February 2nd Notes

Litigation Basics
February 2, 2010

NEWS
Midterm Study Sheet on the Paralegal Google Group or Taped Lectures
http://groups.google.com/group/uwparalegal/web/ChapterReviews.doc?hl=en
or
http://www.soulee.net/Paralegal/ChapterReviews.doc

DATES:
Feb 11th: Midterm
Feb 25th: Discovery Project Due

Full Time Position Paralegal Support Person
-Secretarial, Computer Software, Some PI, experience, ability to handle clients
-Rob Kornfeld, Trudell, Bowen & Lingenbrink
Rob@kornfeldlaw(DOT)com
www.kornfeldlaw.com

-Pleadings tomorrow (overall very good)

Today: Handout #12 Privileges
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Privileges

For a privilege to apply:
1. Communication must be confidential in nature,
    -is it intended to be confidential
2. Communication must be made within a legally protected relationship, and
3. Communication must be made without any unnecessary third party(not needed to effectuate the relationship) present

Communication Privileges
1. Attorney-Client Privilege (2)
    -prevents forced disclosure, includes paralegals
    -may be lost if communication is leaked
    -client's name, fact of representation, general business advice are not privilege
    -future crimes are not protected but past crimes are
    -any litigation between the attorney or client waives the privilege

2. Physician-Patient Privilege (4), 5.60.060(4)(b)
    -protects medical providers
    -valid only if voluntary
    -any health care provider
    -any insanity privileges waive this right
    -does not apply in child abuse cases

3. Psychologist-Client Privilege 18.83.110
    -similar to attorney client
    -child abuse also exempted

4. Confessor-Penitent Privilege 26.44.060
    -child abuse exempt
    -(check to see if they have to report suspected child abuse)

5. Marital Privilege
    -neither spouse can be examined regarding any confidential communication during the marriage
    -spouse v. spouse no privilege (criminal, civil, divorce)
    -Spousal Incompetency Privilege:
        -applies to all communications, not just confidential ones
        -but to raise its privilege, it must be objected to or at trial
        -at discovery you can ask it

6. Optometrist-Patient Privilege
       
7.  Public Officer Privilege 5.60.060(5)     
    -aka: Government Information Privilege
    -any public officer can refuse to be examined as a witness about their official business if the public would suffer from its disclosure (public outcry)
    -can not hide criminal or automobile under this privilege

8. Grand Jury Privilege 10.27.090
    -proceedings are done in secret
    -only privilege that can not be waived

Other Privileges
Newspaper Journalist protecting their sources:
    -DOES NOT EXIST
    -1974: Branzburg v. Hayes  - Justice White
    "public has a right to every man's evidence and it is more important to stop crime than to write about it"
    -Following this decision, the states enacted "Shield Laws"
        -designed to protect newspaper reporters
        -WA does not have this privilege

Work Privilege
    -not a communication privilege
    -waivable
    -prevents the opposing parties from getting letters, documents, memos, records and other items
    -anticipation of litigation: is work product
    -Rule 26(b)(3): not an absolute privilege
        -may be compelled if substantial need that are too hard to get by other means
        -impressions, opinions, conclusions are still covered

Common Interest Privilege
    -protect clients and attorneys
    -protects oral statements, written notes, memos
    -both civil and criminal

Protection of Expert Testimony
    -Rule 26(a)(2) need to disclose name, opinion, report, and qualifications
    -Also work product

5th Amendment Privilege against Self Incrimination
    -usually not available in civil only criminal
    -in civil it must protect the public
    -in antitrust suits it can be raised but can lead to triple damages
    -Government can grant immunity or there is a Statute of limitations expired

Confidentiality Agreements and Protective Orders
    -matters that must be kept secret
    -voluntarily through confidentiality agreements
    -Rule 26(e): protective orders

Mutual Disclosure
-Under Rule 26
-comes late in the game
-and only have to tell you what I'm going to use, that won't be useful to you

Disclosure
-process of revealing information that was unknown or difficult to comprehend
-exchange information freely
-Early in the case: includes potential witnesses, documentary evidence, evidence of damages, copies of insurance
-Later in the case: (no later than 90 days before trial) expert witnesses who will testify
-Shortly before trial: (no later than 30 days before trial) evidence they intend to use at trial

Discovery Conference
-Rule 26(f): "meet and confer" no later than 21 days before a scheduling conference is held under Rule 16(b)
-Rule 26(f) states that a discovery plan should include:
1. changes in timing, form, requirements for mutual discoveries
2. which discovery is needed, completion date, phases, limited on focus
3. ESI discovery and format
4. privileged information, concerns on agreements
5. normal limitations changes
6. orders sent to the court

Rule 16: Pretrial Conference
-designed to make the process of lawsuits more efficient, simple, fair and economical
-simplified pleadings, limits on witnesses, issues at trial, discovery process
-Rule 26(f): court may also be permitted to waive the written report required under 26 provided the parties agree to an oral report held under 16

Mutual Disclosures
Initial Disclosures
-Rule 26(a)(1): the parties can exchange information within 10 days of their "meet and confer"
    1. name, address, telephone number of anyone involved with relevant facts
    2. a copy of all documents, data and ESI and tangible things
    3. damages listed with supporting information
    4. insurance agreements

Excluded Categories
Rule 26(a0(1)(E):excludes certain proceedings from initial discovery
1. review on administrative record
2. petition for habeas corpus
3. action against someone in US custody
4. quash of alternative summons or subpoena
5. US recovering benefit payments
6. US collecting on a student loan
7. ancillary proceedings in other courts
8. enforce arbitration award

Disclosure of Expert Testimony
-made at least 90 days before trial
-unless evidence is intended to contradict evidence from another expert than disclosure in 30 days after initial disclosure

Report contains
1. statement of all opinions
2. basis for opinions
3. data considered
4. exhibits in support of opinion
5. qualifications of witnesses, list of publications in the last 10 yrs
6. compensation paid for study and testimony
7. other cases the witness has testified in as an expert from the last 4 yrs

Pretrial Disclosure
-at least 30 days before trial
1. name, address, telephone of each witness
2. witnesses depositions
3. identification of documents

-objection to admissibility of deposition or document is made within 14 days of service of pretrial disclosures

Duty to Supplement
-disclosures are supplemented if they are acquired:
1. information disclosed is incorrect
2. additional information has not been made known

Voluntary Cooperation
1. each side knows that any attempt to disrupt discovery will result with the same upon them
2. court disapproves of that behavior
3. sanctions for those that refuse to obey

Orders to Compel Discovery
-Rule 37: asking the judge to compel
-must be accompanied by a certification that he has conferred and attempted to confer

Sanctions
Rule 37: dismissal of action, granting of default judgment, granting reasonable expenses, attorney fees, contempt of court
-can be against, attorney and client

Chapter 8 review
1. What is discovery?
2. List the 5 major methods of discovery
3. What factors must be considered when choosing amount discovery methods?
4. Name 5 unethical practices involved in the discovery process.
5. Explain what types of evidence can be legally obtained during the discovery process.
6. What are the differences amount the attorney-client, work product, common interest, and 5th amendment privileges?
7. Explain the purpose of confidentiality agreements and protective orders.
8. What is the purpose of quick peek and clawback agreements?
9. What types of disclosures must be made by parties under Rule 26?
10. Describe the contents of a discovery plan as required under Rule 26.
11. Why is voluntary cooperation necessary for the discovery process?
12. What consequences can result from a refusal to cooperate with an order compelling discovery?


Chapter 9
Depositions
-out of court questions session under oath conducted in advance of lawsuit
-Rules 27-32
-Rule 26(d): depositions may bot be taken before the meet and confer session authorized in 26(f)
-purpose is to uncover and explore all facts known by the party or unknown
-can be questions that could lead to admissible evidence

deponent
-anyone being deposed, does not matter what side they are

Three ways to take depositions
1. Oral Depositions
    -involves actual presence of the deponent
    -Rule 30(d)(2): no more than one day and max of 7 hrs
    -can be opposing party or nonparty witness
    -court reporter must be there to give oath and record with a transcript
    -Rule 30(b)(2): party taking depo may specify the means that the depo be taken
    -Rule 30(b)(3): any party can add another method to record
    -Rule 26(c)(5): may only be taken with people present that the court has named   
        -if you are a party you can attend every deposition
2. Questions
3. Telephone
    -question and answer using telephone or cell phone
    -Rule 30: gives provisions
    -can use digital camera, cell phones, PDA
    -Internet depositions
        -Rule 30 (b)(7): any remote electronic means for a deposition

-if you need more time: you file a motion to take a longer deposition

Tasks the Paralegal may have to do
1. Taking the deposition
    -most amount of work for paralegal
    -prep attorney
2. Defending the deposition   
    -the other side takes one of your client
        -paralegal preps client
3. Attending the deposition
    -some other lawyer is taking and some other defending it
        -paralegal is just taking notes

Advantages
-gives the attorney a chance to see how people would perform on the witness stand
-preserve testimony
Rule 32(a)(3):in order to use the deposition at trial, witness must be dead, ill, infirm, aged, imprisoned, out of country, over 100 miles away, unresponsive to subpoena
-Spontaneous nature: deponent must immediately answer (point out when waiting occurs)

Disadvantages
-costs to everyone
-time consuming

Digital Depositions
    -not sure you can learn the skill from a DVD
Rehearsals are good, but expensive

Paralegal's Role in Oral Deposition
-handling procedural details
-notice and subpoena requirements
-prepare questions

Notice Requirements
-attorney taking the depo should contact defending attorney to schedule date for taking one from their client
-be flexible
-determined by jurisdiction
-11 days notice for Deposition in WA  Rule 30(b)(1)

-Rule 32(a)(3):prohibits the use of depo in court against a party that received less than 11 days notice and who had pending orders for a protective order

notice of intent to take oral deposition
-notice spelling out date, time, place of deposition
-name, address and intended deponent and attorney who will ask questions

-no less than 20 days to video tape

-Rule 30(b)(2): recording can include electronics
    -clear that party taking e-deposition is responsible for costs

-Rule 30(b)(5): bring documents for deposition
    -Rule 34: must also be respected

Subpoena Requirements
subpoena
-written order issues to court commanding a presence of a non-party witness in order for that person to give testimony in an official proceeding
-do not have to subpoena a party but you can

-issued by clerk of court in federal,  in state the lawyers can do the subpoena
-you provide copy of notice to take deposition to the clerk where the deposition will be taken
-subpoena may be served by sheriff, bailiff, non-party over 18

-Rules 30 and 45
    -serving non-party witnesses with subpoena duces tecum (SDT)
        -specific order for documents to be brought
-Rule 34: Requests to produce (can not be on non-party)

Preparation for the Deposition
To take:
-gathering background information, review documents, develop historical timeline, summarize prior discovery
-prepare outline, plan questions
-prepare exhibits
-set up equipment
-travel

Rule 45: if more than 100 miles away from residence, employment that person can motion to quash and be compensated for inconvenience

-in WA you deposition in the county where they reside
-can not compel out of state, must get a subpoena from that state to get the deposition and you must do the deposition in that state

To defend:
-preliminary objections
-to produce documents: can object on the grounds of overbroad
    -ranging from inclusive and more evidence than useful
-raise they are duplicative
    -request that replicates a request that was made at some previous time
-prepare client
    -usually 3 days prior
    -how to dress, how to take the questions, how not to be distracted
-organize documents to be produced
-never volunteer information
-use a mock deposition on client

Paralegal's Role during Oral Deposition
-take notes, evaluate witness
-control or produce documents and exhibits
-notes are for bringing up incomplete or inconsistent answers to your attorney's attention
-help attorney focus on questions

Witness Evaluation
-evaluate effectiveness of witness

Taking the deposition
1. do they contradict
2. hesitant
3. how often do they refer to notes
4. intimidate by attorney
5. how often does he not remember

Defending the deposition
1. convincing
2. does he take his time answering questions
3. volunteer information unnecessarily
4. argumentative/over friendly
5. answer aloud, or just nod
6. consistent

Paralegal's Role After the Oral Deposition
transcript arrangements
-obtain copies from the court reporter
-charged for the service
-additional fee to speed up
-copies for supervising attorney, review for errors
-deponent has 30 days to sign and make any changes to the transcript

Rule 30(f)(1): requires that depositions be sent to attorney who set up the deposition in the first place but does not require filing

Rule 5(d): forbids the filing of depositions, until such time as the deposition is actually used in proceeding or until the court orders that the filing takes place

Deposition Summary
-written abridgment of deposition that condenses to concise format
-topics or subject matter

Presummary Considerations
    -when supervising attorney needs it

Types of Summaries
1. page line deposition
    -records info in the order it was presented in the deposition process
    -review quickly and focus on areas that he wants to explore
2. topical summary
    -certain designated topics
    -good for legal strategies
3. chronological deposition summary
    -based on temporal sequence
    -critical importance of events in case

Deposition upon written questions
-before the court reporter that consists of oral responses by the deponent to written questions
-the deponent is physically present, the attorney is not
-Rule 31 and Rule 30: limit on number of depositions, deposing the same witness trice, taking deposition before time in Rule 26(d)
    1. cross questions- 14 days after notice and written questions served
    2. redirect questions- 7 days after service of cross questions
    3. recross questions- 7 days after service of redirect questions

disadvantages
-no way to ask follow up

notice of intent to take deposition upon written questions
-date, time, place of planned deposition upon written questions
-subpoena must accompany any such notice to non-party

Chapter 9 Review Questions
1. What is a deposition?
2. Name 3 advantages and 3 disadvantages of oral depositions.
3. Name one trend in e-discovery.
4. What is a notice of intent to take an oral deposition?
5. What responsibilities does a paralegal have in preparing for a deposition?
6. What responsibilities does a paralegal have in during an oral deposition?
7. Explain the paralegal's role in arranging for a transcript.
8. Identify 3 types of deposition summaries.
9. What are the advantages and the disadvantages of taking a deposition upon written questions?