Discovery Devices. Rule 26 requires the automatic disclosure of a host of basic information regarding the case

(1)

Discovery Devices

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n Automatic (mandatory) disclosure Automatic (mandatory) disclosure n

n Rule 26 requires the automatic disclosure of a host of Rule 26 requires the automatic disclosure of a host of

basic information regarding the case basic information regarding the case n n Interrogatories Interrogatories n n Questions addressed to the other party Questions addressed to the other party n n Depositions Depositions n n Interviews of any witnesses relevant to the case Interviews of any witnesses relevant to the case n n Document production Document production n

n Request for information about opponentRequest for information about opponent ’’ s experts and s experts and expert

expert’’ s reports s reports

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n Physical and Mental Examinations Physical and Mental Examinations

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(2)

Purpose and Scope of Discovery

n n Discovery is designed so that both parties should be able Discovery is designed so that both parties should be able to be fully prepared for trial. to be fully prepared for trial. n

n Trial tactics like ambush or surprise are not supposed to Trial tactics like ambush or surprise are not supposed to

exist exist n n Discovery can lead directly to admissible evidence or can Discovery can lead directly to admissible evidence or can yield information that leads of other admissible evidence yield information that leads of other admissible evidence n

n Therefore, evidentiary defenses like hearsay are not Therefore, evidentiary defenses like hearsay are not

usually grounds to deny discovery requests usually grounds to deny discovery requests

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n Preservation of Evidence Preservation of Evidence n

n This allows each party to make sure they know what the This allows each party to make sure they know what the

other side has to make sure it survives to be used as trial other side has to make sure it survives to be used as trial

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n You can write a You can write a “preservation letter “ preservation letter” ” demanding that demanding that

(3)

Mandatory Disclosure

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n This must occur after pretrial conference This must occur after pretrial conference n

n Which happens within 3 or 4 months after the lawsuit Which happens within 3 or 4 months after the lawsuit

starts under the federal system starts under the federal system n n Rule 26 provides that the following must be turned over: Rule 26 provides that the following must be turned over: n n Contact info of anyone likely to have relevant info Contact info of anyone likely to have relevant info n n Description of documents you will use to help your case Description of documents you will use to help your case n n Computation of damages Computation of damages n n Relevant insurance your client has Relevant insurance your client has n

n 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.

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n Information on all people you intend to call as witnesses Information on all people you intend to call as witnesses

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n 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 false attorney, indicating that they are true. Inadvertent false

(4)

(5)

Court Involvement in Discovery

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n 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 issue

privileged, the judge decides the issue

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n If part of a document is privileged, the party can If part of a document is privileged, the party can “

“redactredact ” ” privileged information or work product before privileged information or work product before turning it over.

turning it over. n

n The other side can ask the judge to review it The other side can ask the judge to review it ““ in camera” in camera ”

to determine whether the redaction is justified to determine whether the redaction is justified

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n The court can limit discovery if itThe court can limit discovery if it ’’ s overly burdensome or s overly burdensome or if there

if there’’ s unreasonable delay, etc. s unreasonable delay, etc.

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n The parties meet with the judge to initially plan The parties meet with the judge to initially plan discovery (a

discovery (a ““ scheduling conferencescheduling conference ”” ) ) n

n Thereafter, they can meet themselves; the judge will only Thereafter, they can meet themselves; the judge will only

(6)

Ethical Issues in the Discovery Process

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n Competency Competency n

n Make sure your firm is experiences in competent in the areas to Make sure your firm is experiences in competent in the areas to be be used, especially e

used, especially e discovery, if applicable discovery, if applicable

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n Fairness to opposing counsel Fairness to opposing counsel n

n Obstructing your opponents access to information and/or preventing Obstructing your opponents access to information and/or preventi ng them from getting information they

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

unethical

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n Communication with your own client Communication with your own client n

n Make sure to keep your client informed as to the progress of the Make sure to keep your client informed as to the progress of the case case and the discovery

and the discovery

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n Communications with others Communications with others n

n Don’ Don ’t misrepresent your interests in deadline with neutral parties a t misrepresent your interests in deadline with neutral parties and nd witnesses

witnesses n

n Be very careful about contacting other people represented by counsel, Be very careful about contacting other people represented by cou nsel, especially opposing parties

especially opposing parties

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n Don’ Don ’t use the process to intimidate, scare or harass your opponent t use the process to intimidate, scare or harass your opponent

and don

(7)

Interrogatories

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n These are written questions submitted to opposing These are written questions submitted to opposing party. They must be answered under

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

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n If the other party doesnIf the other party doesn ’’ t know the answer off hand, t know the answer off hand, they have a duty to try to find out the answer

they have a duty to try to find out the answer n

n Unlike a deposition, you can’Unlike a deposition, you can ’t say t say “ “I don’I don ’t remember t remember” ”

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(8)

Planning the Interrogatories

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n First, you need to set out for yourself the elements that must be First, you need to set out for yourself the elements that must b e

proven. proven.

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n Once you understand the elements, list all of the facts that neeOnce you understand the elements, list all of the facts that nee d to d to

be proven to establish those elements be proven to establish those elements n n Then, determine which of those facts: Then, determine which of those facts: n n The party might be able to establish; and The party might be able to establish; and n

n 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 facts witnesses or documents that can help prove the facts

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n Draft broad interrogatory questions to force the other party to Draft broad interrogatory questions to force the other party to turn turn

over whatever information the party might have; but don

over whatever information the party might have; but don’ ’t be too t be too broad. For example:

broad. For example:

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n Too narrow: Is the defendant nearsighted? Too narrow: Is the defendant nearsighted?

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n Good: Does the defendant suffer from any sight ailment that Good: Does the defendant suffer from any sight ailment that

(9)

Planning the Interrogatories

Planning the Interrogatories –

– Other Points

Other Points

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

when planning interrogatories

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n Review the goals to be accomplished with the questions Review the goals to be accomplished with the questions

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n Consult Consult ““ cannedcanned ” ” interrogatories in your firminterrogatories in your firm ’’ s files s files

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n Organize your goals by topic. Try to organize your Organize your goals by topic. Try to organize your interrogatories by topic, which is easier answer

interrogatories by topic, which is easier answer n

n This is not the time to annoy your opponent. It’This is not the time to annoy your opponent. It ’s not easy s not easy

to get an opponent sanctioned for failure to answer an to get an opponent sanctioned for failure to answer an interrogatory. You

interrogatory. You’’re better off trying to get the truth. re better off trying to get the truth.

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n Use interrogatories to determine what information can Use interrogatories to determine what information can be sought electronically; e.g.,

be sought electronically; e.g., n

n “Do you have a copies of this document on your network? “ Do you have a copies of this document on your network?” ”

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n DonDon ’’ t be too specific with your questions (you can grill t be too specific with your questions (you can grill an opponent in a deposition, if you need to)

(10)

Drafting the Interrogatory 1

n n The caption should be the same case caption as on the The caption should be the same case caption as on the pleadings pleadings n n An introductory paragraph (almost always can be from a An introductory paragraph (almost always can be from a template) should tell the defendant what the document template) should tell the defendant what the document

is and direct an answer within the appropriate time.., is and direct an answer within the appropriate time..,

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n You can (not completely necessary, but usually done), You can (not completely necessary, but usually done), put in a whole series of definitions and guidelines to the put in a whole series of definitions and guidelines to the

interrogatories. interrogatories.

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n Again, you should review these to determine relevant to Again, you should review these to determine relevant to

the case, but these are usually

the case, but these are usually “ “canned. canned.” ”

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(11)

Drafting the Interrogatory 2

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n 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.

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n This is especially true if an allegation is denied; you can This is especially true if an allegation is denied; you can

(12)

Drafting Techniques

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n Make sure the question has a chance of leading to Make sure the question has a chance of leading to admissible evidence

admissible evidence

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n Keep it as simple and concise as possible; also donKeep it as simple and concise as possible; also don ’’ t ask t ask an inordinate number of questions

an inordinate number of questions

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n Number the questions and donNumber the questions and don ’’ t start over just because t start over just because you

you’’ re starting a new section re starting a new section

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n 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: n

n Not good: “ Not good: “Do you have document X? Do you have document X?” ”

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n Good: Good: “Do or did you ever have document X? If not, do “ 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?” ”

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n Phrase questions to determine whether the other party Phrase questions to determine whether the other party has first hand knowledge or second hand knowledge

has first hand knowledge or second hand knowledge

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(13)

Answering Interrogatories

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n Make sure you’ Make sure you ’re on target to meet the deadline re on target to meet the deadline

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n If you need more time to gather information, etc., ask your If you need more time to gather information, etc., ask your

opponent for it. You

opponent for it. You’ ’ll usually get it. Review all questions for ll usually get it. Review all questions for possible objections!

possible objections!

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n If you run out of time, submit what you have and note that more If you run out of time, submit what you have and note that more will come later

will come later as long as it’ as long as it ’s in good faith, you should be okay s in good faith, you should be okay

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

n Answer accurately and ethically. If the questions require gatherAnswer accurately and ethically. If the questions require gather ing ing

evidence, take the time to do so. evidence, take the time to do so.

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n You can answer questions in the light most favorable to your side, You can answer questions in the light most favorable to your sid e,

as long as it is accurate as long as it is accurate

n