Civil Procedure
Prof. Devine's Class Notes
1/28/2008
We continued our discussion of Discovery Relevance;
7. It is because
"relevance" for trial purposes is a matter of law that we get the
result in Steffan v. Cheney, p 411;
a. Facts:
(1) Steffan admitted to being a homosexual;
(2) After an administrative board recommended
he be dismissed from the Naval Academy, he resigned;
(3) There was no statement in the case that
Steffan had ever engaged in any homosexual acts while a midshipperson;
(4) Steffan claimed that his resignation was
largely forced and that the administrative board recommendation
amounted to a constructive discharge;
(5) He claimed that he could not be dismissed
merely because he was a homosexual;
(6) During discovery, Steffan was asked by the
government if he engaged in any homosexual acts while at the
academy; he declined to answer,
(7) Because he refuses to answer this
question, the court dismisses his complaint as a discovery sanction;
b. Under
the holding in Precoat Metals , aren’t Steffans practices in
dealing with his homosexuality, relevant?
(1) If one looked only at the holding in
Precoat Metals, the practices of Steffan would surely be relevant;
(2) The court in Steffan, however, looks to
the holding in SEC v. Chenery Corp., cited on p 411;
(a) "Judicial review of an
administrative action is limited to the grounds disclosed in the record;
(b) Because the record
disclosed that the reason for the action by the administrative review
board was the fact of Steffan's homosexuality alone, the government was
stuck with that;
(c) It could not go beyond
that finding and argue, as it tried to on p 411, that grounds also
existed that would prevent Steffan from being reinstated;
c.
Condit v. Dunne, Devine, p 95, based on Condit v. Dunne, 225 F.R.D. 100
(S.D.N.Y. 2004).
(1) This case was so well publicized that it
seemed wrong to change the names.
(2) Consider first the conflict of laws issues,
(a) Does New York or California
privacy law governs the ability of Condit to assert a privilege based
on privacy.
(b) Citing Klaxon, the
court notes that the district court in New York applies the conflict
laws of the forum state, New York, to determine the issue.
(c) The court applied a
balancing test and found that New York’s privacy law would apply
and that New York did not recognize a privilege that would protect
Condit from giving deposition testimony about matters allegedly
protected by privacy.
d. What about discovery relevance;
(1) First, Condit’s sexual
relationship with Levy:
(2) Do we understand that truth will
serve as a defense in this defamation action.
(3) If, as Dunne alleged, Condut was having a
sexual relationship with Levy, that would show the substantial truth of
what Dunne said.
(4) B alleging Dunne’s statements were
defamatory, Condit put these possible allegations in issue and cannot
now prevent Dunne from pursuing them.
e. Second, the extent of Condit’s finances:
(1) Focus on the damage claims.
(2) If Condit has substantial financial
resources, that reason alone could explain why Condit did not seek
employment following these stories.
(3) That would make the claim that the stories
caused Condit to miss out on employment unprovable.
(4) The court found that this information was
also discoverable.
8. Finally, a variation;
a.
Suppose Steffan went back into the Navy but is discharged for improper
sexual conduct;
b. Would
the information that he did not have to provide in the prior action now
be relevant? Of course;
c. Should he be required to admit it?
d. In the original case, Steffan claimed “privilege;”
e. How would that be applicable here?
(1) Presumably, engaging in homosexual
acts would somehow violate the Code of Military Conduct;
(2) At that point, Steffan would be asserting his
fifth Amendment privilege against self-incrimination;)
B. And that is the second broad category of
information which cannot be discovered is "privileged" information;
1. If you go to some set of
state statutes and look up "privilege" or "privileged information," you
may not find it;
2. "Privilege" relates
exclusively to what witnesses can say in response to questions asked
under the compulsion of a trial;
3. As such, information
about "privilege" is contained in statutes dealing with witnesses;
4. Many such statutes
indicate that a witness is not competent to testify about that
information which is privileged, unless the privilege is waived;
5. As p 414 indicate, most
privileged information is highly relevant or will lead to relevant
information;
a. Thus,
traditional discovery rules relating to relevance will not keep this
information out;
b. To
keep it out, there must be some policy reason that provides some
greater reason than the fact that it is highly relevant information;
(1) It is a societal statement that this
information exchange should be protected;
(2) Accordingly, what is "privileged" is a
substantive legal statement made by a state legislature;
(3) Among the normal possibilities;
(a) Communications between
married persons made during the marriage--designed to preserve the
sanctity of marriage;
(b) Communications between
client and attorney--and normally the attorney's response;
(c) Confidential
information secured during the physician-dentist, psychologist-patient
relationship;
(d) Confidential government
information learned in the course of working for or representing the
government;
(e) Confidential
information told to a religious person in confidential communication by
one seeking advice or counsel from that religious person;
(f) Privilege against
self-incrimination;
(4) In Missouri, testimonial privileges are
covered in R.S.Mo. §491.060;
c. Problems, p 414-415;
(a) Problem 1(a)--Albert
and Barbara involved in car accident; Albert sues Barbara
claiming Barbara intentionally drove her car into Albert; In
deposition, Barbara is asked "did you intentionally run into
Albert?" Is this relevant--of course;
(b) Problem 1(b)--is it
privileged--yes, until possibility of criminal case is over;
(c) Problem 2(b)--by
putting his psychological condition into the lawsuit--by claiming
emotional distress damages, most courts would hold that Albert had
waived any privilege he might otherwise have claimed with his own
psychotherapist;
(d) Problem 3(b)--what is
the privilege issue?
i)
Evidently, homosexual behavior was akin to a crime, for which Steffan
could have been disciplined;
ii)
Thus, this information would have been privileged, even if relevant;
d.
Let’s look at Devine Problem, p 97, Horton v. Prescott
International, Inc.
(1) Based on State ex rel Dean v. Cunningham,
182 S.W.3d 561 (Mo., En Banc, 2006).
(2) Has Margaret Horton “waived”
physician-patient privilege when she seeks damages for “emotional
distress?”
(a) Is it logical that she
“waives” privilege for all medical conditions simply
because she claims mental distress?
(b) Would it be more logical that
she waives only mental-health related issues;
(3) That, however, does not answer the privilege
question here–Why?
(a) go back to the other
interrogatory answers. Can Margaret Horton seek, at trial,
damages for medical costs?
(b) Not based on her answer
to interrogatory #1. She said that she had no such damages.
(c) In answer to
interrogatory #2, Horton indicated that she suffered “garden
variety” emotional injury. What do you think that
means?
(d) Isn’t this the
the kind of emotional injury that any person would suffer with the same
kind of injury. At that point, Horton will not have any direct
medical proof.
(e) So, based on her answers,
what kind of medical evidence do you expect Horton to offer at
trial? None or very little should be the correct answer.
(f) Now, go back to the
original question. Does she waive physician-patient
privilege? Probably. But what: her medical records are not
even Discovery relevant in this case because she is not going to
introduce any such evidence.
(g) This question is
designed to throw you a curve.
e. At
this point, I made you aware of the URL for my answers to the problems
on discovery that are contained on pp 416-427;