Professionalism/Ethics Series: Ethical Issues Arising While Conducting Discovery … · 2017-12-15 · Series: Ethical Issues Arising While Conducting Discovery in 42 U.S.C. 1983

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Professionalism/Ethics Series: Ethical Issues Arising While Conducting Discovery

in 42 U.S.C. 1983 Cases

Seminar Topic: This course is designed to discuss common discovery

tactics in the prosecution of section 1983 cases. In addition, we will discuss

some inventive tactics that could be employed and some new

developments in case law.

This material is intended to be a guide in general. As always, if you have

any specific question regarding the state of the law in any particular

jurisdiction, we recommend that you seek legal guidance relating to your

particular fact situation.

The course materials will provide the attendee with the knowledge and

tools necessary to identify the current legal trends with respect to these

issues. The course materials are designed to provide the attendee with

current law, impending issues and future trends that can be applied in

practical situations.

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Disclaimer: The views expressed herein are not a legal opinion. Every fact situation is different and the reader is encouraged to seek legal advice for their particular situation.

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About The Author

Kellie Walters graduated from DePaul University with a baccalaureate in Sociology in 2001. She then spent two years working as a domestic violence counselor in an emergency shelter before enrolling in John Marshall Law School beginning in January 2003. During that time she was an intern at the John Marshall Fair Housing Legal Clinic for four semesters and spent several semesters employed as a legal research assistant. In 2006, Walters graduated John Marshall and enrolled in Northwestern Lewis and Clark Law School in Portland, Oregon to receive her L.L.M. in Environmental and Natural Resources Law. During that time, she wrote her L.L.M. thesis on the oil drilling in southeast Nigeria, its effect on the Ogoni tribe and the ongoing litigation. She also taught seminars at the Portland Community College about the relationship between Environmental Law and Human Rights. Upon returning to Chicago, she worked with the Civil Rights Center litigating cases involving police misconduct until they closed their doors in 2009. Ms. Walters started a solo practice focusing on state civil litigation, bankruptcy, and transactional law.



Professionalism/Ethics Series: Ethical Issues Arising While Conducting Discovery in 42 U.S.C.

1983 Cases

I. Prior to filing a Complaint

a. Letters

i. Send litigation hold letter to client

ii. Send letter to preserve to any Defendant or third party

b. FOIA Requests

i. A way of obtaining information when you don’t have a

pending case to attach the request.

ii. Might keep you on the right side of Rule 11

c. 27(a) Depositions – Fed. R. Civ. P. 27

i. prior to filing of an action, petition the court to

perpetuate testimony from a party that will not be

available later

ii. must file a VERIFIED petition and there are extremely

stringent requirements for petition to be granted –

DON’T RELY ON THIS



II. After Filing a Complaint

a. Written Discovery

i. 26(a) Disclosures – Fed. R. Civ. P. 26

1. name, address and phone number of anyone

with information

2. documents and tangible items

3. computation of damages

4. insurance info

5. expert witnesses

6. DO NOT NEED TO DISCLOSE ANYTHING SOLELY

USED FOR IMPEACHMENT

ii. Interrogatories Fed. R. Civ. P. 33

1. May serve on any other party

2. Limited to 25 interrogatories, INCLUDING

SUBPARTS

3. Respond with answers and objections within 30

days of service

a. If not objected to in a timely fashion, it is

waived



4. Verification

a. Signature of person answering

b. Signature of attorney making objections

iii. Requests to Produce or Inspect – Fed. R. Civ. P. 34

1. May serve on any other party

2. Must

a. Give reasonable particularity of the

objects to be produced

b. Specify a reasonable time, manner and

place for inspection

c. Specify form in which electronically

stored information is to be produced

3. Respond with answers and objections within 30

days of service

4. Depending on the level of security of the place

you intend to inspect, you may require a court

order

5. Nonparties can be compelled to produce

tangible objects or provide inspections too



iv. Requests to Admit – Fed. R. Civ. P. 36

1. Any other party

a. Requesting admission of

i. Facts, application of law to fact or

opinions; and

ii. Genuineness of described

documents

2. Admit, deny or object within 30 days of service

a. If not answered, its deemed admitted

b. Objection that cannot simply state the

request contains an issue for trial

v. Written Depositions – Fed. R. Civ. P. 31

1. Normally depositions are oral, but sometimes a

written deposition is more appropriate

a. Oral deposition or written depositions?

2. Can be conducted on any party

a. Sometimes will need leave of court

3. Notice must be served on all other parties

a. Notice of completion must also be sent



4. Follow up

a. Cross examination questions must be

sent within 14 days after being served

with the notice and direct questions;

b. redirect examination questions must be


with cross-questions; and

c. recross examination questions must be


with redirect questions.

vi. Subpoenas

1. Don’t forget about subpoenas!

2. Issue subpoenas to non-parties re: relevant

Information

b. Oral Discovery

i. Oral Depositions – Fed. R. Civ. P. 30

1. Any person, including the party

a. May need leave of court in certain

circumstances



2. Can be conducted any time or place

3. Must provide reasonable written notice

a. Notice of Deposition for parties to the

case and subpoenas for non-parties

b. Time and place

c. Deponents name and address

4. Should you videotape depositions?

5. Objections

a. Must answer the questions anyway,

except

i. when information is privileged

ii. when information violates a

limitation imposed by the court

iii. when a Motion to terminate or

limit becomes necessary

ii. 30(b)(6) Depositions – Fed. R. Civ. P. 30(b)(6)

1. through subpoena

2. deposing an organization



3. deponent organization names the party that will

testify on its behalf.

4. For the purpose of getting policy information

III. Discovery Disputes

a. 37.2 (NDIL Local Rules)

i. requires a statement that

1. there was consultation between the parties and

made good faith attempts to resolve discovery

disputes

2. attempts to engage were unsuccessful

ii. with particularity

b. Motion to Compel –Fed. R. Civ. P. 37

i. Can be made against a party or non-party

ii. The court will not hear a Motion to Compel without the

37.2 correspondence

iii. Be specific about what you’re looking for in your Motion

1. Seeking disclosure or response?

a. Evasive or incomplete answers may be

treated as incomplete answers



iv. Reimbursement of expenses appropriate?

1. Expenses associated with having to file the

motion, including attorney’s fees must be

awarded in certain circumstances if the motion

is granted

v. Give the procedural history

vi. A court may not hear or grant a Motion to Compel if

discovery is already closed, so stay aware of deadlines.

IV. Other Facts

a. Motions to Extend Discovery

i. See whether you can file it as agreed

ii. Do it early, if possible.

iii. Tips

1. Procedural history

2. Reason for extension

3. How many previous extensions

a. Damn good reason if this is your 6th

extension

4. Not an attempt at delay



5. Assure the judge this will not prejudice any party

b. Protective Orders

i. Extremely common in 1983 cases.

ii. However, is it necessary?

V. Things to Consider when Drafting Discovery Requests

a. Identify evidence required for all elements of each claim,

defense, and damages (as viewed from all sides of the case)

VI. Things to Consider When Reviewing Responses to Discovery

a. Review opposing party’s disclosures and index by which

element of claim, damages, or credibility to which they pertain discovery


Documents

Professionalism/Ethics Series: Ethical Issues Arising While Conducting Discovery … · 2017-12-15 · Series: Ethical Issues Arising While Conducting Discovery in 42 U.S.C. 1983