Professional Responsibility and Discovery

John Leubsdorf
Rutgers University, Newark

 

  1. Discovery Disputes and Theories of the Adversary System

    1. Discovery: Exception to the Adversary System or Its Core

    2. Adversary Behavior and Correct Results

    3. Adversary Behavior and Protection of Rights

    4. Adversary Behavior as Unavoidable

      

  2. Professional Rules and Discovery: the Bagel and the Hole

    1. Discouraging Alternatives to Formal Discovery

      1. The No-Contact Rule and Employees of Parties: Model Rules 4.2, 4.3 and 3.4(f)

      2. Lawyer-Client Confidentiality: Model Rules 1.6, 3.7

      3. Inadvertent Disclosure: Model Rule 4.4(b)

    2. The Misleading Appearance of Professional Regulation

      1. Document Destruction: Model Rule 3.4 (a, b)

      2. Frivolous Requests and Objections: Model Rules 3.1, 3.4(d)

      3. Delay and Harassment: Model Rules 3.2, 4.4(a)

      4. Dishonesty: Model Rules 3.3, 3.4(b), 4.1

      

  3. Procedural or Professional Controls?

    1. Advantages of Control through the Procedural System

    2. Limits of Procedural Controls