chapter 13 thirteen interrogatories and requests for production
TRANSCRIPT
Civil Litigation:Process and Procedures
Chapter ThirteenInterrogatories and Requests for Production
Civil Litigation: Process and Procedures Goldman/Hughes
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Interrogatories and Requests for Production The two most frequently used
discovery devices Written requests for information Addressed only to parties, not
witnesses The basis for other
investigation, additional discovery requests
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Interrogatories A formal request for answers to written
questions Answers are made under oath, signed by the
client/party Subject to perjury laws Can be used for impeachment at trial
Protected information generates an objection, rather than an answer Usually privilege or work product Attorney must sign (ratify) an objection
Civil Litigation: Process and Procedures Goldman/Hughes
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Requests for Production Federal Rule 34 – Production of
Documents and Things and Entry Upon Land for Inspection and Other Purposes
Moveable items and documents must be furnished upon receiving the discovery request
Non-moveable items (e.g., real property, large equipment) can be inspected on-site (entry)
Requests for protected material should generate an objection
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Request for Production – Non-Parties Although the discovery tool is not
available, non-parties may be asked to produce documents or permit inspection
The request comes in the form of a subpoena duces tecum
This may also command an appearance at a hearing, deposition or trial
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Subpoena on a Non-Party
Civil Litigation: Process and Procedures Goldman/Hughes
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Discovery Document Format Similar to pleadings
Caption Identification of the document Introductory paragraph Party serving it Action required of the recipient List of definitions Body Attorney’s signature Certification of service Verification of the party (answer)
Civil Litigation: Process and Procedures Goldman/Hughes
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Body of the Document In interrogatories, written questions In requests for productions
List of documents List of physical objects Proposed arrangements for inspection,
right of entry
Civil Litigation: Process and Procedures Goldman/Hughes
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Time-Frame Some preliminary information is
required “up-front” A meet-and-confer will set out the
timeline The faster the discovery is completed,
the greater the time available for settlement prior to trial
Deadlines may be extended In initial discovery plan By stipulation between the attorneys By order of the court, with good cause
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Drafting Interrogatories Largest source of objections during
discovery Court may limit the number of objections Used to obtain information controlled by
the other party In addition to 25 initial questions, there
will be initial disclosures under federal rules which will eliminate some areas of inquiry
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Drafting Based on an analysis of the claims,
proof needed, and possible defenses May be modeled on forms for simple
cases (form books, form files) In complex cases, may be designed
to lead to additional avenues of investigation
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Claims, Defenses, Issues Review the complaint, any motions Review or research the elements
needed to prove the claims Review the defenses outlined in the
answer Review the preliminary material
provided under Fed. Rule 26
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Proof What will need to be produced to prove
the client’s claim or defense? Identity of witnesses Documentary evidence Physical evidence Inspection or testing required for expert
analysis As a matter of strategy, some questions
will be reserved for depositions (more spontaneous responses)
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Preparing Interrogatories Writing
Review pleadings and prepare a list of claims & defenses
Review or research the necessary elements Review initial disclosures made under Rule
26(a) Identify areas with a lack of supporting
information Service
Set of interrogatories should be sent to opposing counsel(s), if that party is represented
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Reminders Never directly contact a party who is
represented by counsel Be sure to calendar (docket or tickle) the
expected due date for answers If responding to interrogatories, be sure to
calendar the necessary reminders as well as the due date
If the due date passes without response, a motion to compel may need to be prepared
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.16
Responding to Interrogatories Make 2 working copies Review with attorney to identify any
objections Send a copy to the client & schedule a
meeting Review all case information Meet with the client, draft responses Review draft responses with attorney, amend
as necessary Meet with client for verification of final
answers Be sure response is received before due date
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.17
Objectionable Questions The attorney will object to questions that
should not be answered Seek information protected by
Privilege Work product doctrine Trade secrets exception
Duplicative or under control of the requesting party
Vague, overly broad, burdensome (can narrow)
Unlikely to lead to admissible evidence
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Narrowing the Scope
Civil Litigation: Process and Procedures Goldman/Hughes
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Motion for a Protective Order The requesting party may accept the
objection coupled with a narrower answer
If not, a motion for protective order will be filed with the court at the same time answers are served on the opposing attorney
The judge will sustain or overrule the objection
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Discrepancies If the client information differs from
that contained in the file May be a faulty memory May be a change in facts that could
affect a claim or defense Must be brought to the attention of the
lead attorney as soon as possible The client signs under penalty of
perjury
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Certificate of Service
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Reviewing Answers Check to see that all have been
addressed Answered fully Objected to
If a motion for a protective order has been filed, calendar (tickle) it with adequate reminders for preparation
Analyze answers to discover any follow-up required by requests for production or deposition
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Preparing a Request for Documents Integrate information from
interrogatories into case file, and re-analyze the claims, elements & defenses
Request any documents revealed in the previous discovery requests (remembering that the order of discovery is a strategy issue)
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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A Request for Production
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Responding to Requests for Production
Each document requested must be reviewed by the attorney for possible objections, including relevance
Be sure the documents are numbered Each request MUST be answered, with the
document requested or an objection If the production of documents is unduly
burdensome, the requesting party may be permitted to review & copy the pertinent documents
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Retrieving Documents Paralegals may do manual reviewing
& copying of documents The material requested may be in
electronic format for litigation support (or document management) software to search
The material may be scanned from hard copy for the same purpose
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.27
Reviewing Responses Every request should have an answer Be sure the documents requested are
actually provided If there are objections, the attorney must
determine whether to accede to the objection or defend the protective order request
If there is no response, a motion to compel may be needed
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.28
Meet and Confer Before the initial scheduling
conference with the judge – Rule 26(f)
Try to stipulate to Timelines Formats of electronic documents
required “Claw-back” provisions, etc.
Reported back to the judge for use at the scheduling conference
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.29
E-Discovery Questions for the Client’s Business Who manages the computers/network? What programs/software are used? What are the e-mail IM provisions? How are documents created, transmitted, stored? What is the back-up system? Who in the company has access/administrative rights? Who outside the company has access? What is the security system? Who performs maintenance & repair? What is the document retention, archiving & destruction
policy?
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.30
E-Discovery Considerations Native format or TIFF/PDF? Metadata? Cost of retrieving
Destroyed or corrupted files Files stored on obsolete devices
Client’s retention policy (litigation hold)
“Claw-back” provisions