Discovery Devices

1. Discovery Devices • Automatic (mandatory) disclosure • Rule 26 requires the automatic disclosure of a host of basic information regarding the case • Interrogatories • Questions addressed to the other party • Depositions • Interviews of any witnesses relevant to the case • Document production • Request for information about opponent’s experts and expert’s reports • Physical and Mental Examinations • Requests for Admission Advanced Civil Litigation Class 8

2. Purpose and Scope of Discovery • Discovery is designed so that both parties should be able to be fully prepared for trial. • Trial tactics like ambush or surprise are not supposed to exist • Discovery can lead directly to admissible evidence or can yield information that leads of other admissible evidence • Therefore, evidentiary defenses like hearsay are not usually grounds to deny discovery requests • Preservation of Evidence • This allows each party to make sure they know what the other side has to make sure it survives to be used as trial • You can write a “preservation letter” demanding that certain evidence be preserved for inspection or trial. Advanced Civil Litigation Class 8

3. Mandatory Disclosure • This must occur after pretrial conference • Which happens within 3 or 4 months after the lawsuit starts under the federal system • Rule 26 provides that the following must be turned over: • Contact info of anyone likely to have relevant info • Description of documents you will use to help your case • Computation of damages • Relevant insurance your client has • Identity of your expert witnesses and a report of what their opinions are, what they will say at trial, etc. • Information on all people you intend to call as witnesses • All disclosures must be in writing and signed by the attorney, indicating that they are true. Inadvertent false disclosures must be corrected promptly. Advanced Civil Litigation Class 8

4. What Information is Discoverable? • Must have relevant (very broad category) • Privileged information may be withheld • State law determined which privileges apply • Work product is protected. This includes: • Thoughts and impressions of witnesses and evidence • Research into the law/ case law, etc. • Opinions and legal conclusions • Interviews and notes gathered in anticipation of litigation • Subject to an exception if the other party has no reasonable access to the same information • Information and reports of experts • The court has a lot of discretion in these matters Advanced Civil Litigation Class 8

5. Court Involvement in Discovery • If there is a dispute as to whether something is privileged, the judge decides the issue • If part of a document is privileged, the party can “redact” privileged information or work product before turning it over. • The other side can ask the judge to review it “in camera” to determine whether the redaction is justified • The court can limit discovery if it’s overly burdensome or if there’s unreasonable delay, etc. • The parties meet with the judge to initially plan discovery (a “scheduling conference”) • Thereafter, they can meet themselves; the judge will only get involved if there is a dispute Advanced Civil Litigation Class 8

6. Ethical Issues in the Discovery Process • Competency • Make sure your firm is experiences in competent in the areas to be used, especially e-discovery, if applicable • Fairness to opposing counsel • Obstructing your opponents access to information and/or preventing them from getting information they’re entitled to by trick, etc., is unethical • Communication with your own client • Make sure to keep your client informed as to the progress of the case and the discovery • Communications with others • Don’t misrepresent your interests in deadline with neutral parties and witnesses • Be very careful about contacting other people represented by counsel, especially opposing parties • Don’t use the process to intimidate, scare or harass your opponent and don’t move for sanctions unless you have a good faith basis Advanced Civil Litigation Class 8

7. Interrogatories • These are written questions submitted to opposing party. They must be answered under “oath” (notarized document is good enough). Verification is also required. • If the other party doesn’t know the answer off hand, they have a duty to try to find out the answer • Unlike a deposition, you can’t say “I don’t remember” • These can be served only on a “party” to the litigation • Third party defendants, etc., are parties to the litigation • Every question must be answered completely • … or objected to, stating the grounds of objection • The answer must be returned within 30 days under the federal rules Advanced Civil Litigation Class 8

8. Planning the Interrogatories • First, you need to set out for yourself the elements that must be proven. • Once you understand the elements, list all of the facts that need to be proven to establish those elements • Then, determine which of those facts: • The party might be able to establish; and • The party might have information that might lead to other witnesses or documents that can help prove the facts • Draft broad interrogatory questions to force the other party to turn over whatever information the party might have; but don’t be too broad. For example: • Too narrow: Is the defendant nearsighted? • Good: Does the defendant suffer from any sight ailment that might have affected him that night? Explain which ones. • Too broad: Does the defendant suffer from any physical ailment that might be relevant to this case? Explain which ones. Advanced Civil Litigation Class 8

9. Planning the Interrogatories – Other Points • Review all previous documents, including the pleadings when planning interrogatories • Review the goals to be accomplished with the questions • Consult “canned” interrogatories in your firm’s files • Organize your goals by topic. Try to organize your interrogatories by topic, which is easier answer • This is not the time to annoy your opponent. It’s not easy to get an opponent sanctioned for failure to answer an interrogatory. You’re better off trying to get the truth. • Use interrogatories to determine what information can be sought electronically; e.g., • “Do you have a copies of this document on your network?” • Don’t be too specific with your questions (you can grill an opponent in a deposition, if you need to) Advanced Civil Litigation Class 8

10. Drafting the Interrogatory 1 • The caption should be the same case caption as on the pleadings • An introductory paragraph (almost always can be from a template) should tell the defendant what the document is and direct an answer within the appropriate time.., • You can (not completely necessary, but usually done), put in a whole series of definitions and guidelines to the interrogatories. • Again, you should review these to determine relevant to the case, but these are usually “canned.” • The first substantive part of the interrogatory should deal with personal information or corporate information. Advanced Civil Litigation Class 8

11. Drafting the Interrogatory 2 • Next, build on and ask about all points in pleadings or previous discovery statements that you are unclear about or need more information about. • This is especially true if an allegation is denied; you can pin down the denial; ask why and what aspect is denied, etc. • Ask about important policies of the defendant or plaintiff and the kinds of procedures the other party has in place regarding the actions that gave rise to the suit • You can ask about legal conclusions and opinions as well • This could be a good way to get a peek at your opponent’s defense or theory of the case • Ask about what relevant information is stored and where Advanced Civil Litigation Class 8

12. Drafting Techniques • Make sure the question has a chance of leading to admissible evidence • Keep it as simple and concise as possible; also don’t ask an inordinate number of questions • Number the questions and don’t start over just because you’re starting a new section • Be careful with your verbs and tenses to cover all of your bases: • Not good: “Do you have document X?” • Good: “Do or did you ever have document X? If not, do you know of anyone who has or ever had such access?” • Phrase questions to determine whether the other party has first hand knowledge or second hand knowledge • Add words like “explain how” to yes or no questions Advanced Civil Litigation Class 8

13. Answering Interrogatories • Make sure you’re on target to meet the deadline • If you need more time to gather information, etc., ask your opponent for it. You’ll usually get it. Review all questions for possible objections! • 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 should be okay • Does the question ask for privileged material? • Does it ask for work product? • Is it irrelevant? Too vague or ambiguous? • Too broad? Too burdensome? • Answer accurately and ethically. If the questions require gathering evidence, take the time to do so. • You can answer questions in the light most favorable to your side, as long as it is accurate • Update or correct previously submitted answers when necessary Advanced Civil Litigation Class 8