Rule 26(b) - Scope of discovery
Discovery shall include (1) any non-privileged information (2) relevant to a party's claim or defense, and (3) must be proportional to the needs of the case. (4) it can be discovered even if not admissible. (Regarding what information is privileged, consider work product, strategies, and mental observations, which typically are not shared)
Motion to Compel Discovery
A party may move for an order compelling disclosure or discovery. The motion must include a certification that (1) the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery (2) in an effort to obtain it without court action.
Deposition
Non-parties can be deposed through means of a subpoena. So long as the 3rd party testimony is relevant and not privileged, she may be deposed.
Parties only: interrogatories, request for admission, physical/mental exam
Request for (document) production
A party may seek to obtain any non-privileged matter that is relevant to any claim or defense, including any documentary evidence. The proposed discovery must be proportional with the needs of the case.
It is not required that the information itself be admissible at trial.
In case of request for non-party, subpeona is required. To obtain subpoena, P should include a declaration that explains why the records are relevant to the action. If nonparty refuses to produce the records, P can file a motion to hold the nonparty in contempt for failing to comply with the subpoena.
Physical Exam/Mental exam
Request for physical/Mental examination of a party may be sought by opposing party. Requries court order upon showing (i) Physical condiciton is at issue (ii) Good cause for examination.
Physician-patient privilege
There is no federal physician-patient privilege. However, many states including California has privilege re confidential communications made for the purpose of receiving a medical diagnosis and treatment are privileged. However, when the patient puts his physical condition at issue, he cannot invoke such privilege.
Erie doctrine: A federal court sitting in diversity applies federal procedural law and state substantive law. If the application of a rule is outcome determinative, it is substantive and the state law applies.
Work product doctrine
Work product is (1) a document or tangible material prepared by the lawyer (2) in anticipation of litigation. It is generally not discoverable under the work product doctrine.
The court may order the material discoverable, if the party seeking discovery can show a (1) substantial need and (2) undue hardship in obtaining the information by other means.
However, the courts may not order the disclosure of mental impressions, opinions, conclusions, or legal theories of an attorney, as these are considered absolutely protected under the work product doctrine.