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Similar to Chapter 11 eleven paralegal in discovery civ lit 2
Similar to Chapter 11 eleven paralegal in discovery civ lit 2 (20)
Chapter 11 eleven paralegal in discovery civ lit 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 evidence
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 2
- 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 demands
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 3
- 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
discovery
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 4
- 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 object
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 5
- 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 fairness
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 6
- 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 discoverable
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 7
- 8. Privilege
Trammell 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. 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. 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 commercial
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 10
- 11. Work Product Doctrine
Hickman 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. 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 possession
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 12
- 13. Third-Party
Document Exception
In 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. 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 fairness
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 14
- 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. 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 compliance
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 16
- 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 admissions
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 17
- 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 settlement
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 18
- 19. Depositions
Questions asked of a witness or party
Under oath (subject to penalties for perjury)
Recorded
Stenographically
Videotaped
Audio recordings
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 19
- 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, records
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 20
- 21. Production of
Documents 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. Physical and
Mental 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 exam
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 22
- 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 trial
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 23
- 24. Sequence and
Timing 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 timetable
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 24
- 25. Federal Court Timeline
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Goldman/Hughes 25
- 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
filing
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 26
- 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 policies
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 27
- 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 opinion
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 28
- 29. Discovery of
Electronic 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. 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 policy
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 30
- 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 resolution
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 31
- 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-going
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 32
- 33. Costs of Producing
Electronic 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 costs
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 33
- 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 known
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 35
- 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. 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
party
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 37
- 38. Answers to
Discovery 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 documents
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 38
- 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 order
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 39