The Discovery Phase and Depositions PART I: THE DISCOVERY PHASE: WHAT IT IS AND WHAT DO YOU DO? Professor Steve Byrne ’77 Professor Don Forgey ‘77 Professor Reagan Boyce ‘06 PART II: DEPOSITIONS –TAKING DEPOSITIONS Professor Don Forgey ’77 –DEFENDING DEPOSITIONS Professor Heidi Yoshioka ’89 –DEPOSITION DEMONSTRATION

What is it and What do you do? The Discovery Phase: What is it and What do you do? Reagan Boyce ’09 Ezra Brutzkus Gubner LLP Donald G. Forgey ‘77 Lewis Brisbois Bisgaard & Smith Steven P. Byrne ‘77 Byrne and Associates

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 a.Depositions Evaluate the witness Lock in their story b.Written Interrogatories Responses are filtered through the attorney c.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

Objections to Discovery? a)Evidence Code b)Rules of Civil Procedure i.Format ii. Number of questions iii. Court Rules c)Privileges, Trade Secrets, Proprietary Information i. Limited Disclosure ii. Protective Orders

Discovery Disputes a)Meet and Confer Requirement b)Motion to Compel c)Appointment of Referee

In Class Assignment