January 27th Notes

Litigation Basics
January 27, 2010

NEWS
-Complaint and Answer due on TOMORROW
-WSPA Paralegal dinner on Friday 29th 5pm-8pm Bring your resume!
-Thursday night Guest Speakers

-Starting a new direction to DISCOVERY

Discovery is covered in WACR 26-37

Court Rule 26
-is broad
-reasonably to lead to the discovery of admissible evidence is fair game for discovery

Restrictions on Discovery
1. unreasonably cumulative or duplicative (asking over and over again to get answers)
2. more easily obtained elsewhere (more convenient and easier to find)
3. restrictions on anything that presents unduly burdensome or expensive

Can use evidence solely on the purpose on finding information
    -does not have to pertain to the trial directly
   
Can ask questions about anything even though the information is not admissible
    -Why?  Because you don't know where things can lead to.  It can lead to something that is relevant.

Prepared in anticipation of litigation
    -refuse to turn over paperwork
    -they are claimed as work product and can not be turned over
However,
If the report is prepared in the ordinary course of business, it is discovery.

What is your companies policy on handling an accident?  If they answer take a report.  That report is ordinary business.

Motion to Compel
-sent to judge
Compel Production for items you need
-to get it, need to show:
1. Substantial need
2. Unobtainable elsewhere w/o undue hardship

Court Rule 26
-General catch

Court Rules 26(c) Protective Orders
-Motion for Protective Orders
Must show that:
-the discovery is being used for annoyance
-embarrassment
-oppression
-undue burden of expense

Judge has remedies:
-can deny discovery
-limit the breadth (scope)
-gag orders
-designate one method of discovery
-intent of depositions
-nondisclosure orders
-in camera review

Court Rules 26(d)
-eliminated priorities on who sees things first

Court Rules 26(e) Supplemental interrogatories
-once you answer interrogatories, the answers might change or you get new information
-do you have an obligation to notify the other side?
    -States differ on this, some say Yes, some say No
        -separate interrogatories sent to ask for updates to interrogatories
    -WA says there is No duty to supplement EXCEPT when:
    1. "Person w/ Knowledge" (30(b)(6))
        -learn of someone
        -let the defendant identify the person to be deposed
        -who is most in charge of, who is the most knowledgeable of
    2. Experts
        -identify who they are
    3. Prior Response was incorrect
    4. Right at the time, but now is wrong
    5. A request to supplement is made

Discovery Problems
-File a Motion to Compel
    -CR 26(i) Motions; Conference of Counsel Requiring
    -must have a meet and confer prior to filing
    -set a time to discuss with the other side
-If the confer did not work:
    -File a declaration that you had a Meet and Confer that did not work with your Motion to Compel
    CR 37(4) Sanctions
    -Wide range of sanctions
    -"the court shall..."
    -Will not reward if it is was assumed in good faith
    -Judges do not like discovery battles

Depositions
-the queen of chess pieces
-most versatile discovery tool
-witness, party, can depose everyone
    -the other tools are only parties
-evaluative demeanor, spontaneous answer
-very expensive
    -paralegal spends a lot of time making good questions
    -arranging court personnel

-with party, you just give notice of deposition, then arrange date
    -not a party it is a subpoena (DO NOT FORGET THAT)
        -even friendly ones, subpoena anyway
        -Why?  if you don't and have multi-parties and your witness does not show up the judge can apply sanctions on you for everyone that did show up
        -a formality that needs to be done
    -Must give 5 days of notice under CR 30
        -if WA resident, you depose them in their county of residence or employment
        -can not subpoena someone into your county
        -if your party or client, you have in your office
        -if opposition party, you go to their office
    -20 days notice for video taping
        -can not refuse to be video taped
        -still requires transcription

CR 30(d) Motion to terminate or limit examination
-limit or break deposition
-harassing, badgering, unprofessional

CR 30(h)
-in WA to objecting, strict rules to objection
    -must be concise, no coaching through the deposition
    -may not instruct client not to answer (unless it is privileged information)
    -once you make an objection, the lawyer usually rephrases question
    -no conferring with the attorney

CR 31
Deposition through interrogatories
-write out all your questions 14 days
    -other side has cross-questions 7 days
    -redirect questions 7 days
-all recorded and served to all parties (no lawyers involved)
    -lose all advantages of the deposition
-advantages are:
-it is however cheaper
-and because they are a non-party (need to depose non-parties)

CR 32 Depositions
-Deposition of the party can be used for a party
    -in lieu of the plaintiff appearing for live testimony

-Deposition of a witness
    -must come to court and testify
    -unless they ill, dead, and over 20 miles away from the trial

CR 33 Interrogatories
-ONLY PARTIES
    -serve with summons and complaint
        -extra days to answer normally 30 days but with 40 days
    -leave space to answer question
    -admissible in trial BUT only the other side can use them
        -Why?  Prejudice, self serving
    -can produce the documents the information is found in rather than answering

CR 34 Request to produce
-documents and things (anything)
    -can do testing on property, photographs
    -only catch is: you must describe what you want with reasonable particularity

CR 35 Physical and Mental Examination
-can tape them
-entitled to a copy of the report, even though the other side is taking and paying for it

CR 36 Requests for Admission
-not really discovery, need to know what you are asking for
    -done after all the discovery
-the truth of any statement or document

Under WA law, only discovery device which you CAN NOT combine with any other.
-usually added on with interrogatories, with a request to produce 
    -Must be in different documents, since it is submitted to the jury during trial

CASE CHANGER:
WA State Physicians Insurance Exchange v. Fisons Corp (1993) 122 Wa. 2d 299, 858 P2d 1054
-theophylline
    -steroid for lung issues
    -caused issues with children
    -found out about the drug in 1985 and still gave it to children in 1986
Added CR 26(g)
    -adding court rule 11 to the discovery system
-Motions to Compel
   
-prior to this case the intentional withholding of discovery information was bad
    -occurred but was a matter of degree

-after this case, fair and reasoned resistance to discovery is not sanctionable
-misleading, concealing or evasive responses are sanctionable
    -crack down on game playing and manipulation

-Need to frame questions well despite this new addition 

Discovery
-legal process by which the parties to a lawsuit search for facts relevant to a particular case
-legal process by which the parties to a lawsuit search for the facts relevant to a particular case
-lawsuits should be based on the legal merits of the case

5 Types of Discovery
1. Depositions
2. Interrogatories
3. Requests for Real Evidence
4. Requests of Physical and Mental Examinations
5. Requests of Admissions

-CR 26 promotes parties to cooperate
    -big difference in federal and state
-Rule 26: requires parties to disclose certain information to the other party without necessity of formal requests

Objective of Discovery
1. Prevent surprise ***wants to find everything out about a case
    -best before trial
-prevent one of the parties from winning the lawsuit by surprise or trickery

2. truth or falsity of facts ***what arguments are going to be, strategy
-determine the truth or falsity of the alleged facts that form the basis of the suit

*all others just learn stuff*
3. advisability of continuing
    -weak cases should settle
-examine the facts and weigh the advisability of proceedings with the case or settling early

4. preserving testimony
    -all under oath and preserved
-preserve testimony that might be lost should a witness disappear or incapacitated or should records be lost or destroyed

5. impeach
    -stick witness or party to a set of facts   
-methods can be used to impeach  the credibility of a witness should that witness offer testimony at trial that contradicts earlier statements

Informal Discovery
-physical scene visits, photographs, measurements, talk to neighbors
-Discovery can be expensive and time consuming
    -need to become efficient
    -good for seeing weaknesses in case
    -strategy for case and learn about case prior to setting up plans

-Discovery Strategies
    -have a plan for what you are going to do
    -budget your money and time
    -do not just "react" to everything
    -need pro-activity rather than just defense
    -remember every case is unique

Discovery process is regulated by rule 16, rule 26-37, and rule 45
-Rule 16: Pretrial Conference, Scheduling, Management
-Rule 26: General Provisions, Disclosure,

Depositions
-out of court questions and answer session under oath, conducted in advance of a lawsuit as part of the discovery process
-Rule 27: Depositions before action or pending Appeal
-Rule 28: Persons before whom depositions may be taken
-Rule 29: Stipulations regarding discovery procedures
-Rule 30: Depositions upon Oral examination
-Rule 31: Depositions upon Written questions
-Rule 32: Use of Depositions in court proceedings

Interrogatories
-written questions requiring written answers under oath and directed to a party
-Rule 33: Interrogatories to parties

Request for the production of documents
-party or other individual involved in a lawsuit provide specific documents or other physical evidence
-Rule 34: Production of documents and things and entry upon land for inspection

Request for physical or mental examination
-party in lawsuit to undergo an exam provided there is an issue in a lawsuit
-Rule 35: Physical and Mental examination

Request for admissions
-admit the truthfulness of a fact or the genuineness of a piece of evidence
-Rule 36: Request for Admissions

-Rule 37: Failure to make disclosure or Cooperate with discovery, Sanctions

Subpoenas
-Rule 45: Subpoena

Scope of Discovery
-it is evidence is it tends to prove or disprove facts that can determine the outcome
-Rule 26: evidence need not be admissible but should lead to evidence that can be

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Expense of discovery
    -find out client's budget to get what we need

Ethical Consideration
-truthfully answer but do not help them draft their questions
    -you do not have to help them develop their discovery

discovery is broader than admissibility

HOMEWORK
-what you would like to know for after the program and what they found useful
-job market