CHAPTER 5 DISCOVERY: FACT AND EXPERT OPINION DEVELOPMENT
| Jurisdiction | United States |
(Dec 1989)
DISCOVERY: FACT AND EXPERT OPINION DEVELOPMENT
Streich, Lang, Weeks & Cardon
Phoenix, Arizona
TABLE OF CONTENTS
Page
I. INTRODUCTION
II. BACKGROUND AND EVOLUTION OF DISCOVERY
A. Historical Background
B. Goals of Modern Discovery
C. Scope of Modern Discovery
D. Recent Trends in Discovery Conduct
III. PREPARING AND USING INTERROGATORIES, DOCUMENT REQUESTS AND DEPOSITIONS
A. Interrogatories and Requests for Production of Documents
1. Interrogatories
2. Production and inspection of documents and things
3. Objections to interrogatories and requests for production of documents
4. Duties of supplementation and reasonable inquiry
B. Depositions
1. Role of depositions
2. Preparing for depositions
3. Videotaping depositions
4. Special concerns for taking depositions of experts
IV. DOCUMENT MANAGEMENT AND PRIVILEGES
A. Document Management
1. Litigation support
B. Privileges
1. Attorney-client privilege
2. Waivers of attorney-client privilege
3. Attorney work-product doctrine
4. Waivers of attorney work-product protection
5. Miscellaneous privileges
6. Guidelines for preserving confidential information from discovery
V. DISCOVERY AND USE OF EXPERT OPINIONS
A. Use of Experts in Environmental and Natural Resource Litigation
1. The decision to hire an expert
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2. Finding the "perfect expert."
3. Developing expert opinion during discovery
B. Discovery of Experts, Their Opinions and Documents They Rely Upon
1. Consultative experts
2. Testifying experts
a. Evidentiary basis for expert opinion
b. Discovery of testifying experts
VI. CONCLUSION
VII. BIBLIOGRAPHY
A. Articles
B. Books
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I. INTRODUCTION.
The recent surge in environmental1 litigation provides both litigators and substantive environmental attorneys new and exciting opportunities for professional development. Within this emerging area of law attorneys can develop many different niches of legal practice from within state, local and federal laws, in government entities, in industry and in private practice. In addition to this rapidly growing area of legal practice, there are great demands upon and new opportunities for a wide variety of technical and administrative personnel. There are challenging positions for environmental specialists in fields such as products and manufacturing industry, health and medicine, incineration, transportation, sampling and monitoring consultation, and waste treatment and management operations.
In order to prevail in a modern environmental case, attorneys must combine solid litigation skills with both technical expertise and in-depth substantive knowledge of environmental statutes and natural resource laws. This is especially true during the discovery phase of litigation when each party's claims, theories and evidence must be developed and defined with precision. Stated in military terms, well-conducted discovery provides the ordinance for the case-in-chief, guidance for artillery used in rebuttal and develops protective armor for witnesses. During the discovery phase of environmental litigation, counsel must develop not only a solid understanding of complex substantive laws, but also a finely tuned comprehension of highly technical terminology and scientific principles. The successful environmental litigator will skillfully utilize the discovery process to develop a persuasive case from a labyrinth of elaborate laws and regulations and tremendous volumes of tedious technical detail.
The purpose of this paper is to analyze the role of discovery in the specific context of environmental litigation. This discussion begins with a review of the general historical
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background and evolution of modern discovery. Next, the discussion turns to the preparation and use of interrogatories, document requests and depositions. This is followed by an analysis of document management and two fundamental privileges, attorney-client relationship and attorney work-product. Finally, the paper focuses on discovery and use of experts in environmental litigation. This discussion covers both consultative and testifying experts, and includes information on finding experts and working with them to develop opinions. The format and style selected for this paper anticipate that its readers will be both lawyers and non-lawyers.
II. BACKGROUND AND EVOLUTION OF DISCOVERY.
A. Historical Background.
Prior to the adoption of the Federal Rules of Civil Procedure in 1937, federal court jurisdiction was divided between law and equity.2 While adjudicating suits in equity, federal courts followed rules promulgated by the Supreme Court that provided for "bills of discovery" allowing adversaries to discover evidence from one another. Federal courts generally permitted no other discovery in equity suits. While adjudicating actions at law, federal courts followed local state court discovery rules. This meant that in actions at law, federal courts permitted no meaningful discovery, except for depositions to preserve testimony from witnesses expected to be unavailable for trial.3
In pre-rule times, litigants narrowed the issues for trial through highly technical pleading procedures. Trials thus involved considerable secrecy and surprise. Dissatisfaction with this situation ultimately led to adoption of the modern federal rules. These new rules greatly simplified pleading practice. Most importantly, however, these rules also established a new and vital role for discovery—i.e., its use as a tool for focusing and narrowing issues.4
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B. Goals of Modern Discovery.
The modern rules of federal discovery essentially seek to implement three goals: (1) achieve a system in which ultimate trial results are based on the merits rather than on advantages gained by surprise; (2) facilitate a realistic appraisal of settlement possibilities; and (3) prevent parties from benefitting unfairly from an opponent's diligent and fruitful trial preparation efforts.5 In the landmark case of Hickman v. Taylor, the Supreme Court described the modern role of discovery:
The various instruments of discovery now serve (1) as a device, along with the pretrial hearing under Rule 16, to narrow and clarify the basic issues between the parties and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to those issues. Thus civil trials in the federal courts are no longer carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge and facts before trial.6
C. Scope of Modern Discovery.
The broad "relevance standard" of Rule 26 encompasses the foundation of modern discovery rules.
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.7
Under this rule, parties can discover information without regard to its admissibility at trial; the information sought need only be "reasonably calculated to lead to discovery of admissible
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evidence."8 Consistent with the broad "relevance" language of Rule 26, federal courts have allowed discovery of many types of information concerning such topics as peripheral disputes, jurisdiction, venue and damages.9
D. Recent Trends in Discovery Conduct.
The expansive reach of modern federal discovery has led to what one author aptly calls the "Jekyll-and-Hyde" personality of our pretrial discovery system:
The Jekyll-like half remains true to [the] essential qualities [of discovery], striving dutifully to accomplish the task of ascertaining the issues of a case, and developing a comprehensive grasp of the facts; while the less disciplined Hyde-like half is diverted toward the purpose of using discovery as a dilatory tactic, designed to enmesh the case in pretrial minutia so that it will never reach meaningful resolution.10
Thus, while discovery tools such as interrogatories and document requests provide crucial avenues for finding the truth and delivering justice, they also can be used to hinder that process. Excessive discovery can exact huge costs and burdens on litigants, disrupt business and personal lives and ultimately delay justice.
The use of discovery rules to force a favorable outcome by exhausting and embarrassing the opponent—"playing hardball"— is a tactic known to all experienced litigators. It is important, however, not to confuse litigation "hardball" with pure litigation "thoroughness."11 Covering all the bases and closing all the loopholes in your case is one of the litigator's most essential roles. Accomplishing that goal without playing unfair "hardball" often takes years of experience and is accompanied by wrinkles gained in the litigation arena.
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In response to heightened concern over unreasonable discovery conduct, Rules 11, 16 and 26 were amended in 1983 to empower and encourage judges to control discovery abuses. The essence of the amendments to Rules 11 and 16 is to impose an objective standard of reasonableness on an attorney's duty to make a reasonable inquiry into factual accuracy and to assert only those legal arguments for which there is a good faith basis. Failure to meet this standard can subject counsel and clients to serious sanctions.12
In spite of growing consensus to eliminate harassing and excessive discovery, counsel conducting discovery must discharge the obligation of representation with zeal. Fair, reasonable and zealous discovery need not...
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