EVIDENTIARY LAW OF TOMORROW, TODAY!

Professionalism in Pretrial Discovery

3:45pm-4:45pm, 1 Professionalism CLE Credit Hour

Speakers:

Judge Joseph C. “Jay” Wilkinson Jr.; U.S. District Court Eastern District of Louisiana; New

Orleans, LA

Judge Tiffany Chase; Louisiana 4th Circuit Court of Appeal; New Orleans, LA

Christian C. Creed; Creed & Creed; Monroe, LA

Michael J. Mestayer; Michael J. Mestayer, APLC; New Orleans, LA

Judge Joseph C. “Jay” Wilkinson Jr.; U.S. District Court Eastern District of Louisiana; New Orleans,

LA

U.S. Magistrate Judge Joseph C. “Jay” Wilkinson Jr. has served for 24 years, since his appointment in

March 1995, as a United States Magistrate Judge for the United States District Court for the Eastern District

of Louisiana in New Orleans, where magistrate judges have principal authority and responsibility for

handling discovery matters. He has now been reappointed three times and served a four-year term as the

district’s Chief Magistrate Judge from July 2013 through July 2017. Judge Wilkinson was in private law

practice from 1982-1993 and previously served as Civil Justice Reform Act Attorney/Administrative

Assistant to the Chief Judge, United States District Court, Eastern District of Louisiana from 1994-1995.

He was law clerk to United States District Judge Morey L. Sear from 1980-82. He is a 1980 graduate of

Tulane Law School, where he served for two years on the Tulane Law Review and earned the Order of the

Coif. He earned his B.A. degree in journalism summa cum laude from Louisiana State University in 1976.

He has taught courses on Civil Procedure, the Federal Civil Rules, Litigation, and Constitutional Law on

the adjunct faculties of Tulane and Loyola Law Schools, the Tulane University College Paralegal Program,

and the Loyola University Political Science Department.

Judge Tiffany Chase; Louisiana 4th Circuit Court of Appeal; New Orleans, LA

Judge Tiffany Gautier Chase received her Bachelor of Arts degree in Philosophy from Loyola University

and her Juris Doctorate from Loyola University School of Law.

Judge Chase began her legal career as a Law Clerk at the Louisiana Supreme Court. She served as a Staff

Attorney, and then as a Research Attorney, to the Honorable Chet D. Traylor. Judge Chase also spent

several years as an Associate in the Law Firm of Martzell and Bickford. She previously served as Judge of

Division A of Civil District Court for the Parish of Orleans. On October 14, 2017, Judge Chase was elected

to the Fourth Circuit Court of Appeal where she currently serves as an Appellate Court Judge.

Christian C. Creed; Creed & Creed; Monroe, LA

Christian C. Creed is the managing partner of Creed & Creed, which is a law firm dedicated to

helping injury victims. His practice areas include personal injury litigation, admiralty law, and social

security disability. He graduated from Louisiana State University in 1985 and received his J.D. degree from

Loyola University New Orleans School of Law, where he was a member of the Moot Court Board and

Moot Court National Team.

He is a member of the Fourth Judicial District Bar Association, Louisiana Bar Association, the

American Bar Association, and all of the U.S. District Courts of Louisiana and Mississippi, and the 5th

Circuit Court of Appeals. He is also a member of Phi Delta Phi Legal Fraternity, the American

Association of Justice, and the Louisiana Association of Justice (LAJ), where he is a member of the auto

tort and admiralty law sections. He currently serves on the LAJ Executive Committee.

Michael J. Mestayer; Michael J. Mestayer, APLC; New Orleans, LA

Michael J. Mestayer is a solo practitioner who focuses his practice on admiralty, product liability, and

personal injury litigation. He graduated, magna cum laude, from L.S.U. in 1977, and received his Juris

Doctor from Tulane Law School in 1976 where he was a member of the Law Review and the Order of the

Coif.

He is a member of the New Orleans Bar Association, the Louisiana Bar Association, the American Bar

Association, all of the U.S. District Courts of Louisiana, the 5th Circuit Court of Appeals, the 10th Circuit

Court of Appeals, and the U.S. Supreme Court. He is also a member of various maritime bar associations,

the American Inns of Court, state and national trial lawyer associations, and state and national bar

foundations.

He currently serves on the board of directors for the Louisiana Bar Foundation as well as the New Orleans

Bar Association Foundation.

He is an Adjunct Assistant Professor of Law at Tulane Law School where he teaches Solo and Small Firm

Practice. He has frequently lectured on various topics concerning product liability, maritime law, trial

methods, ethics, and professionalism.

MAGISTRATE JUDGE WILKINSON’S

(CONSTANTLY EVOLVING) TOP TEN

MOST FREQUENTLY IGNORED DISCOVERY RULES

(as of May 4, 2018)

(1) Proportionality: Actual Evaluation of the Factors

Relevance is no longer the sole threshold scope standard. Discovery must also be

“proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Proportionality evaluation

requires submission to the court of specific information, sometimes in the form of evidence,

relating to the factors set out in the rule, including “importance of the issues at stake in the

action, the amount in controversy, the parties’ relative access to relevant information, the

parties’ resources, the importance of the discovery in resolving the issues, and whether the

burden or expense of the proposed discovery outweighs its likely benefit.”

(2) Burdens of Proof in Discovery Matters

What a lawyer says is not evidence. Many discovery rules impose a burden of

proof upon one party or the other, often – but not always – the moving party. Except in

the rare event that the issue is self-evident, this means your motion papers must be

supported by evidence, usually affidavits, deposition excerpts or verified documents.

Examples:

(a) Rule 26(c): Motion for protective order “for good cause.”

A party who seeks a protective order has the burden as defined in In re Terra

Int’l, Inc., 134 F.3d 302, 306 (5th Cir. 1998)(“a particular and specific

demonstration of fact as distinguished from stereotyped and conclusory

statements.”).

(b) Privilege Assertions: The party resisting discovery by asserting any

privilege bears the burden of proof sufficient to substantiate its privilege

claim and cannot rely merely on a blanket assertion of privilege. High Tech

Commc’ns, Inc. v. Panasonic Co., No. 94-1447, 1995 WL 45847, at *1 (E.D.

La. Feb. 2, 1995) (Vance, J.) (citing Hodges, Grant & Kaufman v. United

States, 768 F.2d 719, 721 (5th Cir. 1985)); In re Shell Oil Refinery, 812 F.

Supp. 658, 661 (E.D. La. 1993) (Mentz, J.).

Magistrate Judge Wilkinson’s

Top Ten (Constantly Evolving)

Most Frequently Ignored Discovery Rules

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Once the proponent has properly asserted the privilege claim

and the requisite information about the allegedly privileged

document provided to the opponent, the proponent must

substantiate all actual assertions about the claim. This is

usually done through supporting affidavits from individuals

with personal knowledge of the relevant facts, exhibits

attached to the motion and briefs, discovery responses,

pleadings and other undisputed facts. . . . To the extent that

evidentiary support for the factual basis of the privilege is not

forthcoming, the claim is little more than a bald, conclusory, or

ipse dixit assertion. The court will deny such an assertion

because it forecloses meaningful independent inquiry by the

finder of facts (the judge) into the validity of the claim. . . .

Although an attorney’s word may be “taken on its face,” a

privilege claim is not self-executing. It requires more proof

than a conclusion by the party asserting the claim (or his

attorney) that it is justified.

P. Rice, Attorney-Client Privilege in the United States § 11:10 at 977-80

(Lawyers Cooperative 1993) (emphasis added).

(c) Rule 26(b)(3)(A): “Ordinarily, a party may not discover documents and

tangible things that are prepared in anticipation of litigation or for trial . . . .

But, . . . those materials may be discovered if . . . . the party shows that it has

substantial need for the materials to prepare its case and cannot, without

undue hardship, obtain the substantial equivalent by other means.”

(d) Rule 26(b)(2)(B) -- Electronically Stored Information:

“A party need not provide discovery of electronically stored information

from sources that the party identifies as not reasonably accessible because of

undue burden or cost. On motion to compel discovery or for a protective

order, the party from whom discovery is sought must show that the

information is not reasonably accessible because of undue burden or cost. If

that showing is made, the court may nonetheless order discovery from such

sources if the requesting party shows good cause, considering the limitations

Magistrate Judge Wilkinson’s

Top Ten (Constantly Evolving)

Most Frequently Ignored Discovery Rules

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of Rule 26(b)(2)(C). The court may specify conditions for the discovery.”

(emphasis added).

(e) Proportionality factors: See above.

(3) Written Responses to Requests for Production

It is not sufficient to respond to a request for production simply by producing to the

requesting party a pile of responsive materials. “The party to whom the request is directed

must respond in writing . . . . For each item or category, the response must either state that

inspection and related activities will be permitted as requested or state with specificity the

grounds for objecting to the request, including the reasons. . . . An objection must state

whether any responsive materials are being withheld on the basis of that objection. An

objection to part of a request must specify the part and permit inspection of the rest.” Fed.

R. Civ. P. 34(b)(2)(A), (B) and (C)(emphasis added). Failure to assert objections in a timely

written response results in waiver of the objections. See Poulos v. Naas Foods, Inc., 959

F.2d 69, 74 (7th Cir. 1992) (party "waived any objection to production by failing to object

when disclosure was due"); Marx v. Kelly, Hart & Hallman, P.C., 929 F.2d 8, 10, 12-13

(1st Cir. 1991) (objections to requests for production were waived by failure to make timely

objections); In re United States, 864 F.2d 1153, 1156 (5th Cir. 1989) ("[A]s a general rule,

when a party fails to object timely to interrogatories, production requests, or other

discovery efforts, objections thereto are waived.").

Can you see from the language of the rule why a written response that merely says

“see attached” does not comply

with Rule 34(b)?

(4) Do Not Ignore the Application of Rule 16

Where the court has entered a scheduling order setting deadlines, the schedule “may

be modified only for good cause.” Fed. R. Civ. P. 16(b)(4). This includes deadlines to

complete discovery and disclosures and to amend pleadings. “Rule 16(b) governs

amendment of pleadings after a scheduling order deadline has expired. Only upon the

movant’s demonstration of good cause to modify the scheduling order will the more liberal

standard of Rule 15(a) apply to the district court’s decision to grant or deny leave.” S&W

Enters., L.L.C. v. South Trust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003). In

Magistrate Judge Wilkinson’s

Top Ten (Constantly Evolving)

Most Frequently Ignored Discovery Rules

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determining “good cause” in connection with a Rule 16 scheduling order, the court must

weigh the following factors: (1) the explanation for the failure to comply; (2) the

importance of the matters that are the subject of the order; (3) potential prejudice in

allowing the requested action; and (4) the availability of a continuance to cure such

prejudice. Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 324 (5th Cir.

1998), and Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996, 100-01 (5th Cir.

1998) (deadline for expert disclosures); Southwestern Bell Tel. Co. v. City of El Paso,

346 F.3d 541, 546 (5th Cir. 2003) (deadline for amending pleadings). See Paz v. Brush

Engineered Materials, Inc., 555 F.3d 383, 390 (5th Cir. 2009) (application of Rule 16 four-

factor test to discovery orders).

(5) Rule 26(b)(2)(C) Limits on Discovery:

“On motion or on its own, the court must limit the frequency or extent of discovery

otherwise allowed by these rules or by local rule if it determines that: (i) the discovery

sought is unreasonably cumulative or duplicative, or can be obtained from some other

source that is more convenient, less burdensome, or less expensive; (ii) the party seeking

discovery has had ample opportunity to obtain the information by discovery in the action;

or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).”

(6) Monetary Awards for Late Discovery Responses: Rule 37(a)(5)(A)

“If the motion [to compel discovery responses] is granted – or if the disclosure or

requested discovery is provided after the motion was filed -- the court must, after giving

an opportunity to be heard, require the party or deponent whose conduct necessitated the

motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable

expenses incurred in making the motion, including attorney’s fees.” The court must not

order this payment if the opposing party’s failure was “substantially justified; or other

circumstances make an award of expenses unjust.”

Do not delay responding to discovery until after you receive a motion to compel.

(7) Rule 30(c)(2) Restrictions on Deposition Objections

Magistrate Judge Wilkinson’s

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“Any objection [at a deposition] must be stated concisely and in a non-

argumentative and non-suggestive manner. A person may instruct a deponent not to

answer only when necessary to preserve a privilege, to enforce a limitation ordered by the

court, or to present a motion under Rule 30(d)(3)” for a protective order on grounds that

the examination is being conducted in “bad faith or in a manner that unreasonably annoys,

embarrasses, or oppresses the deponent or party.”

No coaching allowed via argument or objections during depositions.

(8) Rule 26(b)(5)(A) Privilege Log

“When a party withholds information otherwise discoverable by claiming that the

information is privileged or subject to protection as trial-preparation material, the party

must (i) expressly make the claim; and (ii) describe the nature of the documents,

communications, or tangible things not produced or disclosed – and do so in a manner that,

without revealing information itself privileged or protected, will enable other parties to

assess the claim.” (Emphasis added).

Failure timely to provide the privilege log may result in waiver of privileges.

Nagele v. Electronic Data Sys. Corp., 193 F.R.D. 94, 108 (W.D.N.Y. 2000); Bordonaro v.

Union Carbide Corp., No. 93-3355, 1995 WL 234545, at *2 (E.D. La. April 20, 1995)

(Duval, J.); Burns v. Imagine Films Entertainment, Inc., 164 F.R.D. 589, 594 (W.D.N.Y.

1996); Massachusetts School of Law at Andover, Inc. v. American Bar Ass’n, 914 F. Supp.

1172, 1178 (E.D. Pa. 1996).

(9) There is No Automatic Sequestration of Witnesses at Depositions

As the Fifth Circuit explained in In re Terra Int’l, Inc., 134 F.3d 302, 306 (5th Cir.

1998), the sequestration rule does not apply to depositions. “The examination and cross-

examination of a deponent proceed as they would at trial under the Federal Rules of

Evidence, except . . . Rules 103 [rulings on objections] and 615 [sequestration of

witnesses].” Fed. R. Civ. P. 30(c)(1). To have witnesses or other persons excluded from a

deposition, a party must move for a protective order under Rule 26(c)(1) and make the

required showing of “good cause.” The requirement “of a showing of good cause to support

Magistrate Judge Wilkinson’s

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the issuance of a protective order indicates that ‘[t]he burden is upon the movant to show

the necessity of its issuance, which contemplates a particular and specific demonstration

of fact as distinguished from stereotyped and conclusory statements.’” In re Terra Int’l,

Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323,

1326 n.3 (5th Cir. 1978)); see also United States v. Talco Contractors, Inc., 153 F.R.D.

501, 513 (W.D.N.Y. 1994) (“Good cause must be established and not merely alleged.”).

(10) Rule 33(b) Verification for Interrogatory Answers

“(1) The interrogatories must be answered: (A) by the party to whom they are

directed; or (B) if that party is a public or private corporation, a partnership, an association,

or a governmental agency, by any officer or agent, who must furnish the information

available to the party. . . . (3) Each interrogatory must, to the extent it is not objected to, be

answered separately and fully in writing under oath.”

The lawyer’s signature alone is not sufficient.

Joseph C. Wilkinson, Jr.

United States Magistrate Judge

May 4, 2018

WHERE HAS CIVILITY GONE? – Professionalism & Civility in Pretrial Practice

– A View From Inside [Attorneys] You’re sitting in your office and you receive a frantic call from your best client. They have been sued, he just got back from a three-week vacation, and his staff just handed him the petition that says an answer is due tomorrow. What do you do? What should you do? Most lawyers today would rush off to court to file a motion for an extension of time to respond, charge their client for the rush work needed for that action, and then move on. Why is that necessary? Shouldn’t you be able to simply call the plaintiff’s attorney, explain the circumstance, and get an informal extension of time? That way, you save time, effort, legal fees, and the headache of rearranging your schedule to meet a client’s need. Unfortunately, the practice of law has gotten away from the professional courtesies that were once commonplace and are too seldom seen anymore. And that’s a bad omen. But what about the lack of evidence to support your position when the plaintiff’s attorney file for a preliminary default against your client? How do you explain that to your client? First, you are fully protected if you simply confirm the information extension by email, letter, or fax. Second, any plaintiff’s attorney who takes such action after granting an informal extension will be labeled appropriately by the district court and the preliminary default summarily overturned. Third, unless the plaintiff’s attorney voluntarily dismisses the preliminary default when asked, the district court could, and should, grant attorney’s fees for your action in setting the record straight. All of this reflects the monumental waste of time for both litigants, their clients, and the court. Simple professional courtesies should make this scenario as rare as succeeding on talent alone. As litigants, we as a profession have forgotten how to speak to each other. When your client gets sued, call the other attorney, introduce yourself if necessary, and pledge to work as a professional to make the process run smoothly. When your opponent is late in responding to discovery, give her a call before setting a discovery conference. Maybe there is a legitimate

excuse other than being over-worked. When you have a motion that you plan to file, call your opponent and let them know that you are planning to file. Make sure that the dates chosen do not conflict with their schedule. Otherwise, they will have the added expense, and the court the added burden, of moving the matter to a different date. Giving your opponent the least amount of time to respond might seem like a distinct advantage, but when you are on the other end of that tactic, don’t forget that the world turns. When you are trying to schedule depositions, call your opponent and discuss so that you can coordinate dates, times, and perhaps travel plans. If the travel entails out of town or out of state adventures, share a car. Share a meal. Share a drink. There is nothing wrong with socializing with your opponent. After all, he or she is not your real opponent - their client. To be more precise, your client is their client’s opponent. You are simply the means to civilly conduct that battle. When you are trying to prepare for pretrial, work together. There is no trial by ambush anymore, so utilize a little common courtesy, decency, and understanding. – A View From Outside [Judges] From a judge’s perspective, professionalism in pretrial practice basically boils down to the three “C’s.” They are (1) civility, (2) candor and (3) competence. You might not think that this kind of list would stir up any controversy, but it seems that the first two sometimes do: (1) Civility – Civility as a component concept of professionalism has been incorporated in several bar and judicial codes on the subject, including - the Louisiana State Bar Association Code of Professionalism, providing, among other things, that a lawyer will “conduct myself with dignity, civility, courtesy and a sense of fair play.” - the New Orleans Bar Association Code of Civility, requiring, among other things, that “lawyers should treat each other, the opposing party, the court and the members of the court staff with courtesy and civility” and “should not engage in discourtesies or offensive conduct . . .”

- a list of judges’ duties, expressed in a publication called “Vision of Fairness,” stating, among other things, that judges “will maintain control of the proceedings, . . . not employ hostile, demeaning or humiliating words in opinions, . . . be punctual in convening all hearings, . . . decide promptly all matters presented to us for decision, and abstain from disparaging personal remarks or criticisms, or sarcastic or demeaning comments . . .” – Frankly, we have to constantly remind ourselves of these things, recognizing that we, too, often fall short and that we do not always see ourselves as the most civil of judges. We do not relish the role we are sometimes placed in as “behavior policeman” or as one lawyer once noted, “kindergarten playground monitor.” – Dissenters: Not all in the profession agree on the importance of civility. Digest the following two comments minimizing the concept of civility as a component of professionalism: – Professor Roger Cramton of the Cornell Law School, who described civility as one of the “four false faces of professionalism masquerad(ing) as the real thing by treating a modest concern as the heart of the subject. . . . Civility, of course, is a good thing; . . . however [it] is not the core to the enterprise,” which instead is “competent performance by lawyers.” R. Cramton, Keynote Address at Symposium Proceedings, October 2-4, 1996, published in Teaching and Learning Professionalism at p. 14 (American Bar Association 1996). – Shawn Collins, Naperville, Illinois, litigator: “I’m a trial lawyer. If you’re my opponent, I don’t care if you like me, or find me witty or engaging. We’re not going out to dinner. We are not friends. All you really need to know about me is this: I’ll beat you if there’s any way the rules will let me. . . . So I get annoyed, and sometimes genuinely infuriated, at these self-anointed ‘civility’ police who lately have pitched their tents at our local bar associations. Seemingly every lawyers’ group in America now has a ‘civility’ committee, . . . scolding their fellow practitioners into the belief that our highest duty is no longer to win for our clients, but rather to be nice to our adversaries. . . For my money, many of these civility committees are just stalking horses for legal wimpery.” S. Collins, “Be Civil? I’m a Litigator,” Podium, The National Law Journal (Sept. 20, 1999). (2) Candor

– Some (apparently like Mr. Collins) might see candor in the conduct of pretrial practice as so in conflict with the zealous representation concept that they simply will not be candid. As judges, we can be so brutally candid that it frequently keeps us from being sufficiently civil. Ideally, discovery is supposed to be operated by lawyers “on a self-regulating basis” with substantial court supervision prompted only if “the spirit of the rules is violated when advocates attempt to use discovery tools as tactical weapons . . . by overuse of discovery or unnecessary use of defensive weapons or evasive responses . . . . If primary responsibility for conducting discovery is to continue to rest with the litigants, they must be obliged to act responsibly and avoid abuse.” Official Advisory Committee Notes to 1983 Amendments to Federal Rules of Civil Procedure, quoted in Federal Judicial Procedure and Rules at pp. 141-42 (Thomson Reuters 2018 rev. ed.). – Candor – which in some ways is just another way of saying honesty, without chest-beating or brow-beating – is vital to accomplishing these goals, to the proper and professional conduct of discovery in civil litigation and to the search for truth that litigation should be. The Rules as now structured put a premium on lawyer honesty, candor and good conduct, especially in discovery. For example, – Fed. R. Civ. P. 26(g): Any discovery request and response must be certified by counsel to have been, among other things, “formed after a reasonable inquiry . . . complete and correct as of the time it is made; and . . . not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” See La. Code Civ. P. art. 1420. – Fed. R. Civ. P. 26(c)(1) and 37(a)(1): Motions to compel discovery responses and for protective orders concerning discovery requests may be filed only with counsel’s “certification that the movant has in good faith conferred or attempted to confer” with the other parties in an effort to resolve their dispute without court action. See La. Code Civ. P. arts. 1469, 1426. – “Proportionality” rules, Fed. R. Civ. P. 26(b)(1) and (2): “What [these] require is, at heart, very simple: good faith and common sense. Counsel can satisfy these requirements by not using or responding to discovery for some ulterior purpose and by exercising straight forward judgment. The questions are simply stated: 1) what information am I really likely to need and 2) what is the

most cost effective way to get it. Tailoring probes and responses to the real issues in the case at hand, rather than relying on questions or knee jerk objections and evasive responses, is all that is required.” In re Convergent Technologies Secs. Litigation, 108 F.R.D. 328, 331 (N.D. Cal. 1985)(Brazil, M.J.). See La. Code Civ. P. art. (court may issue a protective order to protect a party from "undue burden or expense") – Deposition conduct. Fed. R. Civ. P. 30(c)(2) and (3): “An objection must be stated in a nonargumentative and nonsuggestive manner.” Deposition questioning that “unreasonably annoys, embarrasses, or oppresses the deponent or party” subjects the examiner to termination of the deposition and sanctions. See La. Code Civ. P. art. 1443. (3) Competence – The idea that lawyers must perform with competence probably presents the least controversy concerning its inclusion in any definition of professionalism. Professor Cramton, quoted above, certainly feels it is the most important aspect of professionalism. As you may have noted from the discussion above concerning candor, competence as an element of professionalism in discovery can be boiled down to one simple precept:

KNOW THE RULES INTIMATELY AND FOLLOW THEM. A few examples, in addition to those cited above and in the attachment, include: – Do not marry yourself to your historic form file of discovery requests and written responses. The rules may require something different than what you have always done. One size does not fit all. Tailor your interrogatories and requests for production to the needs of your particular case and the applicable rules. You would be surprised to know how many times we have received and denied motions to compel answers to interrogatories, when the served set of interrogatories exceeds the federal limit of 25 without having first received leave of court to exceed the limit. Fed. R. Civ. P. 33(a)(1); see La. Code Civ. P. art. 1457 (Louisiana limit is 35). – Ditch your perfunctory boilerplate objections that do not explain why a request is overly burdensome or unduly broad. “State with specificity the grounds for objecting to the request, including the reasons.” Fed. R. Civ. 34(b)(2)(B); see La. Code Civ. P. art. 1462.

– Throw away your form notice of deposition that provides for less than 14 days’ notice, a period described as “short notice” under Fed. R. Civ. P. 32(a)(5)(A) and which exposes you to the risk of not being able to use that deposition in court filings or hearings. See La. Code Civ. P. art. 1438 (Louisiana law requires "reasonable notice" and does not set a hard and fast deadline). – For more excruciating detail on the KNOW THE RULES AND FOLLOW THEM component of professionalism in discovery, attached is our almost famous “Top Ten (10) Most Frequently Ignored Discovery Rules” list. The list focuses on federal discovery practice, but many items on the list have their equivalents in Louisiana state practice. They are ordered from top to bottom to reflect those that require a great deal of professionalism in their application.