February 10th Notes

Litigation Basics
February 10, 2010

NEWS
Job Opportunity
Elyse Conte (from "Homecoming")has opening at her firm for an assistant Cole, Lether, Leid, & Hall Insurance Defense Litigation
Info: econte@clwlh.com

MIDTERM TOMORROW
-------------------------------------------------

Chapter 12
Request for Documents
-a request that a party in a lawsuit asks for a document or physical evidence to the party making the request

Federal Rule 26(a)(1)(B)
-mutual disclosure of the following within 14 days of the initial conference a copy of documents, ESI, tangible things
-most of the documents are not known of at this point
-only required to give you documents that they know of that support the claims and defenses not yours
-do not rely on this rule to do the discovery for you

Federal Rule 30(b)(5)
-request for documents at the depositions
-disadvantages is that they may bring too many documents
    -one or two documents is manageable

Ways to get documents in Discovery
1. get the party deposed to bring them with CR 30(b)(5)
    -only a notice, does not have a subpoena so a non-party needs a subpoena
2. subpoena duces tecum CR 45
    -changed so that just documents can be brought (also non-party)
    -must subpoena them so they appear
3. interrogatories CR 33(c) (bring the documents contained in the information for the question)
    Federal CR 33(d) or State CR 33(c)
    -only party
4. request to produce CR 34
    -only for party
   
-Remember only way to get information from a non-party is a deposition
    -you can only notice a party, everyone else needs a subpoena

-CR 34 is different from the other discoveries
    -30 days to respond to this request, just a statement on what you intend to produce, does not mean actual production
    -does not tell you the time limit on when production must happen

-Request to produce documents must be "reasonable particular", so they know what documents are called for by the request
    -you draft as broad as possible, they try to narrow it as must as possible
    -any documents under their possession or under their control
    -may have to retrieve from accounts, employees, etc.

-Should you do this early or late?
    -want to do as soon as possible BUT sometimes it is better to delay until depositions and interrogatories have been done

Advantages for Early
    -prepare for deposition
    -looking at the strength of the case
        -damages, how much it really is worth
    -strategies of theories
-he personally prefers early
    -you can send out another request to produce after the deposition (unlimited amount)

Advantages for Later
    -depositions may produce new information
        -strange information that can help your case

Cost of production
-too many categories can lead to too many documents
    -you bare the cost of copying any documents, so remember that this cost comes from the client
    -important to be efficient

Approaches to Document productions CR 34(b)
Two ways to put documents together for delivery
1. sort in the categories the other side has laid out
    -usually takes more time and effort
    -but this means the other side is evaluating the documents for your categories
2. sort in the normal way they are kept in business (alphabetical, chronological)
    -great for learning more about the case, forces you to look at everything

The number of documents
Three Approaches
1. warehouse approach: everything you can get your hands on, bury them with paperwork
    -can draw Fisons objections   
    -could be producing privileged information
    -does not work, since many lawyers will read everything and you might get malpractice, bar complaint
2. broad based production: give them more documents about the case then necessary
    -saves time and effort, since they might ask for them later
    -not a good idea since it helps them, wait for the to ask for it
3. limited production: only the documents they asked for
    -watch specific wording, they will give you exactly what you asked for

Protection of Documents
-remember your privileges, same ones from interrogatories   
1. attorney/client
2. work product privilege
    -compilations or assessments
3. common interest privilege   
    -multiple parties being sued, market-share liability (iuds, thalidomide, asbestos)
    -not sure where they got the problem
    -must hit every percentage of the industry (pay percentage of judgment)
4. medical and confessor privilege
5. overbroad and duplicative requests
    1. scope (too many categories)
    2. in time (too long a period of time)
    -some other parties will provide better ways to redraft for what they are looking for
    -can be tricky since they might be hiding a critical year or critical categories
6. inadmissible and irrelevant evidence
7. confidentiality agreements and protective orders
    -review the documents you are producing
8. format objections to document requests
9. inadvertent production of documents

Drafting the Request
-review case
-create roadmap
-initial research
-take a look at forms first

(set up like a pleading)
***heading is not in the middle of the page!
Title and Intro Paragraph
Definitions
Instructions
Documents Requested

Documents Requested Example page 329
-"including, but not limited to, (3 or 4 examples of the term)"
-"for the period of (year), including but not limited to (3 or 4 examples of the term)"
-always good to give them examples so they understand what they are looking for
-Example: repairs, maintenance, improvement during the last 3 years but not limited to lighting, wiring, carpeting
-if you need to explain it, you need to re-draft it (unless it is terminology)

Discovery is not filed with the state courts in WA
-too much paperwork

-whether you are sending or arriving calendar these dates!
    -in 30 days you will have a response
        -if not, check on it

-if you produce documents, producing them waives any objections to producing them
    -can't object after they were handed over
    -you could still argue at trial about it, all documents are hearsay and you can object at trial


About Discovery Assignment
1. Interrogatories
2. Request to produce
-can be combined into one
    -if the answer could be a document, make it a request to produce
3. Request to Admit
    -is freestanding, can not be combined


#1. Please describe in detail how and when you learned of the UW Paralegal Program.
#2. Please describe all the projects you completed in litigation
RTP #1  Please produce all documents in the forgoing interrogatory
#3. Please identify the dates of all exams in fundamentals, lit and complex litigation
RTP #2 Please produce all documents in the forgoing interrogatory


-Bruce generally does it separately
    -can identify in the Interrogatories but likes a separate sheet
    -no real advantages, can do either way for the assignment


MIDTERM REVIEW
Injunctions
-14 days it dissolves
    -14 calendar days, so holidays and weekends count
-less than 7 days you don't count it
    -means it is calendar days
-if the court is closed, it is a holiday
-if it lands on a weekend or holiday, it moves to the next business day


CR 9 Notice pleading state
    -no details
-very limited
-if it is a fact pleading state you need to show the facts of the case


Interpleading
-a party can leave a lawsuit
-airplane accident, insurance gives money to plaintiffs to split
-Escrow companies: earnest money down


find this rule, what does it say
    -can you find it and use it
    -legal authority for complete diversity
Fisons: take away why is it significant?
    -preFisons: only get in trouble for willful holding of documents
    -Fisons: broadened that to include half-truths, evasiveness
        -tightened discovery for better truth and compliance


forum non conveins
    -move a court from a proper venue and jurisdiction to another for conveniences of others