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Electronic Discovery and Content Management Discussions and Issues

6 Degrees of Discoverability

6Discovery

Six Degrees of Discoverability

Degree

 

Type of Evidence

 

Generic Description

 

Chances for Discovery

 

Standard

 

1*

Real Evidence & Defined Items of Documentary Evidence

The “raw” or “operative” facts, including the actual physical parts or components of the incident, accident or controversy; the so-called “res gestae elements.”

Count on it!

Near absolute- Absent some privilege

Information is discoverable immediately

2*

 

Witnesses [Both Lay and Expert] Who May Testify

Information on all witnesses who may testify at trial, lay and Expert. Expert witnesses are required to provide extensive information about themselves and their opinions.

Witnesses are discoverable. It’s only a matter of “when” not “if.”

Information must be disclosed by pre-trial conference.

3*

Ordinary Work Product

Investigative reports; witness statements; information and data generated in anticipation of litigation.

Chances are more likely than most people would anticipate

Info NOT discoverable absent: [i] Substantial Need + [ii] Undue Hardship

4*

 

Advisory Assistance

Information developed or acquired by experts, assistants or attorneys (who will not testify), in anticipation of litigation; demonstrative evidence that won’t be used at trial.

Unlikely

Info NOT discoverable absent Exceptional circumstances

5*

 

Opinion Work Product

Personal notes, research, opinions, theories, strategic memos and attorney advice.

Unlikely absent crime-fraud exception

Info NOT discoverable absent Extraordinary circumstances

6

 

Unwritten Work Product

Information contained in the memory of an attorney.

Highly Unlikely

Info NOT discoverable

*Within Degrees 1 through 5 fall a host of privileges with varying degrees of strength

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