More Thoughts About Recent Supreme Court Discovery Decisions

The late May and early June Supreme Court decisions discussed on this blog caused quite a few questions. I discussed some of them and have received more since then.

FCH1 v. Rodriguez

One comment I heard is if a treating physician intends to address the medical opinions of the defense medical expert, FCH1 can be read to require that the treating physician actually disclose an expert report on this topic. Why? The treater is testifying beyond the scope of his treatment. In that circumstance the treater is both an initial and rebuttal, but could only testify about rebuttal in plaintiff’s rebuttal case.

Dornbach v. Dist. Ct.

One question I heard was how does this impact Rocker discovery? Rocker discovery occurs when a party moves to dismiss for lack of jurisdiction and the court orders limited discovery as to jurisdiction before ruling. In that circumstance, discovery itself has not opened nor has an answer been filed, but the ECC clock is still running. What to do? Ask the district court to stay the ECC period in its order permitting Rocker discovery. The other option is for the parties to stipulate to extend the ECC clock.

L.V. Dev. Assocs. v. Dist. Ct.

This decision holding that anything a witness reviews to prepare to testify is automatically discoverable if it refreshes a recollection creates a problem. For instance, at what point is does this start? Meaning, if I send a client a status report and then next week his deposition is noticed and the status report he reviewed before helped refresh his recollection, is that now discoverable? How long does this waiver last? If the client’s deposition is cancelled and rescheduled multiple times, is the attorney effectively prohibited from showing his client anything? In short, be careful what you show your client.