Advanced Civil Litigation Class 11Slide 1 Production of Documents Scope Scope Includes documents of all types, including pictures, graphs, drawings, videos Includes documents of all types, including pictures, graphs, drawings, videos Includes documents stored electronically Includes documents stored electronically Does not include privileged info or work product Does not include privileged info or work product Can be avoided if it would be too burdensome to produce Can be avoided if it would be too burdensome to produce Procedure Procedure Request similar to interrogatories or deposition notices served on the other party by mail Request similar to interrogatories or deposition notices served on the other party by mail Internal Preparation for the Production and Inspection Request Internal Preparation for the Production and Inspection Request A cost-benefit analysis must be made to determine if you can really analyze all the info you request A cost-benefit analysis must be made to determine if you can really analyze all the info you request Don’t “bite off more than your office can chew” Don’t “bite off more than your office can chew”

Advanced Civil Litigation Class 11Slide 2 Drafting the Request for Production The heading should be the same as the complaint, etc. The heading should be the same as the complaint, etc. This can be part of a “combined discovery request. This can be part of a “combined discovery request. Use a separate paragraph for each type of document you’re seeking Use a separate paragraph for each type of document you’re seeking Some guidelines for drafting the request: Some guidelines for drafting the request: Describe what you want to the extent that a reasonable person would understand what you’re looking for Describe what you want to the extent that a reasonable person would understand what you’re looking for Organize by type of evidence requested Organize by type of evidence requested Include an instruction that the other party explain which documents are being produced with regard to each question Include an instruction that the other party explain which documents are being produced with regard to each question Don’t just let them give you big pile of documents… Don’t just let them give you big pile of documents… Specify that you’re also looking for electronically stored information Specify that you’re also looking for electronically stored information

Advanced Civil Litigation Class 11Slide 3 Getting Ready and Serving the Request The request must be signed by an attorney for the firm The request must be signed by an attorney for the firm Preferably the one directing the discovery Preferably the one directing the discovery The request should be sent by certified or registered mail The request should be sent by certified or registered mail Since the request does not have to filed with the court, make sure that you get an acknowledgment of the request. Since the request does not have to filed with the court, make sure that you get an acknowledgment of the request. Don’t send discovery requests by unless you know and trust your opponent. s are too easy to pretend you never got or to alter. Don’t send discovery requests by unless you know and trust your opponent. s are too easy to pretend you never got or to alter.

Advanced Civil Litigation Class 11Slide 4 Preparing for Production of Documents Spoliation and the Duty to Preserve Evidence Spoliation and the Duty to Preserve Evidence Destruction of evidence can be a crime or at least contempt of court. Therefore, you should in general: Destruction of evidence can be a crime or at least contempt of court. Therefore, you should in general: Have the clients adopt a document retention policy Have the clients adopt a document retention policy Inform the client of the duty to preserve evidence Inform the client of the duty to preserve evidence Sent a “litigation hold letter” if litigation is imminent, telling the client’s employees not to destroy or give out documents Sent a “litigation hold letter” if litigation is imminent, telling the client’s employees not to destroy or give out documents Initial Steps—Checklist Initial Steps—Checklist Similar to checklist for interrogatories (page ) Similar to checklist for interrogatories (page ) Locate Documents/Computer Data Locate Documents/Computer Data Pull Files and Documents Pull Files and Documents Converting Paper to Electronic Files (Imaging) Converting Paper to Electronic Files (Imaging) “Pulling” Electronically Stored Information “Pulling” Electronically Stored Information

Advanced Civil Litigation Class 11Slide 5 Preparing for Production 2 Screen Pulled Files and Documents Screen Pulled Files and Documents Objectives of the Screening Process Objectives of the Screening Process Identify documents that should be produced Identify documents that should be produced Organize them and classify them Organize them and classify them Match documents with the question that requested them Match documents with the question that requested them Use a standard numbering system to match each document with the element of the case it is relevant to Use a standard numbering system to match each document with the element of the case it is relevant to Have the Attorney Review the Documents Have the Attorney Review the Documents Extract Privileged and Work Product Documents Extract Privileged and Work Product Documents Redaction Redaction When turning over electronically stored documents, use formats like a non-writeable.pdf; not something that can be altered by someone else later on. When turning over electronically stored documents, use formats like a non-writeable.pdf; not something that can be altered by someone else later on.

Advanced Civil Litigation Class 11Slide 6 Preparing for Production 3 Have Documents Copied Have Documents Copied Keep the original in the original file; make a copy for the opponent and a copy so that you can have all the documents you turned over in one convenience place Keep the original in the original file; make a copy for the opponent and a copy so that you can have all the documents you turned over in one convenience place Prepare Documents for Examination Prepare Documents for Examination Retrieve the Documents Retrieve the Documents Return the Documents and Retain Indexes Return the Documents and Retain Indexes Quality Control Quality Control The firm’s system, whereby every request is indexed and recorded, should be maintained regarding every discovery process The firm’s system, whereby every request is indexed and recorded, should be maintained regarding every discovery process Security Security Documents should be kept under lock and key Documents should be kept under lock and key Electronice documents must be password protected Electronice documents must be password protected

Advanced Civil Litigation Class 11Slide 7 Analyzing the Opponent’s Document Production Apply the same process discussed earlier regarding: Apply the same process discussed earlier regarding: Making sure you understand which document was produced in reference to which questions Making sure you understand which document was produced in reference to which questions This can help provide context for the document This can help provide context for the document Review the documents for compliance with your requests. Review the documents for compliance with your requests. If the opponent didn’t comply, tell the opponent. If the failure is consistent or repeated, consider moving for sanctions against them If the opponent didn’t comply, tell the opponent. If the failure is consistent or repeated, consider moving for sanctions against them Then, organize them in terms of relevance to your case Then, organize them in terms of relevance to your case Make it easy for someone analyzing each element to find the documents related to that element Make it easy for someone analyzing each element to find the documents related to that element

Advanced Civil Litigation Class 11Slide 8 Request for Physical and Mental Examination Purpose Purpose Good cause is required- it has to have a strong relationship to an element of the case Good cause is required- it has to have a strong relationship to an element of the case Scope Scope Only a party (or someone under a party’s control) can be forced to submit and only for good cause Only a party (or someone under a party’s control) can be forced to submit and only for good cause Procedure Procedure Set Up the Exam Set Up the Exam Draft the Documents Draft the Documents Notification of time and place of exam Notification of time and place of exam Motion for Compulsory Physical Examination if necessary Motion for Compulsory Physical Examination if necessary Inform the Client Inform the Client Request the Report after the exam- each side is entitled to a copy of the report of any Rule 35 exam Request the Report after the exam- each side is entitled to a copy of the report of any Rule 35 exam

Advanced Civil Litigation Class 11Slide 9 Request for Admission Purpose Purpose To dispense with having to prove facts at trial that there’s no real dispute over; saving the court’s time as well To dispense with having to prove facts at trial that there’s no real dispute over; saving the court’s time as well Procedure Procedure Send a statement of the facts you want admitted, along with supporting documents, if any Send a statement of the facts you want admitted, along with supporting documents, if any Preparing the Request for Admission Preparing the Request for Admission Don’t ask compound questions; make every aspect you’d like admitted into a separate question Don’t ask compound questions; make every aspect you’d like admitted into a separate question Responding to a Request for Admission Responding to a Request for Admission Must respond within 30 days or it is deemed admitted Must respond within 30 days or it is deemed admitted You can certainly qualify an admission; admit it partially, etc You can certainly qualify an admission; admit it partially, etc Just explain what you’re admitting and what you’re not Just explain what you’re admitting and what you’re not You can amend your response if new facts come to light… You can amend your response if new facts come to light…

Advanced Civil Litigation Class 11Slide 10 Objections, Compelling Discovery, and Sanctions Objecting to Discovery request Objecting to Discovery request You must notice your opponent that you’re not responding because you object; you can’t just ignore the request You must notice your opponent that you’re not responding because you object; you can’t just ignore the request Protective Orders Protective Orders This is a pre-emptive order from the course that certain info need not be turned over because it’s privileged or work product or whatever the grounds are This is a pre-emptive order from the course that certain info need not be turned over because it’s privileged or work product or whatever the grounds are Compelling Discovery Compelling Discovery If a party objects and/or refuses to comply, you can ask the court to force the party to comply by motion If a party objects and/or refuses to comply, you can ask the court to force the party to comply by motion Sanctions Sanctions If the party fails to comply with a discovery request or fails to follow a court order, Rule 37 provides that the party can be sanctioned by the court, including: If the party fails to comply with a discovery request or fails to follow a court order, Rule 37 provides that the party can be sanctioned by the court, including: Striking part of the pleadings, monetary sanctions, etc. Striking part of the pleadings, monetary sanctions, etc.

Advanced Civil Litigation Class 11Slide 11 The Freedom of Information Act Definition and Purpose Definition and Purpose This requires most government agencies to give out non- classified information to anyone wo requests it This requires most government agencies to give out non- classified information to anyone wo requests it This can be a valuable source of information during the discovery process This can be a valuable source of information during the discovery process There is virtually no limit as to what can be sought There is virtually no limit as to what can be sought Procedure Procedure There are specific request filing procedures under federal law There are specific request filing procedures under federal law Limits Limits Classified info, internal personnel rules and practices, trade secrets, private party’s confidential info, some law enforcement records, some other types of info protected for national security purposes, etc. Classified info, internal personnel rules and practices, trade secrets, private party’s confidential info, some law enforcement records, some other types of info protected for national security purposes, etc.

Advanced Civil Litigation Class 11Slide 12 Organizing Files Use cover sheets that indicate the info on the caption on course papers. Use cover sheets that indicate the info on the caption on course papers. Separate file by: Separate file by: Pleadings Pleadings Discovery requests to plaintiff with responses Discovery requests to plaintiff with responses Discovery requests to defendant with responses Discovery requests to defendant with responses Notices of deposition and transcripts Notices of deposition and transcripts Motions (use a separate sub file for each motion, including supporting papers Motions (use a separate sub file for each motion, including supporting papers Don’t be afraid to have the same document in many different folders if it’s relevant to different parts of the case Don’t be afraid to have the same document in many different folders if it’s relevant to different parts of the case Memoranda of law Memoranda of law Trial record Trial record Appellate documents Appellate documents