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Civil Litigation:Process and Procedures        Chapter Eleven   The Paralegal In Discovery
The Purpose of Discovery              Share information prior to trial in               order to                    Eval...
Case Evaluation                After discovery, each side                     Is aware of the potential evidence to be  ...
Preparing for Trial    Discovery eliminates “surprise” in the     courtroom           Witness & evidence lists are avail...
Preserving Oral Testimony    Potential witnesses who are deposed become     unable to attend trial           Gravely ill...
Court and Evidence Rules    Rules governing trial may be derived from           Federal, or State Rules of Civil Procedu...
Scope of Discovery    All information in the possession of a party     is discoverable, unless it is           Privilege...
PrivilegeTrammell v. United States, 445 U.S. 40 (1980):“The privileges between priest and penitent, attorney and  client, ...
Claim of Privilege    Not automatically invoked    Must demonstrate           Intended to be confidential           Wa...
Common Interest Privilege    Permits a client to share confidential     information with the attorney for another     who...
Work Product DoctrineHickman v. Taylor, 329 U.S. 495, 511 (1947)“ Proper preparation of a client’s case demands that [an  ...
Work Product –    Limited Protection    Material prepared by the attorney or legal team    In anticipation of litigation...
Third-PartyDocument ExceptionIn re Grand Jury Subpoenas, 318 F.3d 379, 385 (2nd Cir.   2002)“Where a request is made for d...
Inadvertent Disclosure    Prevention is the best medicine           Good screening policies           Safeguards agains...
ABA Ethics Opinion ABA formal opinion, 05-437“A lawyer who receives a document from  opposing parties or their lawyers an...
Internal Investigation Reports    In order to comply with state & federal     laws & regulations, businesses may be     r...
Types of Discovery    Depositions    Written interrogatories    Production of documents or things           Permission...
Purpose of Discovery    Understand & evaluate the client’s case    Understand & evaluate the opposing     party’s case ...
Depositions    Questions asked of a witness or party           Under oath (subject to penalties for perjury)           ...
Interrogatories    Written questions           Asked of a party, only           To be answered in writing           Un...
Production ofDocuments or Things    Asks for documents, paper or electronic,     or other physical objects    Must respo...
Physical andMental Examinations    Arranged by consent or court order (not     an informal discovery device    Only perm...
Requests for Admission    Limited to factual issues           Generally ownership, names, addresses, etc.           Nar...
Sequence andTiming of Discovery    Strategic decision of the sequence           Information builds throughout the proces...
Federal Court TimelineCivil Litigation: Process and Procedures        © 2009 Pearson Education, Upper Saddle River, NJ 074...
Disclosure Requirements    Everything the legal teams rely upon to     prove their claims must be disclosed           Pr...
Material to be Disclosed    Anything relied upon to prove the claim,     admissible or not    May include           Ide...
Disclosure of Experts    Identity    Qualifications    List of publications for the last 10 years (if     applicable) ...
Discovery ofElectronic Documents    Businesses should have a formal retention     policy    Issues with electronic docum...
E-Discovery              Traditional discovery tools used to obtain               documents created, disseminated & store...
Preserving Electronic Materials     Business record retention policy     Reasonable belief that litigation may arise fro...
Claw-Back Provision    Electronic proliferation of documents     creates a new problem of protecting     privileged infor...
Costs of ProducingElectronic Materials    May be minor if all requested materials are     electronically available in a c...
Sample ClauseCivil Litigation: Process and Procedures        © 2009 Pearson Education, Upper Saddle River, NJ 07458.      ...
Discovery Obligations    Avoid making requests that are           Duplicative           Burdensome           Oppressiv...
Compliance    Begins with a reliable calendaring or tickler     system for due dates    If difficulties arise, timely re...
Failure to Receive a Response    First contact is customarily informal, one     office to the other    A motion to compe...
Answers toDiscovery Requests    Two copies made of requests           One working office copy                  Review w...
Preparing Answers    A client interview is set           Meet & prepare initial answers           Review with attorney...
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Transcript of "Chapter 11 eleven paralegal in discovery civ lit 2"

  1. 1. Civil Litigation:Process and Procedures Chapter Eleven The Paralegal In Discovery
  2. 2. The Purpose of Discovery  Share information prior to trial in order to  Evaluate the client’s case (identify strengths & weaknesses)  Evaluate the opponent’s case  Facilitate settlement  Expedite trial with admissions  Prepare to impeach witnesses or locate rebuttal evidenceCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 2
  3. 3. Case Evaluation  After discovery, each side  Is aware of the potential evidence to be presented  Has a better picture of potential damages  The legal team can research  Prior cases in the firm  Reported similar cases  Will balance the probable trial outcome against settlement offers or demandsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 3
  4. 4. Preparing for Trial Discovery eliminates “surprise” in the courtroom  Witness & evidence lists are available before trial  Witnesses can be deposed before testifying  The Rules of Civil Procedure provide a framework for the timeline & scope of discoveryCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 4
  5. 5. Preserving Oral Testimony Potential witnesses who are deposed become unable to attend trial  Gravely ill  Elderly or incapacitated (physically unable)  Outside the court’s geographical jurisdiction May ask to use the deposition material, as long as there was adequate opportunity to cross-examine and objectCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 5
  6. 6. Court and Evidence Rules Rules governing trial may be derived from  Federal, or State Rules of Civil Procedure or Evidence  Local court rules  Rules for a particular judge Common rules level the playing field, enhance process fairnessCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 6
  7. 7. Scope of Discovery All information in the possession of a party is discoverable, unless it is  Privileged  Attorney work product  Not relevant, or apt to lead to relevant evidence Material does not have to be admissible to be discoverableCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 7
  8. 8. PrivilegeTrammell v. United States, 445 U.S. 40 (1980):“The privileges between priest and penitent, attorney and client, and physician and patient…are rooted in the imperative need for confidence and trust. *** The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client’s reason for seeking representation if the professional mission is to be carried out.”Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 8
  9. 9. Claim of Privilege Not automatically invoked Must demonstrate  Intended to be confidential  Was kept confidential  Made in the course of obtaining/providing legal advice or services  Extends to agents (paralegals, accountants, other experts)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 9
  10. 10. Common Interest Privilege Permits a client to share confidential information with the attorney for another who shares a common interest  Must be an identical interest, not just similar  Must be a legal interest, not solely commercialCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 10
  11. 11. Work Product DoctrineHickman v. Taylor, 329 U.S. 495, 511 (1947)“ Proper preparation of a client’s case demands that [an attorney] assemble information, sift what he considers to be the relevant from the irrelevant fact, prepare his legal theories and plan his strategy without undue and needless interference.***This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways – …the “work product of the lawyer.’”Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 11
  12. 12. Work Product – Limited Protection Material prepared by the attorney or legal team In anticipation of litigation  Stricter than attorney/client privilege  Must be for specific litigation, not in the course of general representation Does not extend to material prepared by a third party in the ordinary course of business, even if it is in the attorney’s possessionCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 12
  13. 13. Third-PartyDocument ExceptionIn re Grand Jury Subpoenas, 318 F.3d 379, 385 (2nd Cir. 2002)“Where a request is made for documents already in the possession of the requesting party, with the precise goal of warning what the opposing attorney’s thinking or strategy may be, even third-party documents may be protected.”Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 13
  14. 14. Inadvertent Disclosure Prevention is the best medicine  Good screening policies  Safeguards against transmission errors Different judicial views of privilege  Automatic waiver, since confidentiality is breached  No waiver, since there was no knowing waiver by the client (privilege holder)  Balancing test, based on protection & correction efforts, the extent of disclosure, and fairnessCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 14
  15. 15. ABA Ethics Opinion ABA formal opinion, 05-437“A lawyer who receives a document from opposing parties or their lawyers and knows or reasonably should know that the document was inadvertently sent should promptly notify the sender in order to permit the sender to take protective measures.”Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 15
  16. 16. Internal Investigation Reports In order to comply with state & federal laws & regulations, businesses may be required to perform internal audits  Proactive approach to identifying violations  May be protected by privilege (to some extent) in order to encourage complianceCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 16
  17. 17. Types of Discovery Depositions Written interrogatories Production of documents or things  Permission to enter upon land  Inspection of non-movable items Physical or mental exams Requests for admissionsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 17
  18. 18. Purpose of Discovery Understand & evaluate the client’s case Understand & evaluate the opposing party’s case Trial preparation Preserve testimony Impeach witness testimony Facilitate settlementCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 18
  19. 19. Depositions Questions asked of a witness or party  Under oath (subject to penalties for perjury)  Recorded  Stenographically  Videotaped  Audio recordingsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 19
  20. 20. Interrogatories Written questions  Asked of a party, only  To be answered in writing  Under oath (subject to penalties for perjury)  Factual  Biographical information  Witness information  Documents, recordsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 20
  21. 21. Production ofDocuments or Things Asks for documents, paper or electronic, or other physical objects Must respond to each request  Produce the document  Specify an objection (e.g., privilege)  Arrange for an on-site inspection, or right to entry, if delivery is impossible (e.g., large machinery or land)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 21
  22. 22. Physical andMental Examinations Arranged by consent or court order (not an informal discovery device Only permitted if the physical or mental condition of the party is an issue (e.g., personal injury case) Defendants may choose the physician to conduct an examCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 22
  23. 23. Requests for Admission Limited to factual issues  Generally ownership, names, addresses, etc.  Narrow the focus of the trial by eliminating non-controversial issues  “Judicial economy” – saves court time Once admitted, no evidence concerning this point will be admitted at trialCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 23
  24. 24. Sequence andTiming of Discovery Strategic decision of the sequence  Information builds throughout the process  Cost considerations in combining depositions Timing may be set in a “meet & confer” conference  Occurs within a set time after the Δ is served  Attorneys first meet to work out an agreement  Then the attorneys & judge agree to the discovery timetableCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 24
  25. 25. Federal Court TimelineCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 25
  26. 26. Disclosure Requirements Everything the legal teams rely upon to prove their claims must be disclosed  Promotes early evaluation & settlement  Reduces the need for formal discovery Timeframe may be altered by consent Investigation should be completed before filingCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 26
  27. 27. Material to be Disclosed Anything relied upon to prove the claim, admissible or not May include  Identity of witnesses  Documents  Computation of damages  Insurance policiesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 27
  28. 28. Disclosure of Experts Identity Qualifications List of publications for the last 10 years (if applicable) Statement of compensation List of other cases A written report of his or her opinionCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 28
  29. 29. Discovery ofElectronic Documents Businesses should have a formal retention policy Issues with electronic documents  Obtaining (what format)  Retaining (how long, which documents)  Preserving (chain of evidence, metadata)  Restoring (attempted destruction or alteration)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 29
  30. 30. E-Discovery  Traditional discovery tools used to obtain documents created, disseminated & stored electronically  Rules address  Preserving electronic materials  Producing them upon proper request  Destruction  Litigation hold  Retention policyCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 30
  31. 31. Preserving Electronic Materials  Business record retention policy  Reasonable belief that litigation may arise from a dispute  Knew or should have known  Duty to preserve (litigation hold)  Precedes actual suit  E-discovery coordinators  Are familiar with the party’s system  Are knowledgeable about e-discovery  Can participate in e-discovery dispute resolutionCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 31
  32. 32. Claw-Back Provision Electronic proliferation of documents creates a new problem of protecting privileged information A claw-back agreement  Requires the return of inadvertently disclosed privileged communications  Determines when, or if, waiver occurs  May be on-goingCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 32
  33. 33. Costs of ProducingElectronic Materials May be minor if all requested materials are electronically available in a compatible format Will dramatically increase if  The volume for review is enormous  The materials are archived, corrupted or deleted  Spoliation  May result in a transfer of costsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 33
  34. 34. Sample ClauseCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 34
  35. 35. Discovery Obligations Avoid making requests that are  Duplicative  Burdensome  Oppressive The duty to supplement or revise is ongoing  Additional information becomes available  Different information becomes knownCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 35
  36. 36. Compliance Begins with a reliable calendaring or tickler system for due dates If difficulties arise, timely requests for extensions must be made The parties can stipulate to changes in the initial discovery order Sanctions are possible for non-compliance  Contempt of court, assessment of costs  Admissions, dismissal of claim(s)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 36
  37. 37. Failure to Receive a Response First contact is customarily informal, one office to the other A motion to compel is used if compliance is not forthcoming  Show good faith efforts to obtain cooperation  Can result in an order  New response date  Costs of motion assessed to the non-performing partyCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 37
  38. 38. Answers toDiscovery Requests Two copies made of requests  One working office copy  Review with attorney  Prepare preliminary answers from file material  One sent to client Client should be asked to  Answer the questions  Gather the documentsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 38
  39. 39. Preparing Answers A client interview is set  Meet & prepare initial answers  Review with attorney The client should review the final answers The attorney reviews the final draft  Makes objections to protected material  May require a motion for a protective orderCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 39
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