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Production of Documents/Inspection of “things”
February 16, 2011
Advanced Civil Litigation
Agenda
Deposition assignment Document production/ Inspection of “things”
General overview under Federal and California rules
Paralegal role Preparing for later discovery Procedures for making request or demand Compliance procedures
Documents in possession of third parties
Requesting Documents and Other Tangible Evidence
CCP 2031: Allows inspection of things in control of a party by making a demand/request
Fed. Rules Civ. Proc. 34—similar to state rule
CCP 2031/ FRCP 34
RELATES TO ITEMS IN POSSESSION, CUSTODY OR CONTROL OF PARTY
INSPECTION (COPY) OF DOCUMENTS INSPECTION OF TANGIBLE THINGS INSPECTION OF LAND
Document Production: “The Smoking Gun”
Larry Ellison job harassment case
Why it is important
Special problems with ESI
Paralegal Role—document production
Organize documents prior to requests Help draft documents for request Help locate and produce documents that are
requested Monitor for privileged documents Maintain privilege log Maintain production log
Review—Do you remember other ways to obtain Documents in possession of a party?
Documents in possession of a third person?
Public documents?
The Way Document Production Works
One party requests documents from other party
Requests must be fairly specific: All documents sent to Laura Cross after
1/1/2009 All documents written by Laura Cross after…. All documents dealing with the IVP procedure
of Leo Bradshaw
Another example:
REQUEST FOR PRODUCTION NO. 5: Please produce each and every document, if any, containing notes of any conversation during which was mentioned any one or more of the following individuals:
a. Paula Jones; b. Frank Tappin; c. Larry Patterson; d. Roger Perry; e. Danny Ferguson; f. Ronnie Anderson; g. Pamela Blackard; h. Debra Ballentine; i. Raymond L. "Buddy" Young.
Before you begin
A lawsuit involves 1 million documents. How do you find specific requested documents?
Document Coding See page 338 in text for database fields
“Predictive Coding” Read article on Web site
Let’s Try It
CCP 2031.010 et seq.
Demand to produce/inspect/photograph/ test or sample : Documents Photos Any tangible thing
In custody, control of possession of a party
INSPECTION UNDER 2031
INSPECT PHOTOGRAPH TEST SAMPLE COPY MEASURE SURVEY BY PARTY OR REPRESENTATIVE
The Documents:DEMAND FOR PRODUCTION FIRST PARAGRAPH: DEMANDING PARTY,
SET NUMBER AND RESPONSIDNG PARTY
EACH DEMAND IN A SET TO BE SEPARTELY NUMBERED
DEMAND FOR PRODUCTION (C0NT) DOCUMENTS OR ITEMS TO BE
SPECIFICALLY DESCRIBED BY ITEM OR CATEGORY
SPECIFY REASONABLE TIME FOR INSPECTION AT LEAST 30 DAYS IN FUTURE
DEMAND FOR PRODUCTION (CONT) SPECIFY PLACE FOR INSPECTION
SPECIFY ANY RELATED ACTIVITY (I.E. TEST)
SERVE ON ALL PARTIES
Let’s take a look
http://www.scefiling.org/filingdocs/215/4790/7131e_ExxDxtoxDCL.pdf
(Santa Clara County Efiling Website—document 720 Antelope Valley Cases)
RESPONSE TO DEMAND
MOTION FOR PROTECTIVE ORDER WRITTEN RESPONS
AGREE TO COMPLY OBJECT STATEMENT OF INABILITY TO COMPLY RESPOND TO EACH ITEM SIGNED BY PARTY UNDER OATH SERVED WITHIN 20 DAYS OF SERVICE
Let’s take a look
Antelope Valley cases document 694, 688 and 345
FAILURE TO FILE WRITTEN RESPONSE WAIVER OF OBJECTIONS
RELIEVED BY MOTION
DEMANDING PARTY MAKES MOTION TO COMPEL (AFTER MEET AND CONFER)
MOTION TO COMPEL FURTHER RESPONSE CONTESTS OBJECTIONS OR STATEMENT
OF INABILITY TO PRODUCE
MADE WITHIN 45 DAYS OF SERVICE OF WRITTEN RESPONSE
MOTION FOR COMPLIANCE
MADE AS A RESULT OF FAILURE TO ACTUALLY PRODUCE
The Production
Documents Hire businesses to do this (i.e. Cook and
Assoc.) Set up time and place for inspection an
copying
Practical Aspects of Document Production: Producing Party Organize documents Read and identify documents Code documents Create privilege log
Documents in custody of Non-party
Depostion of Records
Why a deposition?
Only discovery allowed against non-party
Nature of this deposition Not a traditional depo
DEPOSITION OF BUSINESS RECORDS-- CCP 2020.020 et seq. RECORDS NOT IN POSSESSION OF PARTY DEPOSITION SUBPOENA (JC Form Subp-010 COMPLIANCE NO EARLIER THAN 20 DAYS
AFTER ISSUANCE OR 15 DAYS AFTER SERVICE WHICHEVER IS LATER Also must comply with consumer records requirement
NO DECLARATION OF GOOD CAUSE REQUIRED
DEPOSITION OFFICER
PROFESSIONAL, REGISTERED PHOTOCOPIER
NO FINANCIAL INTEREST IN MATTER
DELIVERY OF RECORDS
MADE EITHER AT PLACE OF DEPO OFFICER OR
INSPECTION TAKES PLACE AT OFFICE OF BUSINESS WHOSE RECORDS ARE SOUGHT
DELIVERY OF RECORDS, cont
COMPLY WITH REQUIREMENTS OF EVIDENCE CODE 1560 THROUGH 1563
COMPLY WITH REQUIREMENTS OF NOTICE TO CONSUMER
EVIDENCE CODE 1560-63
CUSTODIAN CAN DELIVER COPY TO DEPO OFFICER WITH PROPER AFFIDAVIT
DEMANDING PARTY MUST PAY FOR COPIES (COST PER PAGE AND PER HOUR FOR PERSON COPYING)
CCP 1985.3--NOTICE TO CONSUMER REQUIRED PRIOR TO DATE FOR
PRODUCTION
SERVED AT LEAST 10 DAYS PRIOR TO PRODUCTION AND 5 DAYS PRIOR TO SERVICE ON CUSTODIAN
Putting it into practice:
You want a party’s school records—what are your timing and service requirements?
It’s February 16 and your attorney says to get them as soon as possible: Subpoena Requirements
Consumer record requirements