Civ Pro II - Discovery – Scope: Marrese

Duty to disclose includes: 

1. Scope of discovery information 

2. Protective orders (POs) 

   • The judge may issue an order limiting discovery. 

Penalties for Failure to Disclose include:

1. Sanctions 

   • What the other side gets 

2. Contempt 

   • Contempt sanctions can be more serious consequences with the court. 

Information must be disclosed if (4)

1. Relevant to any party's claim/defense 

2. Not privileged 

3. Proportional to needs of the case. 

4. Protective Orders 

“Relevant to any party's claim/defense” Rule

Info sought is relevant if it has any tendency to make fact of consequence more or less probable. 

• Ex: asking another party their net worth in a breach of contract case, is not relevant. That would likely be something relevant in a negligence case. 

“Not privileged” Rule

Disclosure of otherwise relevant but confidential info cannot be compelled if it is subject to a privilege recognized by public policy. 

• Common privileges recognized by public policy include: Attorney-Client privilege & Work Product Doctrine 

• Note: Something confidential does not mean privileged. 

“Proportional to needs of the case” Rule

Info is proportional to needs of case if the following factors weigh in favor of disclosure: 

• Importance of issues at stake; 

• Amount in controversy; 

• Parties' relative access to relevant info; 

• Parties' resources; 

• Importance of discovery in resolving issues; 

• And whether burden/expense outweighs benefit 

• If these are not met, the information must be turned over, whether it was asked for or not.

“Protective Orders” Rule

1. Protective order should be issued if disclosure could cause annoyance, embarrassment, oppression, or undue burden of expense (A/E/O/U) 

2. If resisting party: 

   1. Certifies good faith conference or attempt 

   2. Shows good cause 

      1. Good cause = must have evidence 

   3. Demonstrates A/E/O/U 

      1. That evidence demonstrates annoyance (pain in the butt), embarrassment, oppression (any combination of these things, undue hardship (cost too much)). 

   • If these three things are met, the court may order that disclosure be restricted. 

What may protective orders provide?

1. Disclosure not be had 

2. T/P/M conditions attend disclosure (e.g. sign NDA) 

   1. Time, place, and manner restrictions, such as signing an NDA 

3. Disclosure method be limited 

   1. the mechanics of discovery (I.e. you can't be deposed, but your attorney can help you and you don’t have to sit all day for a depo) 

4. Inquiry be limited 

   1. Ex. A P does not have to disclose their entire sexual history over a sexual harassment claim – only with the one who the claim is against 

5. Trade secrets be sealed 

   1. produced under a seal, in a closed envelope and only certain people can have access to it.