1. 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.

2. 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

3. 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

4. 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.

5. 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. s, paper documents, official reports, witness statements, calendars)
Videos, phone recordings, photographs; physical evidence, site or object inspection
Answers to written questions; written admissions
Depositions

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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.

20. 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.