Chapter 11 eleven paralegal in discovery civ lit 2

Civil Litigation:
Process and Procedures

Chapter Eleven
The Paralegal In Discovery

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

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
Goldman/Hughes 3

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

Goldman/Hughes 4

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

Goldman/Hughes 5

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

Goldman/Hughes 6

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

Goldman/Hughes 7

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.”

Goldman/Hughes 8

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)

Goldman/Hughes 9

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

Goldman/Hughes 10

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.’”

Goldman/Hughes 11

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

Goldman/Hughes 12

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.”

Goldman/Hughes 13

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

Goldman/Hughes 14

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.”

Goldman/Hughes 15

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

Goldman/Hughes 16

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

Goldman/Hughes 17

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

Goldman/Hughes 18

Depositions
 Questions asked of a witness or party
 Under oath (subject to penalties for perjury)
 Recorded
 Stenographically
 Videotaped
 Audio recordings

Goldman/Hughes 19

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

Goldman/Hughes 20

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)

Goldman/Hughes 21

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

Goldman/Hughes 22

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

Goldman/Hughes 23

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

Goldman/Hughes 24

Federal Court Timeline

Goldman/Hughes 25

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

Goldman/Hughes 26

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

Goldman/Hughes 27

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

Goldman/Hughes 28

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)

Goldman/Hughes 29

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
Goldman/Hughes 30

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

Goldman/Hughes 31

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

Goldman/Hughes 32

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

Goldman/Hughes 33

Sample Clause

Goldman/Hughes 34

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

Goldman/Hughes 35

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)

Goldman/Hughes 36

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

Goldman/Hughes 37

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

Goldman/Hughes 38

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

Goldman/Hughes 39

Chapter 11 eleven paralegal in discovery civ lit 2

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