Chapter 13 thirteen interrogatories and requests for production
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Chapter 13 thirteen interrogatories and requests for production

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  • 1. Civil Litigation: Process and Procedures Chapter ThirteenInterrogatories and Requests for Production
  • 2. Interrogatories and Requests for Production  The two most frequently used discovery devices  Written requests for information  Addressed only to parties, not witnesses  The basis for other investigation, additional discovery requestsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 2
  • 3. Interrogatories A formal request for answers to written questions Answers are made under oath, signed by the client/party  Subject to perjury laws  Can be used for impeachment at trial Protected information generates an objection, rather than an answer  Usually privilege or work product  Attorney must sign (ratify) an objectionCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 3
  • 4. Requests for Production Federal Rule 34 – Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes Moveable items and documents must be furnished upon receiving the discovery request Non-moveable items (e.g., real property, large equipment) can be inspected on-site (entry) Requests for protected material should generate an objectionCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 4
  • 5. Request forProduction – Non-Parties Although the discovery tool is not available, non-parties may be asked to produce documents or permit inspection The request comes in the form of a subpoena duces tecum This may also command an appearance at a hearing, deposition or trialCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 5
  • 6. Subpoena ona Non-PartyCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 6
  • 7. Discovery Document Format Similar to pleadings  Caption  Identification of the document  Introductory paragraph  Party serving it  Action required of the recipient  List of definitions  Body  Attorney’s signature  Certification of service  Verification of the party (answer)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 7
  • 8. Body of the Document In interrogatories, written questions In requests for productions  List of documents  List of physical objects  Proposed arrangements for inspection, right of entryCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 8
  • 9. Time-Frame  Some preliminary information is required “up- front”  A meet-and-confer will set out the timeline  The faster the discovery is completed, the greater the time available for settlement prior to trial  Deadlines may be extended  In initial discovery plan  By stipulation between the attorneys  By order of the court, with good causeCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 9
  • 10. Drafting Interrogatories Largest source of objections during discovery Court may limit the number of objections Used to obtain information controlled by the other party In addition to 25 initial questions, there will be initial disclosures under federal rules which will eliminate some areas of inquiryCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 10
  • 11. Drafting Based on an analysis of the claims, proof needed, and possible defenses May be modeled on forms for simple cases (form books, form files) In complex cases, may be designed to lead to additional avenues of investigationCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 11
  • 12. Claims, Defenses, Issues Review the complaint, any motions Review or research the elements needed to prove the claims Review the defenses outlined in the answer Review the preliminary material provided under Fed. Rule 26Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 12
  • 13. Proof  What will need to be produced to prove the client’s claim or defense?  Identity of witnesses  Documentary evidence  Physical evidence  Inspection or testing required for expert analysis  As a matter of strategy, some questions will be reserved for depositions (more spontaneous responses)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 13
  • 14. Preparing Interrogatories Writing  Review pleadings and prepare a list of claims & defenses  Review or research the necessary elements  Review initial disclosures made under Rule 26(a)  Identify areas with a lack of supporting information Service  Set of interrogatories should be sent to opposing counsel(s), if that party is representedCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 14
  • 15. Reminders Never directly contact a party who is represented by counsel Be sure to calendar (docket or tickle) the expected due date for answers If responding to interrogatories, be sure to calendar the necessary reminders as well as the due date If the due date passes without response, a motion to compel may need to be preparedCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 15
  • 16. Responding to Interrogatories Make 2 working copies Review with attorney to identify any objections Send a copy to the client & schedule a meeting Review all case information Meet with the client, draft responses Review draft responses with attorney, amend as necessary Meet with client for verification of final answers Be sure response is received before due dateCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 16
  • 17. Objectionable Questions The attorney will object to questions that should not be answered  Seek information protected by  Privilege  Work product doctrine  Trade secrets exception  Duplicative or under control of the requesting party  Vague, overly broad, burdensome (can narrow)  Unlikely to lead to admissible evidenceCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 17
  • 18. Narrowing the ScopeCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 18
  • 19. Motion for a Protective Order The requesting party may accept the objection coupled with a narrower answer If not, a motion for protective order will be filed with the court at the same time answers are served on the opposing attorney The judge will sustain or overrule the objectionCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 19
  • 20. Discrepancies If the client information differs from that contained in the file  May be a faulty memory  May be a change in facts that could affect a claim or defense  Must be brought to the attention of the lead attorney as soon as possible The client signs under penalty of perjuryCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 20
  • 21. Certificate of ServiceCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 21
  • 22. Reviewing Answers Check to see that all have been addressed  Answered fully  Objected to If a motion for a protective order has been filed, calendar (tickle) it with adequate reminders for preparation Analyze answers to discover any follow-up required by requests for production or depositionCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 22
  • 23. Preparing aRequest for Documents Integrate information from interrogatories into case file, and re-analyze the claims, elements & defenses Request any documents revealed in the previous discovery requests (remembering that the order of discovery is a strategy issue)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 23
  • 24. A Request for ProductionCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 24
  • 25. Responding toRequests for Production  Each document requested must be reviewed by the attorney for possible objections, including relevance  Be sure the documents are numbered  Each request MUST be answered, with the document requested or an objection  If the production of documents is unduly burdensome, the requesting party may be permitted to review & copy the pertinent documentsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 25
  • 26. Retrieving Documents Paralegals may do manual reviewing & copying of documents The material requested may be in electronic format for litigation support (or document management) software to search The material may be scanned from hard copy for the same purposeCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 26
  • 27. Reviewing Responses Every request should have an answer Be sure the documents requested are actually provided If there are objections, the attorney must determine whether to accede to the objection or defend the protective order request If there is no response, a motion to compel may be neededCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 27
  • 28. Meet and Confer Before the initial scheduling conference with the judge – Rule 26(f) Try to stipulate to  Timelines  Formats of electronic documents required  “Claw-back” provisions, etc. Reported back to the judge for use at the scheduling conferenceCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 28
  • 29. E-Discovery Questionsfor the Client’s Business Who manages the computers/network? What programs/software are used? What are the e-mail IM provisions? How are documents created, transmitted, stored? What is the back-up system? Who in the company has access/administrative rights? Who outside the company has access? What is the security system? Who performs maintenance & repair? What is the document retention, archiving & destruction policy?Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 29
  • 30. E-Discovery Considerations Native format or TIFF/PDF? Metadata? Cost of retrieving  Destroyed or corrupted files  Files stored on obsolete devices Client’s retention policy (litigation hold) “Claw-back” provisionsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 30