> 00:23:01,080 protection is not absolute. It's qualified. 492 00:23:01,080 --> 00:23:04,240 It can be overcome. It can be, but on the other 493 00:23:04,240 --> 00:23:07,760 hand, it's much more robust. It's harder to wave than the 494 00:23:07,760 --> 00:23:10,200 attorney-client privilege. OK, let's dig into the 495 00:23:10,200 --> 00:23:12,480 privilege. In the corporate world, this 496 00:23:12,480 --> 00:23:16,000 gets really complicated because you have emails flying around 497 00:23:16,160 --> 00:23:19,000 that are part business advice, part legal advice. 498 00:23:19,080 --> 00:23:23,400 It's a minefield and for a long time courts struggled with who 499 00:23:23,400 --> 00:23:26,080 in the corporation was even covered by the privilege. 500 00:23:26,600 --> 00:23:29,320 Some courts used a very narrow control group test. 501 00:23:29,360 --> 00:23:32,600 Meaning only communications with top executives were protected. 502 00:23:32,680 --> 00:23:34,600 Right. The problem was the top 503 00:23:34,600 --> 00:23:37,160 executives are almost never the people who actually know the 504 00:23:37,160 --> 00:23:39,800 facts on the ground. So the lawyers couldn't actually 505 00:23:39,800 --> 00:23:42,480 investigate the case without risking that their interviews 506 00:23:42,480 --> 00:23:45,240 weren't privileged. It was an impossible situation, 507 00:23:45,360 --> 00:23:49,280 which is why the Supreme Court in the Upjohn case rejected that 508 00:23:49,280 --> 00:23:51,200 test. And what did the Upjohn standard 509 00:23:51,200 --> 00:23:53,640 establish? Upjohn said that the privilege 510 00:23:53,640 --> 00:23:57,000 can protect communications between the company's lawyer and 511 00:23:57,000 --> 00:24:00,240 employees at any level of the company, as long as the 512 00:24:00,240 --> 00:24:03,880 communication is about matters within the employees duties and 513 00:24:03,880 --> 00:24:06,800 it's for the purpose of helping the lawyer give legal advice to 514 00:24:06,800 --> 00:24:08,840 the corporation. It's much more practical. 515 00:24:08,840 --> 00:24:10,880 It allows the lawyer to actually find out what happened. 516 00:24:10,880 --> 00:24:13,240 Exactly. But the challenge is still 517 00:24:13,240 --> 00:24:16,360 proving that the primary purpose of the communication was legal 518 00:24:16,360 --> 00:24:18,080 advice. This is what I call the 519 00:24:18,080 --> 00:24:21,880 pernicious e-mail effect. An e-mail chain with 10 people 520 00:24:21,880 --> 00:24:24,920 on it talking about marketing sales figures, and then one 521 00:24:24,920 --> 00:24:26,400 little question to the lawyer at the bottom. 522 00:24:26,600 --> 00:24:28,080 And that's where you lose the privilege. 523 00:24:28,120 --> 00:24:30,680 A court will look at that and say the primary purpose was 524 00:24:30,680 --> 00:24:33,800 business, not law. So what's the practical advice? 525 00:24:34,440 --> 00:24:37,480 How do you train clients to protect the privilege? 526 00:24:37,600 --> 00:24:40,680 You have to be disciplined. Just typing attorney-client 527 00:24:40,680 --> 00:24:43,000 privilege at the top of an e-mail is not enough. 528 00:24:43,520 --> 00:24:45,480 The content has to match the label. 529 00:24:45,680 --> 00:24:47,880 Right. The e-mail itself should say 530 00:24:47,880 --> 00:24:51,080 something like we are seeking legal advice on the following 531 00:24:51,080 --> 00:24:54,880 issue and just as importantly you have to limit who gets the 532 00:24:54,880 --> 00:24:57,080 e-mail. It should only go to people with 533 00:24:57,080 --> 00:25:00,320 a strict need to know. The more people you add, the 534 00:25:00,320 --> 00:25:03,120 harder it is to argue it was a confidential legal 535 00:25:03,120 --> 00:25:05,640 communication. OK, let's talk about waiver. 536 00:25:06,200 --> 00:25:08,560 This is the privileges Achilles heel. 537 00:25:09,240 --> 00:25:11,160 What happens if a third party's in the room? 538 00:25:11,280 --> 00:25:12,880 Generally, the privilege is gone. 539 00:25:12,880 --> 00:25:15,760 The presence of an outsider breaks the confidentiality. 540 00:25:16,200 --> 00:25:18,400 Now there are exceptions for agents. 541 00:25:18,560 --> 00:25:20,480 An interpreter. An interpreter is a perfect 542 00:25:20,480 --> 00:25:24,000 example of a client agent who is nearly indispensable for the 543 00:25:24,000 --> 00:25:27,040 communication to even happen. But if the client just brings 544 00:25:27,040 --> 00:25:29,800 their business partner along to the meeting, the privilege is 545 00:25:29,800 --> 00:25:32,680 almost certainly waived. What about agents of the lawyer, 546 00:25:32,680 --> 00:25:35,400 like a consultant or an expert? The protection is a little 547 00:25:35,400 --> 00:25:38,080 stronger there. If the lawyer hires, say, an 548 00:25:38,080 --> 00:25:40,760 accountant to help them understand complex financial 549 00:25:40,760 --> 00:25:43,760 documents so they can give legal advice, that accountant is 550 00:25:43,760 --> 00:25:45,360 likely within the privilege bubble. 551 00:25:45,680 --> 00:25:48,600 It's about whether the agent is helping the lawyer provide legal 552 00:25:48,600 --> 00:25:50,040 services. So what about? 553 00:25:50,040 --> 00:25:53,320 Mistakes in E discovery. You're producing a million 554 00:25:53,320 --> 00:25:56,480 documents. What if one privileged e-mail 555 00:25:56,480 --> 00:25:59,320 slips through? Is the privilege on that e-mail 556 00:25:59,320 --> 00:26:01,800 and maybe that whole topic gone forever? 557 00:26:01,920 --> 00:26:04,760 It used to be a huge risk, but now we have Federal Rule of 558 00:26:04,760 --> 00:26:07,520 Evidence 5O2, which acts as a critical safety net. 559 00:26:07,680 --> 00:26:10,680 How does 5O2 help? Rule 5 O 2B says that an 560 00:26:10,720 --> 00:26:13,960 inadvertent disclosure does not act as a waiver if the party 561 00:26:13,960 --> 00:26:17,440 took reasonable steps to prevent it, and once they realized the 562 00:26:17,440 --> 00:26:20,200 mistake, they took prompt steps to get it back. 563 00:26:20,440 --> 00:26:22,920 The claw back. The claw back and whether your 564 00:26:22,920 --> 00:26:26,000 steps were reasonable often depends on what courts call the 565 00:26:26,000 --> 00:26:28,680 lowest sportswear factors. What are they looking for? 566 00:26:28,680 --> 00:26:30,200 Did you have a good review process? 567 00:26:30,200 --> 00:26:32,600 Did you use search terms? How many documents slip through 568 00:26:32,600 --> 00:26:35,120 compared to the total? And how fast did you act once 569 00:26:35,120 --> 00:26:37,560 you found out? Having a solid, documented 570 00:26:37,560 --> 00:26:39,480 review plan is your best defense. 571 00:26:39,640 --> 00:26:41,920 OK. Last point on privilege waivers, 572 00:26:42,160 --> 00:26:44,840 Yeah, implied waiver or the at issue doctrine? 573 00:26:44,920 --> 00:26:47,120 This is when you waive the privilege without actually 574 00:26:47,120 --> 00:26:49,640 disclosing the communication. It happens when you make the 575 00:26:49,640 --> 00:26:52,240 legal advice a part of your claim or defense. 576 00:26:52,360 --> 00:26:55,240 The classic example is saying I didn't break the because my 577 00:26:55,240 --> 00:26:57,520 lawyer told me what I was doing was legal. 578 00:26:57,720 --> 00:26:59,960 Exactly. You can't use the advice as a 579 00:26:59,960 --> 00:27:02,880 sword in the case and then use the privilege as a shield to 580 00:27:02,880 --> 00:27:04,880 hide what that advice actually was. 581 00:27:05,280 --> 00:27:07,520 You've put it at issue, so you have to disclose it. 582 00:27:07,640 --> 00:27:11,160 OK, let's pivot to work product. We said it can be overcome. 583 00:27:11,280 --> 00:27:12,240 How? Right. 584 00:27:12,240 --> 00:27:15,280 So we have to distinguish between fact work product and 585 00:27:15,280 --> 00:27:18,440 opinion work product. Fact work product is just the 586 00:27:18,440 --> 00:27:20,320 raw information the lawyer gathered. 587 00:27:20,600 --> 00:27:24,040 Notes from a witness interview, photos of an accident scene. 588 00:27:24,600 --> 00:27:27,840 To get that stuff, the other side has to meet a tough 589 00:27:27,880 --> 00:27:31,080 three-part test. They have to show a substantial 590 00:27:31,080 --> 00:27:33,840 need for it, that they're unable to get the substantial 591 00:27:33,840 --> 00:27:36,600 equivalent of it on their own, and that they can't get it 592 00:27:36,800 --> 00:27:40,320 without undue hardship. So a witness who has since died 593 00:27:40,320 --> 00:27:43,200 or a scene that has changed. Those are the classic examples 594 00:27:43,200 --> 00:27:47,240 where a court might order you to turn over fact work product, but 595 00:27:47,240 --> 00:27:49,240 opinion work product is a different story. 596 00:27:49,440 --> 00:27:50,840 This is the lawyers thoughts, right? 597 00:27:51,640 --> 00:27:54,760 Their mental impressions, legal theories, Strategy notes. 598 00:27:54,880 --> 00:27:57,960 Yes, and that gets nearly absolute protection under the 599 00:27:57,960 --> 00:28:00,440 rules. It is almost impossible for the 600 00:28:00,440 --> 00:28:03,840 other side to get their hands on a lawyer's memo analyzing the 601 00:28:03,840 --> 00:28:07,560 weaknesses of their own case. And finally, let's nail down the 602 00:28:07,560 --> 00:28:11,240 single biggest exam distinction between these two on waivers. 603 00:28:11,240 --> 00:28:14,400 This is crucial because attorney-client privilege is all 604 00:28:14,400 --> 00:28:17,440 about confidentiality. Sharing the privileged document 605 00:28:17,440 --> 00:28:19,440 with almost any third party waives it. 606 00:28:19,600 --> 00:28:22,600 But work product isn't about confidentiality in the same way. 607 00:28:22,720 --> 00:28:24,080 Right. It's about protecting the 608 00:28:24,080 --> 00:28:28,320 adversarial process so you can share your work product with a 609 00:28:28,320 --> 00:28:31,960 friendly third party, someone on your side, without waiving the 610 00:28:31,960 --> 00:28:33,560 protection. Like sharing an internal 611 00:28:33,560 --> 00:28:36,720 investigation report with a Co defendant or even a government 612 00:28:36,720 --> 00:28:38,800 agency you're cooperating with. Exactly. 613 00:28:38,800 --> 00:28:41,920 The waiver for work product only happens when you disclose it to 614 00:28:41,960 --> 00:28:45,200 an adversary or in a way that makes it likely your adversary 615 00:28:45,200 --> 00:28:47,920 will get it. That robustness makes it an 616 00:28:47,920 --> 00:28:50,840 incredibly important tool. OK, so we've talked about the 617 00:28:50,840 --> 00:28:52,400 rules of engagement for the lawyers. 618 00:28:52,680 --> 00:28:55,680 Now let's talk about the referee, the judge and the tool 619 00:28:55,680 --> 00:28:57,880 they used to control the game, which is Rule 16. 620 00:28:58,160 --> 00:29:00,520 Rule 16 is all about case management. 621 00:29:00,840 --> 00:29:04,640 It reflects this modern idea that a judge shouldn't just be a 622 00:29:04,640 --> 00:29:08,240 passive umpire, they need to actively manage the case. 623 00:29:08,520 --> 00:29:11,960 For sure, the goals of Rule 16 are all about efficiency, 624 00:29:12,160 --> 00:29:15,520 speeding things up, establishing early control, cutting down on 625 00:29:15,520 --> 00:29:17,880 wasteful fights, and just generally making the whole 626 00:29:17,880 --> 00:29:20,120 process work better. And the very first thing that 627 00:29:20,120 --> 00:29:23,720 comes out of Rule 16 is the single most important document 628 00:29:23,720 --> 00:29:26,760 in the pretrial phase, the scheduling order. 629 00:29:26,880 --> 00:29:30,720 The scheduling order under Rule 16 B is the road map for the 630 00:29:30,720 --> 00:29:33,080 entire case. The judge has to issue one. 631 00:29:33,280 --> 00:29:36,640 It sets all the key deadlines. Deadlines for adding new parties 632 00:29:36,840 --> 00:29:39,400 for filing motions. And most importantly, a deadline 633 00:29:39,400 --> 00:29:41,160 for when all discovery must be completed. 634 00:29:41,320 --> 00:29:44,280 It also often includes specific rules for the case, like how to 635 00:29:44,280 --> 00:29:48,000 handle ESI or agreements on how to handle privileged documents 636 00:29:48,000 --> 00:29:50,520 that get produced by mistake. The clawback agreements we just 637 00:29:50,520 --> 00:29:51,520 talked about. Exactly. 638 00:29:51,520 --> 00:29:55,360 Now here is a massive point for exams, the standard for changing 639 00:29:55,360 --> 00:29:57,040 that scheduling order. Right. 640 00:29:57,160 --> 00:30:00,840 The rule recognizes that things can change early in a case, so 641 00:30:00,840 --> 00:30:03,920 the standard is flexible. A scheduling order can be 642 00:30:03,920 --> 00:30:06,760 modified for good cause with the judge's consent. 643 00:30:06,760 --> 00:30:10,720 So if you've been diligent, but a key deposition reveals a whole 644 00:30:10,720 --> 00:30:13,680 new line of inquiry, you can probably show a good cause to 645 00:30:13,680 --> 00:30:16,120 get more time. Probably it's a forgiving 646 00:30:16,120 --> 00:30:19,240 standard, but you have to contrast that with the order 647 00:30:19,240 --> 00:30:22,680 that comes at the very end of the process, the final pretrial 648 00:30:22,680 --> 00:30:26,240 order under Rule 16 E. This is a document created right 649 00:30:26,240 --> 00:30:30,080 before trial that lists all the witnesses, all the exhibits, all 650 00:30:30,080 --> 00:30:33,320 the agreed upon facts. It basically becomes the script 651 00:30:33,320 --> 00:30:35,880 for the trial. It completely supersedes the 652 00:30:35,880 --> 00:30:38,360 pleadings. If an issue isn't in that final 653 00:30:38,360 --> 00:30:41,440 order, you've probably waived your right to bring it up at 654 00:30:41,440 --> 00:30:43,720 trial. And because it's so final, the 655 00:30:43,720 --> 00:30:45,920 standard to change it is much, much tougher. 656 00:30:46,000 --> 00:30:48,960 Incredibly tough. The final pretrial order can 657 00:30:48,960 --> 00:30:51,640 only be modified to prevent manifest injustice. 658 00:30:51,640 --> 00:30:53,440 That's a huge hurdle. It's one of the highest 659 00:30:53,440 --> 00:30:56,200 standards in Civil Procedure. You can't just change your mind 660 00:30:56,200 --> 00:30:57,720 about a witness a week before trial. 661 00:30:57,800 --> 00:31:00,560 You have to show that something truly unjust will happen if the 662 00:31:00,560 --> 00:31:03,840 order isn't changed. OK, finally, let's talk about 663 00:31:03,840 --> 00:31:05,520 what happens when people break the rules. 664 00:31:06,480 --> 00:31:08,960 The sanctions, the teeth, the system. 665 00:31:09,120 --> 00:31:12,360 The whole system is policed by sanctions, mostly found in Rule 666 00:31:12,360 --> 00:31:14,680 37, but also in a couple of other key places. 667 00:31:14,680 --> 00:31:16,000 Let's start with the most common one. 668 00:31:16,920 --> 00:31:20,240 What happens if you fail to make your mandatory disclosures under 669 00:31:20,240 --> 00:31:24,080 Rule 26A or you fail to supplement an answer? 670 00:31:24,080 --> 00:31:27,880 That's Rule 37 C and the sanction is almost automatic. 671 00:31:27,960 --> 00:31:31,320 It's exclusion you are not allowed to use that information 672 00:31:31,320 --> 00:31:34,080 or that witness at trial. Unless you can prove the failure 673 00:31:34,080 --> 00:31:36,120 was harmless or you had a really good reason for. 674 00:31:36,120 --> 00:31:39,000 It right, but the default is you didn't disclose it, you don't 675 00:31:39,000 --> 00:31:41,320 get to use it. It's a powerful incentive to be 676 00:31:41,320 --> 00:31:43,560 thorough. OK, but what if you don't just 677 00:31:43,560 --> 00:31:47,840 fail to disclose, you actively disobey a direct court order to 678 00:31:47,840 --> 00:31:49,680 produce something? Now you're in a much more 679 00:31:49,680 --> 00:31:53,080 dangerous territory. That's Rule 37 B, and it gives 680 00:31:53,080 --> 00:31:55,960 the judge a whole menu of much more severe sanctions. 681 00:31:56,080 --> 00:31:58,280 Like what? The judge can order that certain 682 00:31:58,280 --> 00:32:00,600 facts be taken as established against you. 683 00:32:00,800 --> 00:32:03,400 They can prohibit you from introducing other evidence. 684 00:32:03,680 --> 00:32:06,880 They can strike your pleadings and in the worst cases, they can 685 00:32:06,880 --> 00:32:10,200 enter default judgement or dismiss your case entirely. 686 00:32:10,520 --> 00:32:13,640 So defying a court order is the fastest way to lose your case. 687 00:32:13,840 --> 00:32:17,560 Without a doubt, and we have to mention one more key rule here, 688 00:32:17,560 --> 00:32:21,720 which is Rule 26 G It's the lawyer's ethical certification. 689 00:32:21,720 --> 00:32:23,000 This is the signature requirement. 690 00:32:23,000 --> 00:32:26,800 It's the Rule 11 of discovery. Every time a lawyer signs a 691 00:32:26,800 --> 00:32:30,560 discovery request or a response, they are certifying to the court 692 00:32:30,560 --> 00:32:33,680 that it's legally warranted, that it's not for an improper 693 00:32:33,680 --> 00:32:37,440 purpose like harassment. That's not unduly burdensome or 694 00:32:37,440 --> 00:32:39,720 expensive. It ties directly back to 695 00:32:39,720 --> 00:32:41,400 proportionality. Exactly. 696 00:32:41,400 --> 00:32:44,240 It makes proportionality an ethical obligation for the 697 00:32:44,240 --> 00:32:48,200 lawyer, and if you violate 26G without a good reason, the court 698 00:32:48,200 --> 00:32:51,440 must impose sanctions, usually making you pay the other side's 699 00:32:51,440 --> 00:32:54,000 attorneys fees for dealing with your improper filing. 700 00:32:54,600 --> 00:32:58,280 And Rule 16 basically just says that all those Rule 37 sanctions 701 00:32:58,280 --> 00:33:01,280 can also apply if you blow off a court conference or aren't 702 00:33:01,280 --> 00:33:03,040 prepared. The message from the rules is 703 00:33:03,040 --> 00:33:05,480 clear. This is a managed, cooperative 704 00:33:05,480 --> 00:33:08,960 process and there are serious consequences for failing to play 705 00:33:08,960 --> 00:33:11,120 by the rules. That feels like a really 706 00:33:11,120 --> 00:33:15,200 comprehensive tour of chapter 5, so let's try to synthesize this. 707 00:33:15,760 --> 00:33:19,200 If you're walking into an exam, what are the three absolute must 708 00:33:19,200 --> 00:33:22,680 know distinctions? OK #1 the scope of discovery is 709 00:33:22,680 --> 00:33:25,880 now governed by proportionality under Rule 26B1. 710 00:33:26,200 --> 00:33:29,280 It's not just relevance. And remember, the burden is on 711 00:33:29,280 --> 00:33:32,600 the person resisting discover to prove it's disproportionate with 712 00:33:32,640 --> 00:33:36,800 actual facts and evidence. #2 privilege waiver attorney-client 713 00:33:36,800 --> 00:33:39,600 privilege is fragile. Share with almost any outsider 714 00:33:39,600 --> 00:33:42,520 and it's gone. Work product is robust, you can 715 00:33:42,520 --> 00:33:44,840 share it with friendly third parties and the protection 716 00:33:44,840 --> 00:33:48,720 survives. And #3 modifying court orders to 717 00:33:48,720 --> 00:33:50,280 change the early scheduling order. 718 00:33:50,280 --> 00:33:53,720 Under 16B, you only need good cause to change the final 719 00:33:53,720 --> 00:33:56,360 pretrial order. Under 16 E on the eve of trial, 720 00:33:56,520 --> 00:34:00,120 you need to show it's necessary to prevent manifest injustice to 721 00:34:00,160 --> 00:34:02,760 very different standards for two very different stages of the 722 00:34:02,760 --> 00:34:05,080 case. Knowing those three points cold 723 00:34:05,080 --> 00:34:08,800 will get you a very long way. It's clear that the real battle 724 00:34:08,800 --> 00:34:12,679 in most lawsuits today happens right here in Discovery. 725 00:34:12,719 --> 00:34:15,840 It really does, and it raises an important question, I think, for 726 00:34:15,920 --> 00:34:17,440 anyone about to enter this world. 727 00:34:17,920 --> 00:34:21,480 Given how complex ESI is and how severe the sanctions for 728 00:34:21,480 --> 00:34:25,000 squalation can be, what does a company actually need to do 729 00:34:25,000 --> 00:34:27,520 internally to survive that duty to preserve? 730 00:34:28,159 --> 00:34:31,600 What are the specific concrete steps a brand new junior lawyer 731 00:34:31,600 --> 00:34:33,920 should be thinking about on day one of a case to make sure 732 00:34:33,920 --> 00:34:36,840 they've taken those reasonable steps and avoid a career 733 00:34:36,840 --> 00:34:39,480 defining mistake? Because hoping for the best is 734 00:34:39,480 --> 00:34:42,280 not a strategy. A proactive plan is the only 735 00:34:42,280 --> 00:34:44,320 real defense. That's a powerful thought to 736 00:34:44,320 --> 00:34:46,679 leave you with as you go from studying these rules to actually 737 00:34:46,920 --> 00:34:49,040 living them. All right, let's talk about 738 00:34:49,040 --> 00:34:50,920 discovery. If you're getting ready for your 739 00:34:50,920 --> 00:34:53,600 Sieve Pro final, you already know this topic can feel like a 740 00:34:53,600 --> 00:34:56,679 whole separate course. It's just so dense, so full of 741 00:34:56,679 --> 00:34:59,400 rules, and you can bet it's going to be a huge chunk of your 742 00:34:59,400 --> 00:35:00,840 exam. But don't sweat it. 743 00:35:00,840 --> 00:35:03,960 And we're going to break it down step by step with a clear, exam 744 00:35:03,960 --> 00:35:06,800 focused game plan. You know the feeling, right? 745 00:35:07,040 --> 00:35:09,960 You turn the page in the exam booklet and there it is, this 746 00:35:09,960 --> 00:35:13,000 massive fact pattern about deleted emails, document 747 00:35:13,000 --> 00:35:16,120 requests, angry lawyers, and your heart just plummets. 748 00:35:16,400 --> 00:35:18,720 When you're under that kind of pressure, all those rules can 749 00:35:18,720 --> 00:35:21,640 feel totally paralyzing. So where do you even start to 750 00:35:21,640 --> 00:35:23,320 make sure you're getting all the points you can? 751 00:35:24,000 --> 00:35:26,480 OK, First things first, don't panic. 752 00:35:26,800 --> 00:35:29,440 The key here isn't memorizing every single rule. 753 00:35:29,480 --> 00:35:32,360 It's having a solid analytical framework ready to go. 754 00:35:32,640 --> 00:35:35,240 Think of it as a mental checklist, a road map you can 755 00:35:35,240 --> 00:35:37,840 apply to any discovery problem your professor throws at you. 756 00:35:37,840 --> 00:35:40,200 It's going to let you work through the issues methodically, 757 00:35:40,240 --> 00:35:43,160 spot all the traps, and build an answer that scores big. 758 00:35:43,800 --> 00:35:47,280 And here's that very road map. Our attack plan has 6 parts. 759 00:35:47,640 --> 00:35:49,280 First, we're going to get the big picture. 760 00:35:49,680 --> 00:35:52,640 Then we'll dive into the absolute heart of discovery, 761 00:35:52,840 --> 00:35:56,200 scope, and proportionality. After that, we'll look at the 762 00:35:56,200 --> 00:35:59,200 specific tools you used to get information, the Shields that 763 00:35:59,200 --> 00:36:02,040 can block those tools, and what happens when people break the 764 00:36:02,040 --> 00:36:03,920 rules. And we'll wrap it all up with a 765 00:36:03,920 --> 00:36:07,280 final checklist to make sure you don't fall for any common exam 766 00:36:07,280 --> 00:36:09,760 tricks. So let's just remember what this 767 00:36:09,760 --> 00:36:12,280 is all about. The whole point of discovery is 768 00:36:12,280 --> 00:36:14,280 to get rid of surprises at trial. 769 00:36:14,560 --> 00:36:17,560 It's about making sure cases are decided on the facts, not 770 00:36:17,560 --> 00:36:19,520 because one side was better at hiding the ball. 771 00:36:20,080 --> 00:36:22,920 But, and this is key, it is not a free for all. 772 00:36:23,160 --> 00:36:26,240 This whole process is governed by a strict set of rules and 773 00:36:26,240 --> 00:36:28,280 we're about to unpack them, right? 774 00:36:28,720 --> 00:36:31,120 So this is the absolute most important starting point. 775 00:36:31,480 --> 00:36:33,680 Before you even think about how you're going to get a piece of 776 00:36:33,680 --> 00:36:36,280 information, you have to answer the threshold question. 777 00:36:36,480 --> 00:36:39,160 Is this information even discoverable in the 1st place? 778 00:36:39,560 --> 00:36:42,120 This is always, always restart your exam answer. 779 00:36:42,440 --> 00:36:45,320 And it all comes down to one rule, Federal Rule of Civil 780 00:36:45,320 --> 00:36:49,240 Procedure 26B1. OK, you really need to get this 781 00:36:49,240 --> 00:36:53,080 modern definition down cold. Notice the two big parts. 1st, 782 00:36:53,240 --> 00:36:55,840 the information has to be relevant to a party's claim or 783 00:36:55,840 --> 00:36:56,960 defense. You see that? 784 00:36:57,120 --> 00:36:59,520 That old super broad language about being relevant to the 785 00:36:59,520 --> 00:37:01,640 subject matter of the case, it's gone. 786 00:37:01,640 --> 00:37:05,400 And that is a huge change. Second, the request has to be 787 00:37:05,400 --> 00:37:06,920 proportional. You need both. 788 00:37:07,160 --> 00:37:09,480 If something's relevant but not proportional, it's out. 789 00:37:10,040 --> 00:37:13,200 This slide right here. This is the money slide for your 790 00:37:13,200 --> 00:37:15,920 scope analysis. When you get an exam question 791 00:37:15,920 --> 00:37:18,600 with a discovery dispute, you need to go through these six 792 00:37:18,600 --> 00:37:21,120 factors one by one. I'm serious. 793 00:37:21,120 --> 00:37:23,520 This isn't optional. The rule requires the court to 794 00:37:23,520 --> 00:37:26,200 consider them on your exam. You should literally list them 795 00:37:26,200 --> 00:37:28,480 out and apply the facts from the hypo to each one. 796 00:37:28,760 --> 00:37:31,400 That's how you prove you know what you're talking about, and 797 00:37:31,400 --> 00:37:33,440 this is perfect for spotting common traps. 798 00:37:33,720 --> 00:37:36,560 First off, if you write the phrase reasonably calculated to 799 00:37:36,560 --> 00:37:38,960 lead to the discovery of admissible evidence on your exam 800 00:37:38,960 --> 00:37:40,840 as the standard, you're going to lose points. 801 00:37:41,240 --> 00:37:44,400 That language was taken out of the rule for a reason. 2nd, just 802 00:37:44,400 --> 00:37:46,760 cause the other party is a huge corporation doesn't mean you get 803 00:37:46,760 --> 00:37:48,840 a blank check. The resources are just one 804 00:37:48,840 --> 00:37:51,400 factor out of six. And finally, you can't just 805 00:37:51,400 --> 00:37:53,360 object by saying this is too expensive. 806 00:37:53,600 --> 00:37:55,280 You have to prove it with specific facts. 807 00:37:56,040 --> 00:37:58,800 OK, so now we know what we can ask for. 808 00:37:59,000 --> 00:38:01,160 So how do we actually ask for it? 809 00:38:01,600 --> 00:38:04,200 Once you've figured out that the information is in scope, you've 810 00:38:04,200 --> 00:38:06,640 got to pick the right tool from the Discovery Tool kit. 811 00:38:06,960 --> 00:38:10,160 The federal rules give us a very specific set of options, and 812 00:38:10,160 --> 00:38:11,680 choosing the right one is crucial. 813 00:38:12,480 --> 00:38:16,160 This chart is a lifesaver. Seriously, the biggest thing to 814 00:38:16,160 --> 00:38:18,880 remember for your exam is who you can use these on. 815 00:38:19,080 --> 00:38:22,000 See, you can depose pretty much anyone, party or not. 816 00:38:22,120 --> 00:38:24,040 You just need a subpoena for the non parties. 817 00:38:24,360 --> 00:38:26,040 Same goes for requests for production. 818 00:38:26,200 --> 00:38:29,760 But, and here's the trap, interrogatories and requests for 819 00:38:29,760 --> 00:38:33,200 admission, you can only send those to other parties in the 820 00:38:33,200 --> 00:38:35,680 lawsuit. Mixing that up is such a common 821 00:38:35,680 --> 00:38:39,200 mistake, and let's just stop and look at this number for a 822 00:38:39,200 --> 00:38:43,440 second. 25 that's your limit for written in terror gadatories 823 00:38:43,440 --> 00:38:46,440 under Rule 33. This is one of those hard 824 00:38:46,440 --> 00:38:49,040 numbers that professors just love to test because it's a 825 00:38:49,040 --> 00:38:51,880 simple gotcha. And remember, that number 826 00:38:51,880 --> 00:38:54,920 includes all the little subparts, so you can't get 827 00:38:54,920 --> 00:38:59,440 clever by asking question 25A25B25C. 828 00:38:59,680 --> 00:39:03,160 It doesn't work. So you've done everything right. 829 00:39:03,360 --> 00:39:05,920 You figured out something is in scope, you've used the right 830 00:39:05,920 --> 00:39:09,200 tool, but the other side still refuses to hand it over. 831 00:39:09,360 --> 00:39:11,760 What now? Well, that brings us to the 832 00:39:11,760 --> 00:39:15,080 great Shields of discovery privilege and the work product 833 00:39:15,080 --> 00:39:17,240 doctrine. These are the main reasons a 834 00:39:17,240 --> 00:39:19,760 party can legally say, Nope, you can't have that. 835 00:39:20,440 --> 00:39:23,240 It is so, so important not to mix these two up. 836 00:39:23,440 --> 00:39:25,840 attorney-client privilege protects the communication 837 00:39:25,840 --> 00:39:29,520 itself, the conversation, and it's the client who holds that 838 00:39:29,520 --> 00:39:31,640 privilege. Work product is different. 839 00:39:31,800 --> 00:39:35,200 It protects materials, you know, notes, memos, spreadsheets that 840 00:39:35,200 --> 00:39:37,120 were prepared because of the litigation. 841 00:39:37,440 --> 00:39:40,240 The attorney holds this one. And while you can sometimes get 842 00:39:40,240 --> 00:39:43,120 access to fact work product, like a witness statement, if you 843 00:39:43,120 --> 00:39:46,400 can show a major need for it, opinion work product, which is 844 00:39:46,400 --> 00:39:49,000 the lawyer's thoughts and strategies, that stuff gets 845 00:39:49,000 --> 00:39:52,560 nearly absolute protection. Courts will bend over backwards 846 00:39:52,560 --> 00:39:54,520 to protect a lawyer's mental impressions. 847 00:39:55,240 --> 00:39:57,680 This quote from the famous case Hickman V. 848 00:39:57,680 --> 00:40:00,800 Taylor really gets to the core of why work product is so 849 00:40:00,800 --> 00:40:02,840 protected. The whole idea is that if 850 00:40:02,840 --> 00:40:05,080 lawyers knew their opponents could just demand to see their 851 00:40:05,080 --> 00:40:08,440 notes and strategy memos, they'd stop writing anything down. 852 00:40:08,520 --> 00:40:11,120 It would completely mess up our adversarial system. 853 00:40:11,400 --> 00:40:14,000 The doctrine is there to protect the attorneys private thought 854 00:40:14,000 --> 00:40:16,560 process so they can prepare their case without having the 855 00:40:16,560 --> 00:40:18,840 other side constantly reading over their shoulder. 856 00:40:19,680 --> 00:40:22,520 So what happens if you screw up? You're producing thousands of 857 00:40:22,520 --> 00:40:25,880 documents and whoops, you accidentally send over a super 858 00:40:25,880 --> 00:40:28,800 privileged e-mail? This is a classic exam question. 859 00:40:29,080 --> 00:40:31,600 The procedure, which we call the clawback rule, is really 860 00:40:31,600 --> 00:40:34,240 straightforward. First you notify the other side 861 00:40:34,240 --> 00:40:36,600 immediately. They have to stop reading it and 862 00:40:36,600 --> 00:40:38,280 they have to return it or destroy it. 863 00:40:38,360 --> 00:40:41,000 They can't use it. Then if they think you're wrong 864 00:40:41,000 --> 00:40:43,480 and it isn't privileged, they can take it to the judge to sort 865 00:40:43,480 --> 00:40:46,040 it out. And that leads us to the dark 866 00:40:46,040 --> 00:40:49,200 side of discovery. What happens when things go 867 00:40:49,200 --> 00:40:52,640 really wrong, not by accident, but because someone failed to 868 00:40:52,640 --> 00:40:55,320 follow the rules? This is the world of sanctions, 869 00:40:55,320 --> 00:40:58,320 and on any modern exam, this is almost certainly going to 870 00:40:58,320 --> 00:41:00,640 involve the destruction of electronically stored 871 00:41:00,640 --> 00:41:04,240 information, or ESI. We're talking emails, texts, 872 00:41:04,240 --> 00:41:08,280 word docs, you name it. So first, what even is 873 00:41:08,280 --> 00:41:11,400 spoliation? It's really just a fancy lawyer 874 00:41:11,400 --> 00:41:15,080 word for destroying evidence. Now, the single most important 875 00:41:15,080 --> 00:41:17,880 part of this definition for your exam is figuring out when the 876 00:41:17,880 --> 00:41:19,880 duty to preserve that evidence starts. 877 00:41:20,240 --> 00:41:22,480 Hint, it's not when the lawsuit is filed. 878 00:41:22,920 --> 00:41:25,960 It's actually earlier than that. The rule coming out of the 879 00:41:25,960 --> 00:41:28,880 famous Zubalake case is that the duty kicks in as soon as 880 00:41:28,880 --> 00:41:30,800 litigation is reasonably foreseeable. 881 00:41:31,640 --> 00:41:35,200 OK, so the fact pattern says emails were deleted after this 882 00:41:35,200 --> 00:41:38,240 duty to preserve kicked in. You've spotted the spoliation 883 00:41:38,240 --> 00:41:39,360 issue. Awesome. 884 00:41:39,720 --> 00:41:41,880 Now to figure out what happens next. 885 00:41:41,920 --> 00:41:44,880 There is one single question that should guide your entire 886 00:41:44,880 --> 00:41:48,800 analysis under Rule 37 E. What was the person's state of 887 00:41:48,800 --> 00:41:50,400 mind when they deleted the evidence? 888 00:41:50,640 --> 00:41:53,440 Were they just being careless, or were they actively trying to 889 00:41:53,440 --> 00:41:55,720 hide the ball? And this breaks it down 890 00:41:55,720 --> 00:41:58,120 perfectly. There are two paths, and your 891 00:41:58,120 --> 00:42:00,040 analysis has to follow one of them. 892 00:42:00,600 --> 00:42:03,560 If the party was just negligent, maybe a little careless, you're 893 00:42:03,560 --> 00:42:07,040 on the Rule 37 E 1 path. The court can only order 894 00:42:07,040 --> 00:42:10,240 sanctions that are just enough to fix the harm to cure the 895 00:42:10,240 --> 00:42:12,960 prejudice. But if the court finds the party 896 00:42:12,960 --> 00:42:16,120 acted with the intent to deprive the other side of that evidence, 897 00:42:16,360 --> 00:42:19,760 well, now you're on the much scarier path of Rule 37 E 2. 898 00:42:20,160 --> 00:42:22,720 This is where the court can bring out the big guns, like 899 00:42:22,720 --> 00:42:25,920 telling the jury to assume the lost evidence was bad news or 900 00:42:25,920 --> 00:42:27,720 even throwing the entire case out. 901 00:42:29,120 --> 00:42:32,320 OK, we have covered a ton of ground, so let's boil it all 902 00:42:32,320 --> 00:42:35,040 down into a final rapid fire checklist. 903 00:42:35,560 --> 00:42:38,280 These are the most common mistakes I see students make and 904 00:42:38,280 --> 00:42:41,160 the key things you absolutely need to remember walking into 905 00:42:41,160 --> 00:42:44,280 that exam room. OK, let's nail these down. 906 00:42:44,800 --> 00:42:48,800 Scope always, always run through all six proportionality factors 907 00:42:48,800 --> 00:42:51,560 and remember, what's discoverable is way broader than 908 00:42:51,560 --> 00:42:54,760 what's admissible at trial. Don't mix those up Shields 909 00:42:55,080 --> 00:42:58,520 privilege is not work product know the difference supplements. 910 00:42:58,680 --> 00:43:01,480 Remember, there's an ongoing duty to update your answers. 911 00:43:01,680 --> 00:43:04,320 And finally, sanctions. Not every lost e-mail is a 912 00:43:04,320 --> 00:43:06,320 catastrophe. To get those really harsh 913 00:43:06,320 --> 00:43:08,720 sanctions, you have to find intent to deprive. 914 00:43:09,000 --> 00:43:11,360 Getting these things right is what separates AB plus answer 915 00:43:11,360 --> 00:43:13,120 from an A. And I'll just leave you with 916 00:43:13,120 --> 00:43:15,800 this final thought. After going through all these 917 00:43:15,800 --> 00:43:20,000 rules about scope and burden and proportionality, it kind of 918 00:43:20,000 --> 00:43:23,640 makes you wonder, is our justice system really trying to find the 919 00:43:23,720 --> 00:43:26,960 absolute capital T truth, no matter what it costs? 920 00:43:27,280 --> 00:43:31,400 Or have we made a choice that for justice to be just speedy 921 00:43:31,440 --> 00:43:34,160 and inexpensive, we have to settle for a version of the 922 00:43:34,160 --> 00:43:36,960 truth that's been filtered and shaped by what's proportional to 923 00:43:36,960 --> 00:43:38,680 the case? It's something to think about. 924 00:43:38,920 --> 00:43:39,920 Good luck on your finals.