Chapter 11 eleven paralegal in discovery civ lit 2

Civil Litigation:Process and Procedures

Chapter ElevenThe Paralegal In Discovery

Civil Litigation: Process and Procedures Goldman/Hughes

© 2009 Pearson Education, Upper Saddle River, NJ 07458.

All Rights Reserved.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




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




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




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




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




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




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.”




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)




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




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.’”




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




Third-Party Document 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.”




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




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.”




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




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




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




Depositions Questions asked of a witness or party

Under oath (subject to penalties for perjury)

Recorded Stenographically Videotaped Audio recordings




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




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)




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




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




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




Federal Court Timeline




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




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




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




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)




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




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




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




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




Sample Clause




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




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)




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




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




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