Teaching Basic Civil Discovery in a Workshop

Setting

Presented byPresented byEric Nakano,Eric Nakano,

Voluntary Legal Services Program Voluntary Legal Services Program of Northern California of Northern California

Our First Year of Civil Self-HelpOur First Year of Civil Self-Help

Most customers were defendants in Most customers were defendants in collection cases.collection cases.

Almost all of the defendants we saw were Almost all of the defendants we saw were up against opposing counsel.up against opposing counsel.

Almost every customer had received Almost every customer had received discovery requests from the opposing discovery requests from the opposing counsel.counsel.

Very few customers replied to the Very few customers replied to the discovery requests. Many lost their cases discovery requests. Many lost their cases as a result.as a result.

Lessons of the First Year:Lessons of the First Year:

Very few customers remembered being Very few customers remembered being told about the discovery process when told about the discovery process when being assisted with their Answer or being assisted with their Answer or Complaint.Complaint.

Very few customers read the handouts Very few customers read the handouts and other materials about discovery that and other materials about discovery that were provided or suggested.were provided or suggested.

Discovery is one of the most difficult Discovery is one of the most difficult procedural concepts for self-represented procedural concepts for self-represented litigants because there is almost nothing litigants because there is almost nothing in popular culture to prepare them for it.in popular culture to prepare them for it.

Workshop GoalsWorkshop Goals

Self-represented litigants should leave Self-represented litigants should leave knowing:knowing: What discovery is, and how to recognize What discovery is, and how to recognize

discovery requests;discovery requests; The basic flow of discovery;The basic flow of discovery; The fundamentals of Requests for The fundamentals of Requests for

Admissions, Interrogatories (Form and Admissions, Interrogatories (Form and Special), and Requests for Special), and Requests for Production/Demands for Inspection.Production/Demands for Inspection.

Where they can find additional Where they can find additional information.information.

Starting the WorkshopStarting the Workshop

General overview General overview of the discovery of the discovery processprocess

Introductory concept: Scope of Introductory concept: Scope of DiscoveryDiscovery

““Reasonably Reasonably calculated to lead calculated to lead to the discovery to the discovery or relevant or relevant admissible admissible evidence.” evidence.” (fishing analogy)(fishing analogy)

Concept of Concept of privilege should privilege should be introduced.be introduced.

SuggestionsSuggestions

Be sure the customers know, as early as Be sure the customers know, as early as possible, that all sides in a lawsuit can use possible, that all sides in a lawsuit can use discovery to get evidence from any other discovery to get evidence from any other party.party.

It is better if customers attend the It is better if customers attend the workshop before they receive discovery workshop before they receive discovery requests.requests.

Have fun. This is a long workshop. Have fun. This is a long workshop. Anything that keeps customers attention Anything that keeps customers attention and aids in retention is good.and aids in retention is good.

Request for AdmissionsRequest for Admissions

These are the These are the most lethal form most lethal form of written of written discovery to self-discovery to self-represented represented litigants.litigants.

Disc-020 is an Disc-020 is an optional form.optional form.

Admissions Key ConceptsAdmissions Key Concepts

PurposePurpose DeadlineDeadline Effect of non-responseEffect of non-response All requests must be for a single fact All requests must be for a single fact

that can be answered "Admit" or that can be answered "Admit" or "Deny""Deny"

Request for AdmissionsRequest for Admissions The caption is just The caption is just

what you’d expect.what you’d expect. The concept of the The concept of the

“Asking” or “Asking” or “Propounding” party “Propounding” party can be re-iterated.can be re-iterated.

The middle signature The middle signature line is part of the line is part of the instructions.instructions.

Attachment 1 and 2Attachment 1 and 2

Suggest that each Suggest that each request be request be prefaced by “Admit prefaced by “Admit that”that”

Only one fact can Only one fact can be in each be in each admission. Look admission. Look out for “and” “or” out for “and” “or” periods, periods, semicolons, etc.semicolons, etc.

Responding to Request for Responding to Request for AdmissionsAdmissions

Introduction to the Introduction to the caption on caption on pleading papers.pleading papers.

Possible responses:Possible responses: AdmitAdmit DenyDeny Unable to admit or Unable to admit or

denydeny ObjectionObjection

VerificationVerification

Interrogatory Key ConceptsInterrogatory Key Concepts

PurposePurpose DeadlineDeadline Effect of non-responseEffect of non-response Interrogatories are either Form Interrogatories are either Form

Interrogatories or Special Interrogatories or Special InterrogatoriesInterrogatories

Form InterrogatoriesForm Interrogatories OverviewOverview Completing the formsCompleting the forms

CaptionCaption Signature line is part Signature line is part

of instructions, so is of instructions, so is not signednot signed

Definition of INCIDENTDefinition of INCIDENT x.0 items are x.0 items are

headings, not headings, not questionsquestions

15.1 and 17.1 are 15.1 and 17.1 are particularly particularly useful/difficultuseful/difficult

Responding to Form Responding to Form InterrogatoriesInterrogatories

Typically on Typically on pleading paperpleading paper

Numbered and Numbered and answered in the answered in the order askedorder asked

VerifiedVerified

Special InterrogatoriesSpecial Interrogatories

Typical pleading Typical pleading captioncaption

Multiple “right ways” Multiple “right ways” to format/phraseto format/phrase

Words in all capitals Words in all capitals specially definedspecially defined

Can be used to Can be used to replicate Form replicate Form Interrogatory 15.1 Interrogatory 15.1 and 17.1 in limited and 17.1 in limited civil casescivil cases

Responding to Special Responding to Special InterrogatoriesInterrogatories

Format is identical to Format is identical to responding to Form responding to Form Interrogatories, Interrogatories, except for the except for the numbering sequencenumbering sequence

Numbering errors in Numbering errors in Special Special Interrogatories is Interrogatories is common but not a common but not a problem when problem when answeringanswering

VerifiedVerified

Request for ProductionRequest for Production

This is one of the This is one of the more difficult types of more difficult types of discovery for self-discovery for self-representedrepresented

No Judicial Council No Judicial Council formform

Phrasing of categories Phrasing of categories of document or things of document or things is often very is often very challenging to self-challenging to self-represented litigantsrepresented litigants

Category SuggestionsCategory Suggestions

Category must be clear and definedCategory must be clear and defined Suggest limiting the scope with “non-Suggest limiting the scope with “non-

privileged,” date limits, account limits, privileged,” date limits, account limits, etc.etc.

““Any non-privileged documents identified Any non-privileged documents identified in your response to the [Form in your response to the [Form Interrogatories/ Special Interrogatories] Interrogatories/ Special Interrogatories] served with this Request.”served with this Request.”

““Any documents that you intend to Any documents that you intend to produce at trial,” is objectionable on work-produce at trial,” is objectionable on work-product groundsproduct grounds

Responding to Request for Responding to Request for ProductionProduction

Both a verified written Both a verified written response and response and production are production are requiredrequired

Written response Written response specifically states that specifically states that the production will be the production will be allowed, or identifies allowed, or identifies what is not being what is not being produced and whyproduced and why

A diligent search and A diligent search and reasonable inquiry are reasonable inquiry are requiredrequired

General Tips on Requests for General Tips on Requests for ProductionProduction

Timing of the requestTiming of the request Can be very powerful when combined Can be very powerful when combined

with interrogatorieswith interrogatories Written response is independent of time Written response is independent of time

for actual productionfor actual production Production is of originals unless Production is of originals unless

otherwise agreed uponotherwise agreed upon Cost of production is borne by the Cost of production is borne by the

asking partyasking party

Limits on QuantityLimits on Quantity

Amount of Amount of discovery depends discovery depends upon whether the upon whether the case is limited or case is limited or unlimitedunlimited

Likewise, the Likewise, the remedies for excess remedies for excess in a limited case in a limited case differs from excess differs from excess in an unlimited casein an unlimited case

Final SuggestionsFinal Suggestions

Reiterate the purposeReiterate the purpose Sometimes finding Sometimes finding

out what the other out what the other side doesn’t have is side doesn’t have is more usefulmore useful

Example of Example of exclusionary/ in exclusionary/ in limine motion before limine motion before trialtrial

Example of using to Example of using to impeach at trialimpeach at trial

RemediesRemedies

““Meet and confer”Meet and confer” Motion to deem facts admittedMotion to deem facts admitted Motion to compel responsesMotion to compel responses Motion to compel further responsesMotion to compel further responses Motion for sanctionsMotion for sanctions

TerminatingTerminating IssueIssue

Handout summarizesHandout summarizes

Other resourcesOther resources

Win Your LawsuitWin Your Lawsuit by Nolo Press, Chapter by Nolo Press, Chapter 10 (Self-Help Section and NetLibrary)10 (Self-Help Section and NetLibrary)

California Practice Guide: Civil Procedure California Practice Guide: Civil Procedure Before TrialBefore Trial by The Rutter Group, Chapter by The Rutter Group, Chapter 8, (KFC995.W45 v.2)8, (KFC995.W45 v.2)

CEB Action Guide- Obtaining Discovery: CEB Action Guide- Obtaining Discovery: Initiating and Responding to Discovery Initiating and Responding to Discovery ProceduresProcedures (KFC 1020.Z9 T53 or OnLaw) (KFC 1020.Z9 T53 or OnLaw)

CEB Action Guide- Creating Your CEB Action Guide- Creating Your Discovery PlanDiscovery Plan (KFC 1020.Z9 C74 or (KFC 1020.Z9 C74 or OnLaw)OnLaw)