I think Amanda makes many good points. However, I think the reasons she states for the privilege objection being the most common objection is a little convoluted. I think the most common privilege asserted is the attorney client privilege if only strictly because the value of evidence the attorney has is very high. Essentially, the attorney has the keys to the case, and inadvertent releases of attorney communicates can have extremely damaging effects to a lawsuit. I think the medical privilege, or the confessor privilege is less because not every case will use those types of witnesses – however, nearly all cases have attorneys.
I disagree with the notion that objections are for stalling the inevitable or to hide some secret. For example, a tax return is private information that often has no relevance to the justice of a case at hand, however, if you’re trying to figure out how much you can harass an adversary, and how many lawyer hours are worthwhile in a case, a tax return might be very useful.
With regards to the first fact pattern, she doesn’t really answer the questions posed. She just answers the question about form and substance. While this part of her response is well reasoned, there is no reason for ruling in the affirmative or negative for the three or four other questions. For the second fact pattern Amanda also takes a judicious approach to the case, and would need to review the actual evidence to draw a conclusion, but in this case she gives a roadmap for the rationale of both ways. Finally, the third fact pattern is correctly concluded with an order to compel the production of the report because there does not appear a valid reason to withhold it.
Barbara also makes many good points and her analysis is largely correct. I do not really understand the connection between asserting the attorney-client privilege and the electronically stored information (ESI). I think the privileged information objection was the most commonly used prior to the advent of ESI and would continue to be the most commonly used if ESI ceased to exist. The reason for the attorney client privilege being the most common has nothing to do with electronic car passes and has more to do with the volume and value of the communications and the work products of the attorney.
Barbara answers the questions fully and in a well-structured manner. The rulings in regards to the first fact pattern are on point and well reasoned. If a deposition can be used without the person present, she spells out the ways it can be. She cites relevant statute to the questions of: using a deposition against a witness, compelling attendance of a witness, videotaping a deposition, and attorney objections during a deposition.
Similarly for the second and third fact patterns, there is a well reasoned and structured response citing appropriate statutory guidance. She correctly points out that the questions are appropriately resolved with reference to Rule 26 of the Federal Rules of Evidence. I do think that in order to draw appropriate conclusions in the second scenario that we are missing key information in the scenario. However, if given sufficient evidence the appropriate control would be the law she has cited. Finally, the third fact pattern is also appropriately resolved by Rule 26 and a motion to compel as is wisely pointed out.
