1. Production of Documents/Inspection of “things” February 16, 2011 Advanced Civil Litigation

2. Agenda Deposition assignment Document production/ Inspection of “things” General overview under Federal and California rules Paralegal role Preparing for later discovery Procedures for making request or demand Compliance procedures Documents in possession of third parties

3. Requesting Documents and Other Tangible Evidence CCP 2031: Allows inspection of things in control of a party by making a demand/request Fed. Rules Civ. Proc. 34—similar to state rule

4. CCP 2031/ FRCP 34 RELATES TO ITEMS IN POSSESSION, CUSTODY OR CONTROL OF PARTY INSPECTION (COPY) OF DOCUMENTS INSPECTION OF TANGIBLE THINGS INSPECTION OF LAND

5. Document Production: “The Smoking Gun” Larry Ellison job harassment case Why it is important Special problems with ESI

6. Paralegal Role—document production Organize documents prior to requests Help draft documents for request Help locate and produce documents that are requested Monitor for privileged documents Maintain privilege log Maintain production log

7. Review—Do you remember other ways to obtain Documents in possession of a party? Documents in possession of a third person? Public documents?

8. The Way Document Production Works One party requests documents from other party Requests must be fairly specific: All documents sent to Laura Cross after 1/1/2009 All documents written by Laura Cross after…. All documents dealing with the IVP procedure of Leo Bradshaw

9. Another example: REQUEST FOR PRODUCTION NO. 5: Please produce each and every document, if any, containing notes of any conversation during which was mentioned any one or more of the following individuals: a. Paula Jones; b. Frank Tappin; c. Larry Patterson; d. Roger Perry; e. Danny Ferguson; f. Ronnie Anderson; g. Pamela Blackard; h. Debra Ballentine; i. Raymond L. "Buddy" Young.

10. Before you begin A lawsuit involves 1 million documents. How do you find specific requested documents? Document Coding See page 338 in text for database fields “Predictive Coding” Read article on Web site

11. Let’s Try It

12. CCP 2031.010 et seq. Demand to produce/inspect/photograph/ test or sample : Documents Photos Any tangible thing In custody, control of possession of a party

13. INSPECTION UNDER 2031 INSPECT PHOTOGRAPH TEST SAMPLE COPY MEASURE SURVEY BY PARTY OR REPRESENTATIVE

14. The Documents: DEMAND FOR PRODUCTION FIRST PARAGRAPH: DEMANDING PARTY, SET NUMBER AND RESPONSIDNG PARTY EACH DEMAND IN A SET TO BE SEPARTELY NUMBERED

15. DEMAND FOR PRODUCTION (C0NT) DOCUMENTS OR ITEMS TO BE SPECIFICALLY DESCRIBED BY ITEM OR CATEGORY SPECIFY REASONABLE TIME FOR INSPECTION AT LEAST 30 DAYS IN FUTURE

16. DEMAND FOR PRODUCTION (CONT) SPECIFY PLACE FOR INSPECTION SPECIFY ANY RELATED ACTIVITY (I.E. TEST) SERVE ON ALL PARTIES

17. Let’s take a look http://www.scefiling.org/filingdocs/215/4790/7 131e_ExxDxtoxDCL.pdf http://www.scefiling.org/filingdocs/215/4790/7 131e_ExxDxtoxDCL.pdf (Santa Clara County Efiling Website— document 720 Antelope Valley Cases)

18. RESPONSE TO DEMAND MOTION FOR PROTECTIVE ORDER WRITTEN RESPONS AGREE TO COMPLY OBJECT STATEMENT OF INABILITY TO COMPLY RESPOND TO EACH ITEM SIGNED BY PARTY UNDER OATH SERVED WITHIN 20 DAYS OF SERVICE

19. Let’s take a look Antelope Valley cases document 694, 688 and 345

20. FAILURE TO FILE WRITTEN RESPONSE WAIVER OF OBJECTIONS RELIEVED BY MOTION DEMANDING PARTY MAKES MOTION TO COMPEL (AFTER MEET AND CONFER)

21. MOTION TO COMPEL FURTHER RESPONSE CONTESTS OBJECTIONS OR STATEMENT OF INABILITY TO PRODUCE MADE WITHIN 45 DAYS OF SERVICE OF WRITTEN RESPONSE

22. MOTION FOR COMPLIANCE MADE AS A RESULT OF FAILURE TO ACTUALLY PRODUCE

23. The Production Documents Hire businesses to do this (i.e. Cook and Assoc.) Set up time and place for inspection an copying

24. Practical Aspects of Document Production: Producing Party Organize documents Read and identify documents Code documents Create privilege log

25. Documents in custody of Non-party Depostion of Records

26. Why a deposition? Only discovery allowed against non-party Nature of this deposition Not a traditional depo

27. DEPOSITION OF BUSINESS RECORDS-- CCP 2020.020 et seq. RECORDS NOT IN POSSESSION OF PARTY DEPOSITION SUBPOENA (JC Form Subp-010 COMPLIANCE NO EARLIER THAN 20 DAYS AFTER ISSUANCE OR 15 DAYS AFTER SERVICE WHICHEVER IS LATER Also must comply with consumer records requirement NO DECLARATION OF GOOD CAUSE REQUIRED

28. DEPOSITION OFFICER PROFESSIONAL, REGISTERED PHOTOCOPIER NO FINANCIAL INTEREST IN MATTER

29. DELIVERY OF RECORDS MADE EITHER AT PLACE OF DEPO OFFICER OR INSPECTION TAKES PLACE AT OFFICE OF BUSINESS WHOSE RECORDS ARE SOUGHT

30. DELIVERY OF RECORDS, cont COMPLY WITH REQUIREMENTS OF EVIDENCE CODE 1560 THROUGH 1563 COMPLY WITH REQUIREMENTS OF NOTICE TO CONSUMER

31. EVIDENCE CODE 1560-63 CUSTODIAN CAN DELIVER COPY TO DEPO OFFICER WITH PROPER AFFIDAVIT DEMANDING PARTY MUST PAY FOR COPIES (COST PER PAGE AND PER HOUR FOR PERSON COPYING)

32. CCP 1985.3--NOTICE TO CONSUMER REQUIRED PRIOR TO DATE FOR PRODUCTION SERVED AT LEAST 10 DAYS PRIOR TO PRODUCTION AND 5 DAYS PRIOR TO SERVICE ON CUSTODIAN

33. Putting it into practice: You want a party’s school records—what are your timing and service requirements? It’s February 16 and your attorney says to get them as soon as possible: Subpoena Requirements Consumer record requirements