1. © 2005 by Thomson Delmar Learning. All Rights Reserved.1 CALIFORNIA CIVIL LITIGATION DISCOVERY OVERVIEW

2. 2 PURPOSES OF DISCOVERY 1. Improve presentation of trial evidence 2. Focus on issues 3. Eliminate surprise at trial

3. 3 DISADVANTAGES OF DISCOVERY 1. Expensive 2. Causes disputes 3. Educates opposition

4. 4 DISCOVERY TOOLS 1. Interrogatories 2. Requests for Admissions 3. Depositions 4. Requests for Inspection 5. Independent Medical Exams 6. Expert discovery

5. 5 INTERROGATORIES— written questions by parties to parties’ written responses, under oath.

6. 6 REQUESTS FOR ADMISSIONS  Written statements of fact or opinion  By parties to parties  Admitted or denied under oath

7. 7 DEPOSITIONS  Oral questions  By party to any person or entity  Answered orally, under oath  Transcribed

8. 8 REQUESTS FOR INSPECTION  Written request for inspection of documents or things  By parties to parties  Written response under oath  Production by respondent

9. 9 INDEPENDENT MEDICAL EXAM (IME)— physical or mental examination of a party by licensed professional at request of party.

10. 10 EXPERT DISCOVERY— exchange of disclosure of identities of experts hired by parties, at the demand of parties, and their depositions.

11. 11 LIMITS TO DISCOVERY 1. Scope 2. Privileges 3. Timing

12. 12 SCOPE OF DISCOVERY— inquiry that may reasonably assist a party in: evaluating the case, preparing for trial, and negotiating for settlement.

13. 13 LIBERALLY APPLIED— courts permit any discovery reasonably intended to lead to the discovery of admissible evidence.

14. 14 PRIVILEGED INFORMATION— information protected by a special relationship intended to foster honesty. It cannot be discovered even if relevant.

15. 15 COMMON PRIVILEGES  Attorney-client  Husband-wife  Priest-penitent  Attorney workproduct

16. 16 ATTORNEY-CLIENT PRIVILEGE  Protects communications  Exists between attorney and client  Undertaken to give or receive legal advice  May be asserted by client, or by attorney on behalf of client

17. 17 WAIVER OF PRIVILEGE Attorney-client privilege may be waived by disclosure to unnecessary third parties.

18. 18 ATTORNEY WORKPRODUCT PRIVILEGE  Protects discovery of “mental impressions”  Covers attorney and legal staff  Asserted by the attorney

19. 19 DISCOVERY TIMING STATE COURT After service: plaintiff may not engage in discovery for 10 days after service. Before trial: discovery is “cut off” 30 days before trial.* * Except expert discovery – cutoff is 15 days before trial.

20. 20 DISCOVERY TIMING FEDERAL COURT After service: no discovery until after initial disclosure. Before trial: trial judge will order cutoff date.

21. 21 “RULE OF 35” UNLIMITED CIVIL CASES  35 each of special interrogatories and requests for admissions  Unlimited form interrogatories

22. 22 “RULE OF 35” LIMITED CIVIL CASES  35 total special interrogatories, form interrogatories, and requests for admissions  One deposition per side

23. 23 FEDERAL COURT LIMITS Similar to state court. (see local rules)

24. 24 DISCOVERY PLANS Why have a discovery plan?

25. 25 DISCOVERY PLANS 1. Outline elements and facts of the case 2. Determine the opposition’s approach 3. Decide which discovery tools to use

26. 26 CHALLENGES OF DISCOVERY PLANS To figure out which discovery tools to use To coordinate timing and content with other discovery and the trial calendar

27. 27 SUMMARY Discovery Tools and Rules PREVIEW Interrogatories SUMMARY Discovery Tools and Rules PREVIEW Interrogatories