Advanced Civil Litigation Class 8Slide 1 Discovery Devices Automatic (mandatory) disclosure Automatic (mandatory) disclosure Rule 26 requires the automatic

Advanced Civil Litigation Class 8 Slide 1

Discovery DevicesDiscovery Devices Automatic (mandatory) disclosureAutomatic (mandatory) disclosure

Rule 26 requires the automatic disclosure of a host Rule 26 requires the automatic disclosure of a host of basic information regarding the caseof basic information regarding the case

InterrogatoriesInterrogatories Questions addressed to the other partyQuestions addressed to the other party

DepositionsDepositions Interviews of any witnesses relevant to the caseInterviews of any witnesses relevant to the case

Document productionDocument production Request for information about opponent’s experts Request for information about opponent’s experts

and expert’s reportsand expert’s reports Physical and Mental ExaminationsPhysical and Mental Examinations Requests for AdmissionRequests for Admission


Purpose and Scope of DiscoveryPurpose and Scope of Discovery Discovery is designed so that both parties should be Discovery is designed so that both parties should be

able to be fully prepared for trial.able to be fully prepared for trial. Trial tactics like ambush or surprise are not supposed Trial tactics like ambush or surprise are not supposed

to existto exist Discovery can lead directly to admissible evidence or Discovery can lead directly to admissible evidence or

can yield information that leads of other admissible can yield information that leads of other admissible evidenceevidence Therefore, evidentiary defenses like hearsay are not Therefore, evidentiary defenses like hearsay are not

usually grounds to deny discovery requestsusually grounds to deny discovery requests Preservation of EvidencePreservation of Evidence

This allows each party to make sure they know what This allows each party to make sure they know what the other side has to make sure it survives to be used the other side has to make sure it survives to be used as trialas trial

You can write a “preservation letter” demanding that You can write a “preservation letter” demanding that certain evidence be preserved for inspection or trial.certain evidence be preserved for inspection or trial.


Mandatory DisclosureMandatory Disclosure This must occur after pretrial conferenceThis must occur after pretrial conference

Which happens within 3 or 4 months after the lawsuit Which happens within 3 or 4 months after the lawsuit starts under the federal systemstarts under the federal system

Rule 26 provides that the following must be turned Rule 26 provides that the following must be turned over:over: Contact info of anyone likely to have relevant infoContact info of anyone likely to have relevant info Description of documents you will use to help your caseDescription of documents you will use to help your case Computation of damagesComputation of damages Relevant insurance your client hasRelevant insurance your client has Identity of your expert witnesses and a report of what Identity of your expert witnesses and a report of what

their opinions are, what they will say at trial, etc.their opinions are, what they will say at trial, etc. Information on all people you intend to call as Information on all people you intend to call as

witnesseswitnesses All disclosures must be in writing and signed by the All disclosures must be in writing and signed by the

attorney, indicating that they are true. Inadvertent attorney, indicating that they are true. Inadvertent false disclosures must be corrected promptly.false disclosures must be corrected promptly.


What Information is Discoverable?What Information is Discoverable? Must have relevant (very broad category)Must have relevant (very broad category) Privileged information may be withheldPrivileged information may be withheld

State law determined which privileges applyState law determined which privileges apply Work product is protected. This includes:Work product is protected. This includes:

Thoughts and impressions of witnesses and evidenceThoughts and impressions of witnesses and evidence Research into the law/ case law, etc.Research into the law/ case law, etc. Opinions and legal conclusionsOpinions and legal conclusions Interviews and notes gathered in anticipation of Interviews and notes gathered in anticipation of

litigationlitigation Subject to an exception if the other party has no Subject to an exception if the other party has no

reasonable access to the same informationreasonable access to the same information Information and reports of expertsInformation and reports of experts The court has a lot of discretion in these mattersThe court has a lot of discretion in these matters


Court Involvement in DiscoveryCourt Involvement in Discovery

If there is a dispute as to whether something is If there is a dispute as to whether something is privileged, the judge decides the issueprivileged, the judge decides the issue

If part of a document is privileged, the party can If part of a document is privileged, the party can “redact” privileged information or work product “redact” privileged information or work product before turning it over.before turning it over. The other side can ask the judge to review it “in The other side can ask the judge to review it “in

camera” to determine whether the redaction is camera” to determine whether the redaction is justifiedjustified

The court can limit discovery if it’s overly The court can limit discovery if it’s overly burdensome or if there’s unreasonable delay, etc.burdensome or if there’s unreasonable delay, etc.

The parties meet with the judge to initially plan The parties meet with the judge to initially plan discovery (a “scheduling conference”)discovery (a “scheduling conference”) Thereafter, they can meet themselves; the judge will Thereafter, they can meet themselves; the judge will

only get involved if there is a disputeonly get involved if there is a dispute


Ethical Issues in the Discovery ProcessEthical Issues in the Discovery Process CompetencyCompetency

Make sure your firm is experiences in competent in the areas Make sure your firm is experiences in competent in the areas to be used, especially e-discovery, if applicableto be used, especially e-discovery, if applicable

Fairness to opposing counselFairness to opposing counsel Obstructing your opponents access to information and/or Obstructing your opponents access to information and/or

preventing them from getting information they’re entitled to preventing them from getting information they’re entitled to by trick, etc., is unethicalby trick, etc., is unethical

Communication with your own clientCommunication with your own client Make sure to keep your client informed as to the progress of Make sure to keep your client informed as to the progress of

the case and the discoverythe case and the discovery Communications with othersCommunications with others

Don’t misrepresent your interests in deadline with neutral Don’t misrepresent your interests in deadline with neutral parties and witnessesparties and witnesses

Be very careful about contacting other people represented by Be very careful about contacting other people represented by counsel, especially opposing partiescounsel, especially opposing parties

Don’t use the process to intimidate, scare or harass your Don’t use the process to intimidate, scare or harass your opponent and don’t move for sanctions unless you have a opponent and don’t move for sanctions unless you have a good faith basisgood faith basis


InterrogatoriesInterrogatories These are written questions submitted to opposing These are written questions submitted to opposing

party. They must be answered under “oath” (notarized party. They must be answered under “oath” (notarized document is good enough). Verification is also document is good enough). Verification is also required.required.

If the other party doesn’t know the answer off hand, If the other party doesn’t know the answer off hand, they have a duty to try to find out the answerthey have a duty to try to find out the answer Unlike a deposition, you can’t say “I don’t remember”Unlike a deposition, you can’t say “I don’t remember”

These can be served only on a “party” to the litigationThese can be served only on a “party” to the litigation Third party defendants, etc., are parties to the litigationThird party defendants, etc., are parties to the litigation

Every question must be answered completelyEvery question must be answered completely … … or objected to, stating the grounds of objectionor objected to, stating the grounds of objection

The answer must be returned within 30 days under the The answer must be returned within 30 days under the federal rulesfederal rules


Planning the InterrogatoriesPlanning the Interrogatories First, you need to set out for yourself the elements that must First, you need to set out for yourself the elements that must

be proven.be proven. Once you understand the elements, list all of the facts that Once you understand the elements, list all of the facts that

need to be proven to establish those elementsneed to be proven to establish those elements Then, determine which of those facts:Then, determine which of those facts:

The party might be able to establish; andThe party might be able to establish; and The party might have information that might lead to other The party might have information that might lead to other

witnesses or documents that can help prove the factswitnesses or documents that can help prove the facts Draft broad interrogatory questions to force the other party to Draft broad interrogatory questions to force the other party to

turn over whatever information the party might have; but turn over whatever information the party might have; but don’t be too broad. For example:don’t be too broad. For example: Too narrow: Is the defendant nearsighted?Too narrow: Is the defendant nearsighted? Good: Does the defendant suffer from any sight ailment Good: Does the defendant suffer from any sight ailment

that might have affected him that night? Explain which that might have affected him that night? Explain which ones.ones.

Too broad: Does the defendant suffer from any physical Too broad: Does the defendant suffer from any physical ailment that might be relevant to this case? Explain which ailment that might be relevant to this case? Explain which ones.ones.


Planning the Interrogatories – Other PointsPlanning the Interrogatories – Other Points

Review all previous documents, including the Review all previous documents, including the pleadings when planning interrogatoriespleadings when planning interrogatories

Review the goals to be accomplished with the Review the goals to be accomplished with the questionsquestions

Consult “canned” interrogatories in your firm’s filesConsult “canned” interrogatories in your firm’s files Organize your goals by topic. Try to organize your Organize your goals by topic. Try to organize your

interrogatories by topic, which is easier answerinterrogatories by topic, which is easier answer This is not the time to annoy your opponent. It’s not This is not the time to annoy your opponent. It’s not

easy to get an opponent sanctioned for failure to answer easy to get an opponent sanctioned for failure to answer an interrogatory. You’re better off trying to get the truth.an interrogatory. You’re better off trying to get the truth.

Use interrogatories to determine what information can Use interrogatories to determine what information can be sought electronically; e.g.,be sought electronically; e.g., ““Do you have a copies of this document on your Do you have a copies of this document on your

network?”network?” Don’t be too specific with your questions (you can grill Don’t be too specific with your questions (you can grill

an opponent in a deposition, if you need to)an opponent in a deposition, if you need to)


Drafting the Interrogatory 1Drafting the Interrogatory 1 The caption should be the same case caption as on The caption should be the same case caption as on

the pleadingsthe pleadings An introductory paragraph (almost always can be An introductory paragraph (almost always can be

from a template) should tell the defendant what the from a template) should tell the defendant what the document is and direct an answer within the document is and direct an answer within the appropriate time..,appropriate time..,

You can (not completely necessary, but usually You can (not completely necessary, but usually done), put in a whole series of definitions and done), put in a whole series of definitions and guidelines to the interrogatories.guidelines to the interrogatories. Again, you should review these to determine relevant Again, you should review these to determine relevant

to the case, but these are usually “canned.”to the case, but these are usually “canned.” The first substantive part of the interrogatory should The first substantive part of the interrogatory should

deal with personal information or corporate deal with personal information or corporate information.information.


Drafting the Interrogatory 2Drafting the Interrogatory 2 Next, build on and ask about all points in pleadings or Next, build on and ask about all points in pleadings or

previous discovery statements that you are unclear previous discovery statements that you are unclear about or need more information about.about or need more information about. This is especially true if an allegation is denied; you can This is especially true if an allegation is denied; you can

pin down the denial; ask why and what aspect is denied, pin down the denial; ask why and what aspect is denied, etc.etc.

Ask about important policies of the defendant or Ask about important policies of the defendant or plaintiff and the kinds of procedures the other party has plaintiff and the kinds of procedures the other party has in place regarding the actions that gave rise to the suitin place regarding the actions that gave rise to the suit

You can ask about legal conclusions and opinions as You can ask about legal conclusions and opinions as wellwell This could be a good way to get a peek at your This could be a good way to get a peek at your

opponent’s defense or theory of the caseopponent’s defense or theory of the case Ask about what relevant information is stored and Ask about what relevant information is stored and

where where


Drafting TechniquesDrafting Techniques Make sure the question has a chance of leading to Make sure the question has a chance of leading to

admissible evidenceadmissible evidence Keep it as simple and concise as possible; also don’t Keep it as simple and concise as possible; also don’t

ask an inordinate number of questionsask an inordinate number of questions Number the questions and don’t start over just Number the questions and don’t start over just

because you’re starting a new sectionbecause you’re starting a new section Be careful with your verbs and tenses to cover all of Be careful with your verbs and tenses to cover all of

your bases:your bases: Not good: “Do you have document X?”Not good: “Do you have document X?” Good: “Do or did you ever have document X? If not, do Good: “Do or did you ever have document X? If not, do

you know of anyone who has or ever had such access?”you know of anyone who has or ever had such access?” Phrase questions to determine whether the other Phrase questions to determine whether the other

party has first hand knowledge or second hand party has first hand knowledge or second hand knowledgeknowledge

Add words like “explain how” to yes or no questionsAdd words like “explain how” to yes or no questions


Answering InterrogatoriesAnswering Interrogatories Make sure you’re on target to meet the deadlineMake sure you’re on target to meet the deadline

If you need more time to gather information, etc., ask If you need more time to gather information, etc., ask your opponent for it. You’ll usually get it. Review all your opponent for it. You’ll usually get it. Review all questions for possible objections!questions for possible objections!

If you run out of time, submit what you have and note that If you run out of time, submit what you have and note that more will come later- as long as it’s in good faith, you more will come later- as long as it’s in good faith, you should be okayshould be okay

Does the question ask for privileged material?Does the question ask for privileged material? Does it ask for work product?Does it ask for work product? Is it irrelevant? Too vague or ambiguous?Is it irrelevant? Too vague or ambiguous? Too broad? Too burdensome?Too broad? Too burdensome?

Answer accurately and ethically. If the questions require Answer accurately and ethically. If the questions require gathering evidence, take the time to do so.gathering evidence, take the time to do so.

You can answer questions in the light most favorable to You can answer questions in the light most favorable to your side, as long as it is accurateyour side, as long as it is accurate

Update or correct previously submitted answers when Update or correct previously submitted answers when necessarynecessary

Documents

Advanced Civil Litigation Class 8Slide 1 Discovery Devices Automatic (mandatory) disclosure Automatic (mandatory) disclosure Rule 26 requires the automatic