Part I: The Discovery Phase: What is it & What do you do? Part II: “Meet & Confer” & Motion to Compel Heidi M. Yoshioka ‘89 Lewis Brisbois Bisgaard Smith Reagan E. Boyce ’06 Brutzkus Gubner LLP Mitch Federer ‘09 Kinetic Content

THE DISCOVERY PHASE: What is it, What do you do & Forms of Written Discovery e Mitch Federer ’09 Kinetic Content

Purposes of Discovery Determine what evidence the other side has and prepare to counter it Determine the value of the case Determine the potential risk of an adverse judgment to the client for determination of whether to pursue settlement or proceed with trial Lock in evidence to prevent surprise at trial Use as the basis for a dispositive motion (MSJ)

Timing of Discovery Early Find out the basis of the claim Educate the client as to strengths/weaknesses of case Late Clean up issues prior to trial Damages

Common Forms of Discovery Depositions Evaluate the witness Lock in their story Written Interrogatories Responses are filtered through the attorney Requests for Production or Inspection Valuable tool to obtain documentary evidence

Common Forms of Discovery d. Requests for Admission Admissions are rare, but can be significant e. Request for IME [independent medical exam] Personal Injury claims f. Subpoena Duces Tucem Third party document requests

How do you draft Discovery? a) Templates from Associates b) Discovery / Civil Procedure Treatises c) Research the elements of the stated claims: Look at Pleadings, Jury Instructions, Treatises

How do you draft Discovery? Identify the goal of the discovery Evidence that proves/disproves an element of a cause of action Identify witnesses Identify key documents Establish amount of damages at issue Impeachment of a party/witness  

How do you draft Discovery? 2. What information do you want to know? Name of a witness Location of a document Fact that proves/disproves a cause of action Cost of treatment, repair cost to property, amount of loss wages Lock a party or witness into a statement that can impeach them at trial  

How do you draft Discovery? 3. Why do you want to know it? Depose further witnesses Obtain documents Build your case/defense Analyze potential judgment for settlement/trial evaluation Prepare for cross examination

How do you draft Discovery? 4. What are you going to do with the response? Determine further discovery needed Identify potential witnesses/evidence Prepare for settlement discussions Report status of case to client Prepare for trial

Form Interrogatories Form interrogatories are questions that can be used in civil discovery to find out information about other parties, including information about a party’s name, information about their case, and certain contentions. They are a preprinted questions and cover the issues commonly encountered in the kind of lawsuit at hand.

In Class Assignment: Drafting Form Interrogatories

Special Interrogatories Special interrogatories are questions written by the parties. Writing customized questions allows the parties to obtain the specific information needed in their case. Each question should be written to establish a point the party needs to prove their case or to obtain information needed to disprove the other party’s case

7 Rules for Drafting Special Interrogatories Don’t include unapproved prefaces or instructions Use tailored definitions Watch the number and format of interrogatories Don’t use subparts Ask one question only per interrogatory Each interrogatory must be full and complete Don’t combine interrogatories with requests for admissions. https://blog.ceb.com/2013/10/02/7-rules-for-drafting-interrogatories/

7 Rules for Drafting Special Interrogatories Don’t include unapproved prefaces or instructions To ensure that the limitation on the number of interrogatories isn’t circumvented by a lengthy preface or instructions that might amount to prohibited subparts, each interrogatory must be full and complete.

7 Rules for Drafting Special Interrogatories 2. Use tailored definitions You can use definitions in a set of interrogatories, capitalizing defined words whenever they reappear in the interrogatories. Definitions can help you avoid repetition, but make sure to tailor them to the particular action; it’s important to avoid confusion caused by terms not used in or applicable to the interrogatories propounded.

7 Rules for Drafting Special Interrogatories 3. Watch the number and format of interrogatories Number each set of interrogatories consecutively. The identity of the propounding party, the set number, and the identity of the responding party must appear in the first paragraph immediately below the title of the case. Each interrogatory must be separately set out and identified by number or letter.

7 Rules for Drafting Special Interrogatories 4. Don’t use subparts Subparts are prohibited in specially prepared interrogatories. The responding party should object to any specially prepared interrogatory containing subparts.

7 Rules for Drafting Special Interrogatories 5. Ask one question only per interrogatory Interrogatories that are compound, conjunctive or disjunctive are prohibited. An interrogatory can’t be phrased to seem to ask only one question while actually requiring a response to multiple questions.

7 Rules for Drafting Special Interrogatories 6. Each interrogatory must be full and complete Interrogatories must be “self-contained” meaning that each interrogatory must be “full and complete in and of itself.” An interrogatory that requires the responding party to refer to other documents to understand the question violates this rule.

7 Rules for Drafting Special Interrogatories 7. Don’t combine interrogatories with requests for admissions Interrogatories can’t be combined in a single document with requests for admission.

Objections to Discovery? Evidence Code Rules of Civil Procedure Format Number of questions Court Rules Privileges, Trade Secrets, Proprietary Information Limited Disclosure Protective Orders

In Class Assignment: Drafting Special Interrogatories

Request For Admissions Request for admissions [RFA] is a discovery device that allows one party to request that another party admit or deny the truth of a statement under oath.

Request For Admissions RFA may be used to: Establish the truth of specified facts Admit a legal conclusion Determine a party’s opinion relating to a fact Settle a matter in controversy Admit the genuineness of documents

Request For Admissions Example: “Admit that the Defendant____________.”

In Class Assignment: Drafting RFA

Request For Production of Documents Request for production of documents is a request by one party in a lawsuit onto the other party in a lawsuit to provide any documents that it has that pertain to the subject matter.

Request For Production of Documents The responding party is required to furnish copies of any documents that are responsive to the request, except for those that are legally privileged. The responding party also can submit a response to the propounding party explaining why the documents cannot be produced.

In Class Assignment: Drafting Request for Production of Documents

Discovery Disputes Meet and Confer Requirement Motion to Compel Appointment of Referee

Break

Lewis Brisbois Bisgaard Smith Meet & Confer Heidi M. Yoshioka ‘89 Lewis Brisbois Bisgaard Smith

MEET AND CONFER REQUIREMENTS GOOD FAITH ATTEMPT TO RESOLVE THE ISSUES

CALIFORNIA STATUTE California Code of Civil Procedure Section 2016.040 “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  

LASC – PI COURTS (Departments 91, 92, 93, 97, 98) 6th Amended General Order PI Courts Central District Discovery Motions 11. The purpose of an Informal Discovery Conference ("IDC") is to assist the parties to resolve and/or narrow the scope of discovery disputes.

IDC & DISCOVERY MOTIONS . . . Lead trial counsel on each side, or another attorney with full authority to make binding agreements, must attend in person. The PI judges have found that, in nearly every case, the parties amicably resolve disputes with the assistance of the Court.

IDC & Discovery Motions . . . 12. Parties must participate in an IDC before a Motion to Compel Further Responses to Discovery will be heard, unless, the moving party submits evidence, by way of declaration that the opposing party has failed or refused to participate in an IDC.

IDC & Discovery Motions . . . Scheduling or participating in an IDC does not extend any deadlines imposed by the Code of Civil Procedure for noticing and filing discovery motions. Ideally, the parties should participate in an IDC before a motion is filed because the IDC may avoid the necessity of a motion or reduce its scope.

IDC & DISCOVERY MOTIONS . . . Because of that possibility, attorneys are encouraged to stipulate to extend the 45 day deadline for filing a Motion to Compel further discovery responses in order to allow time to participate in an IDC. If parties do not stipulate to extend the deadlines, the moving party may file the motion to avoid it being deemed untimely.

IDC & DISCOVERY MOTIONS . . . However, the IDC must take place before the motion is heard so it is suggested that the moving party reserve a date for the motion hearing that is at least 60 days after the date when the IDC reservation is made.

IDC & DISCOVERY MOTIONS . . . Motion to Compel Further Discovery Responses are heard at 10:00 a.m. If the IDC is not productive, the moving party may advance the hearing on a Motion to Compel Further Discovery Responses on any available hearing date that complies with the notice requirements of the Code of Civil Procedure.

IDC & DISCOVERY MOTIONS . . . 13. Parties are directed to reserve IDC dates in the PI Courts using CRS available online a www.lacourt.org (link on homepage). Parties are to meet and confer regarding the available dates in CRS prior to accessing the system.

After reserving the IDC date, the reservation requestor must file in the appropriate department and serve an Informal Discovery Conference Form for Personal Injury Courts, from LACIV 239 (revised 12/14 or later), at least 15 court days prior to the conference and attach the CRS reservation receipt as the last page. The opposing party may file and serve a responsive IDC Form, briefly setting forth that party‘s response, at least 10 court days prior to the IDC.

FEDERAL STATUTE Federal Rules of Civil Procedure 37(a)(1) On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.  

CONSIDERATIONS Why is the inadequate discovery response needed? Is it really important to your strategy to obtain the information/document prior to taking a deposition? Can I obtain the information through a deposition? Keep in mind that a judge does not want to hear petty squabbles between counsel

Considerations . . . Professional courtesy is important at all times, but especially when writing a “meet and confer” letter because that letter will be an exhibit to your Motion and the judge will read that letter.

Motion to Compel Reagan E. Boyce ’06 Brutzkus Gubner LLP

Your “Meet and Confer” Failed to Resolve Issues…. Now What?

Motion to Compel Move to Compel Sanctions Timing Required Documents Deadlines Other Considerations

Step 1: Which Discovery Requests should be included in the Motion? For each response that fails to provide the information you wanted --- Ask . . . Can I get this information from some other source? *third party document subpoena *party or non-party deposition *some other source, independent investigation

Step 1: Which Discovery Requests should be included in the Motion? if the opposing party is the best or only source, then you may want to move to compel for the meet and confer stage, you may be overly inclusive in asking for supplemental responses and/or documents, but actual scope for the motion may be smaller

Step 2: What Relief are you going to Seek? Supplemental response without objections Documents Access to inspect site Compel party appearance at deposition Compel attendance at the IME

STEP 3: Preparing the Motion Notice of Motion date, time and place of hearing what relief are you seeking what is the motion based upon, what documents/evidence legal basis for the relief sought if monetary sanctions are being sought as well as further responses

Motion itself One or two sentences asking the court for specific relief Often times combined into the Notice or as the 1st paragraph of the P&A’s

Memorandum of Points and Authorities Introduction of the facts relevant to the discovery Lay out the relief you are seeking Set forth legal authority for the Court to grant relief requested, including further responses, production of documents, sanctions, appearance of party, access other site, etc.

• Explain why the Court should exercise its authority to grant the relief sought • Set forth efforts to resolve by meet and confer process, let the court know if partly successful or not, and what remains for the court to address • Conclusion – renew your request for relief, be specific.

Supporting Declaration Discovery was served, attach exhibit of what you served Responses received or no responses served at all, attach exhibit of what responses you received Set forth your meet and confer efforts, and for personal injury cases, include details as to whether you attended an informal discovery conference, again attach exhibits from meet and confer process

Separate Statement of Discovery (if no responses received --you don’t need to do this) Goal of the Separate Statement: provide the court with a document which contains all the information the court needs to rule on each discovery request for which you are seeking further responses or documents, or other relief

Set forth each discovery request individually Set forth the response under each request Factual argument why the requested information should be produced Legal argument why the requested information should be produced

Schedule Your Hearing – 16 court days plus 5 calendar days out from service date Must go through the Court Reservation System for personal injury and for some other departments: Check online to see if your judge is using the CRS system yet.

Must put Reservation ID# on each caption page Must include copy of payment receipt with Moving papers in order to file Verify the hearing date you want is available on your judge’s calendar

Each judge using the CRS system will post instructions for: how and when motions may be heard, days, times, limit on number of motions per calendar, what motions may be heard when, what to do if you need to continue a hearing date, proof of service requirements, if you want a court reporter what procedure to use, etc.

You Filed Your Motion. . . What’s the Next step?

• Opposition papers will be due 9 court days before the hearing date you schedule • Reply papers will be due 5 court days before the hearing date you schedule • Hearing on the Motion – Making your court appearance will be covered in Week 5 • Check for tentative ruling – some judges post the day before

Sample Motion to Compel

Sample Separate Statement

Take-Home Assignment Draft Motion to Compel [details to be discussed in class] Due Monday, October 10th [midnight] Email to - GAP@swlaw.edu Will be reviewed by Professors and returned to you in class on Tuesday, October 25th

Week 7 – Tuesday, October 25th Mock Court Appearance Week 7 – Tuesday, October 25th Advocates?