Class III Objectives Subject Matter: Review of Prior Assignment Disclosure Discovery By the end of this class you will be able to: Describe how discovery fits into the overall litigation process. Appreciate the pros, cons, risks and advantages associated with the various types of discovery. Formulate a discovery strategy. Prepare Document Requests, Special Interrogatories and Requests for Admission.

Review of Prior Assignment Discussion Volunteers for two complaints and associated answers to discuss Complaints: Strategy behind allegations and causes of action Other ideas for causes of action? Strategy behind drafting? Other ideas? What was the process like? Questions? Answers Strategy for answer, affirmative defenses

Disclosure What is disclosure? The mandatory exchange of certain information prior to commencement of discovery Check the applicable rules! Note especially that there are differences between state and federal court. Fed. R. Civ. P. 26 mandates initial disclosures; California does not. Brief discussion of preliminary conference in federal court Brief discussion of content of initial disclosures https://www.youtube.com/watch?v=wMHsojpGV5o

Discovery Definition Timing Scope Obtaining information prior to trial, from opponents and other witnesses regarding information relevant to causes of action Timing Check the applicable rules! In federal court, after initial disclosures, and in accordance with agreed-upon schedule. In state court, discovery may begin immediately, although there are different requirements for plaintiffs and defendants. Scope Generally, any non-privileged matter that is relevant to any party’s claim or defense. Relevant information does not need to be admissible at trial if reasonably calculated to lead to the discovery of admissible evidence. A court may permit broader discovery upon showing of good cause.

Discovey Limits Courts may limit discovery if it is cumulative, marginally relevant, obtainable through another source (or in possession of the requesting party or public domain), not in the responding party’s possession, custody, or control, or unduly burdensome. Courts do not look favorably on a “fishing expedition,” but tend to prefer to liberally allow discovery. Discovery of privileged or protected materials is not permitted (i.e., attorney-client privilege, work product doctrine, trade secrets, protections afforded by constitution or statute, privileges between client and healthcare worker, etc.). Types Documents (incl. emails, paper documents, official reports, witness statements, calendars) Videos, phone recordings, photographs; physical evidence, site or object inspection Answers to written questions; written admissions Depositions

Discovery Purposes & Considerations Considering your litigation strategy, what would be your goals in requesting discovery? Gather information to support each of your claims/defenses Gather information to contradict other side’s arguments Narrow issues (if you can get admissions or knock out claims in summary judgment) Prevent surprises Promote settlement Preserve evidence What would be your concerns? Giving up unfavorable information Getting bad information from the other side that now can be used in case Likelihood of discovery disputes and related delays Costs

Written Discovery – Document Requests Written requests asking the other side to produce documents at a specific time and place What is Considered a “Document”? Timing: Check applicable rules! Review rules regarding time to propound and respond How Many? Review rules regarding number of permitted requests in each set; number of sets permitted Format and Contents Caption page Preliminary paragraph Instructions Definitions Requests

Written Discovery – Document Requests Considerations What would be your goals in serving RFPs? Get as many documents as possible to support your position without being unreasonable Show other side you are serious in terms of time/money to be spent on the case, and/or your knowledge of the case to facilitate settlement Ensure you have what you need for future discovery such as depositions or for future stages of the case such as motions, trial What would be your concerns? Crafting requests that are as unobjectionable as possible Potential for opposing counsel to delay and attempt to prevent/limit production Costs

Written Discovery – Document Requests Responses & Objections Timing Check applicable rules! Format and Contents Tracks format for Requests Types and appropriateness of objections Vague / ambiguous Overbroad / unduly burdensome Privilege / protection Not within possession, custody, control Equally available to other party

Written Discovery – Document Requests Considerations What would be your goals in responding to RFPs? Defend your case Try to avoid production of harmful documents while ensuring you are complying with your duty to respond Produce helpful documents Avoid problematic objections What would be your concerns? Potential for motion to compel Costs Opposing counsel may treat you the way you treat them – is it in your interests to take a hard line stance or to be cooperative https://www.youtube.com/watch?v=brOKmd-t0Ks

Written Discovery – Interrogatories Written questions sent to the other side to answer Types Special Interrogatories Form Interrogatories Timing: Check applicable rules! How Many? Review rules for number of requests in each set; number of sets Format and Contents: Special Interrogatories Caption page Preliminary paragraph Instructions Definitions Requests Format and Contents: Form Interrogatories Fill out form

Written Discovery – Interrogatories Considerations What would be your goals in serving interrogatories? Find out as much information as possible to support your position Find out unhelpful information if necessary Demonstrate your knowledge of case to facilitate settlement Target your questions to specific issues Use questions to find out information for future document (or other) requests Preparation for depositions or later stages of case What would be your concerns? Crafting requests that are as unobjectionable as possible Potential for opposing counsel to delay and object to everything Costs Lawyers, not parties, typically draft the answers

Written Discovery – Interrogatories Responses & Objections Timing Check applicable rules! Format and Contents Tracks format for Requests Types and appropriateness of objections Vague / ambiguous Overbroad / unduly burdensome Privilege / protection Not within possession, custody, control Equally available to other party

Written Discovery – Interrogatories Considerations What would be your goals in responding to Interrogatories? Defend your case Try to avoid production of harmful documents while ensuring you are complying with your duty to respond Produce helpful documents Avoid problematic objections What would be your concerns? Potential for motion to compel Costs Opposing counsel may treat you the way you treat them – is it in your interests to take a hard line stance or to be cooperative

Written Discovery – Requests for Admission Written requests for the other side to admit certain facts Admission becomes evidence Timing: Check applicable rules! How Many? Review rules for number of requests in each set; number of sets Format and Contents: Caption page Preliminary paragraph Instructions Definitions Requests Interplay with Form Interrogatories

Written Discovery – Requests for Admission Considerations What would be your goals in serving RFAs? Get as many helpful admissions as possible while avoiding objections Demonstrate your knowledge of case to facilitate settlement Preparation for depositions or later stages of case What would be your concerns? Crafting requests that are as unobjectionable as possible Potential for opposing counsel to delay and object to everything Costs

Written Discovery – Requests for Admission Responses & Objections Timing Check applicable rules! Format and Contents Tracks format for Requests Types and appropriateness of objections Vague / ambiguous Overbroad / unduly burdensome Privilege / protection Not within knowledge Equally available to other party

Written Discovery – Requests for Admission Considerations What would be your goals in responding to RFAs? Avoid making admissions, but remember you are required to admit things that are true Defend your case Avoid problematic objections What would be your concerns? Potential for motion to compel Costs Opposing counsel may treat you the way you treat them – is it in your interests to take a hard line stance or to be cooperative

In-Class Exercise Meet with your “firm” to draft Document Requests, Special Interrogatories, and Requests for Admission, based on your case strategy. Please draft three individual requests for each. You do not need to draft the introductory sections. Exchange your requests with your opposing “firm.” Draft responses to the opposing firm’s requests.

Overview of Next Class Tomorrow We will discuss discovery disputes and the meet and confer process. Your “firm” will meet and confer with your opposing “firm” about the requests and responses you worked on today. We will then discuss the requests and responses as well as your meet and confers as a class.