February 4th Notes

Litigation Basics
February 4, 2010

NEWS
DATES:
Feb 11th: Midterm
Feb 25th: Discovery Project Due
    -make interrogatory questions count
    -no need for biographical background
    -get to the real questions, people, documents, prior issues
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"I keep six honest serving men they taught me all I knew their names are What and Why and When and How and Where and Who." ~Rudyard Kipling

District Court is up to 75K instead of 50 K in WA State

-he's not a fan of the interrogatories
-good for gathering background information but getting substantive information is ineffective
    -generates more work than it's worth
    -overrated discovery device
    -never usually impeaches at trial

Federal Rules is 25 questions
King County is now 40 questions
-starting to limit discovery all over the nation

Chapter 10

Interrogatories
-written questions submitted by one party to another party
-answer the questions in writing and under oath
-Rule 33 regulates the use
-should not be served until the parties have initially conferred under Rule 26
-cannot be served on non-party witnesses involved in a lawsuit
-the answers are from the client, not the attorney
-30 days to respond or 40 if they are served with complaint and summons
-can give a document in lieu of an answer

Scope and Number of Interrogatories
-Rule 33 and Rule 26(b)(1): broad scope of discovery applies to interrogatories
-Rule 26: no more than 25 interrogatories

Purpose
-obtain information about basic facts in a case and to supplement the information required to be disclosed under Rule 26
-determine the party's contentions and identify specific individuals or documents that support those contentions
-can be used to impeach a witness at the time of the trial
-may facilitate settlement of the case

Advantages
-simple, expensive, efficient
-no need to schedule
-more thorough than a deposition
-complement other discovery
-answering party has to make an effort to answer the question
-no difference in the law between under your control and in your possession
    -examples: tax forms, insurance policies may need to call for these
-duty to supplement

Disadvantages
-may not eliminate need to take depositions
-lack spontaneity
-do not allow for follow up questions
-may help the opposing party in preparation for their case

Discrete subpart
-subpart in the question that stands alone
    -it could be its own interrogatory

Example:
Have you ever been to the beach?
    -When?
    -What beach?
    -Who were you with?

-example is fine, it is a proper subpart
-might want to send some questions first then save some for later

Drafting Interrogatories
3 "C"s of Interrogatories
-clear
-cogent
-concise

-the kind of questions you could read to a jury and have them understand it
-DANGER "and, if so," means you are being long-winded
-one idea per interrogatory

Preliminary Steps
-to be effective:
-familiarize with the facts of the case, both halves
-should be able to answer, "Why am I asking this?"
-what is needed to prove our theories, what are they going to use against us
-make a plan to follow, what you want to get from this person
    -pick some theories you want to follow
-review pleadings, correspondence files, attorney notes, research notebook, discovery findings

Form and Content of Interrogatories
-consult the appropriate court rules to determine the form required in your jurisdiction
-contain title, intro paragraph, definitions, instructions, specific interrogatories, a signature, certificate of service

-DO NOT DO IT LIKE THE BOOK!
    -just like pleadings heading says "Plaintiff name First set of Interrogatories" instead of Answer of Complaint

Title and Introductory Paragraph
-identify documents
-identify the party serving the interrogatories
-the party receiving the interrogatories
-number of set of interrogatories
-Federal Rules do not require introductory paragraph
-identifies the recipient of the interrogatories
-answer is required within a period of time
-state federal or state rule under which the interrogatories are in
-number of interrogatories
-statutory requirements for supplemental answers

Definitions
-OPTIONAL FOR PROJECT
-distinct so that responding party can easily locate it
-clear up discrepancies
-eliminates need to repeat the meaning of a word
-enlarges the number of questions asked by adding subtopics
-to prevent objections

Instructions
-OPTIONAL FOR PROJECT
-prevent confusion and help the party prepare
-desired action of other party
-consider the time the interrogatories will cover
-not only accident but prior
-avoid being overbroad
-duty to supplement when necessary
-conditional supplement State(WA): if a prior response has changed, experts added, learned of new information
-page 277 
    -Usually add B. and C. to the instructions
    -boilerplate add-ons
-Rule 26(e): only require supplementation when ordered by the court when a party learns that the response was materially incomplete or incorrect and the correct information has not otherwise been made known during the discovery process

How to draft the Interrogatories
1. is it targeted to my goal? (substance)
2. how have i phrased it, clear, cogent, concise (form)
3. is it going to elicit substantive information? (people, facts, documents, contentions)

-be broad with your questions
    -identify people with knowledge of the fact rather than people who saw something
        -better for getting more people, don't be too specific
-he's going to try to answer with just "yes" and "no"
    -avoid answering yes and no questions!
-get facts and documents
    -do not waste questions on documents you can request to produceb

Specific Interrogatories
-number of specific questions allowed under the new Rules 25

1. Interrogatories that identify people
    -specific questions about individuals
    -identifies of people that gave statements to the party's attorney
    -identify the expert witnesses
2. Interrogatories to establish facts
    -seek to uncover facts surrounding allegations
3. Interrogatories that identify documents
    -seek information about medical reports, medical bills, earnings, income tax returns
4. Interrogatories that identify contentions
    -Rule 33(c) need not be objectionable simply if it asks "an opinion or contention that relates to fact or the application of law to facts"
 -2 or 3 questions in the set REQUIRED on assignment
    -valuable, allegations and how you intend to prove them
    -"Since you contend, (insert something from their Pleadings to use), was there ..."
    -"If, so, please state all facts upon which you base your contentions."
    -The answers will always be yes since this information came from the pleading
    -way of exploring the contentions against your client

Example:
Do you contend that Bruce's Lit class is boring?
If so, please identify
a.) All persons w/knowledge /info about this contention.
b.) All documents which support/tend to support this contention.
c.) All facts that support/tend to support this contention.

-This defense will serve as a place holder until you are ready to answer the allegations:
All defenses asserted are upon advice of counsel.  Discovery and investigation are continuing and ongoing and no where near completion at this time.  Consequently this responding party reserves all rights to supplement or amend this response should further facts, documents, persons, be discovered.

-interrogatories need not be answered until after designated discovery has been completed or until pretrial conference or other later time

Summary Paragraph
-used to request any information that may be relevant
-never answer them
    -they don't want to help you and they don't know what you think is relevant

Signature and Certificate of Service
-signature block, a certificate of service sets out the date, type of service and whom service of the interrogatories were made
-Interrogatories are not filed in Federal Court

Tips for Drafting interrogatories
1. read all documents
2. understand what the attorney wants to accomplish
3. read court rules to determine format and number of interrogatories permitted
4. consult forms interrogatories
5. draft preliminary portions
6. draft facts and issues, identify facts and expert witnesses, ask for legal and factual contentions
7. keep the interrogatories simple
8. organize into categories
9. who what where when how and why
10. request all facts relied upon in the last pleading filed
11. not be excessive in length
12. look for objections
13. proofread carefully
14. arrange service and filing
15. calendar the answer date and follow up for same
16. consult about motion to compel

Motion to Compel
-when a party does not cooperate
-read each answer, review the objections, note answers that are incomplete
-difficult to resolve
-misuse of the term N/A, use when you mean "no"
-sanctions under rule 37

Determining time limits
-normally 30 days after the interrogatories were received
    -if you wait too long to answer ask for an extension to respond prior to 30 days
        -to answer or otherwise respond

Checklist for writing Answers
1. Calendar deadline for answer
2. Send copy to client and schedule meeting to work on answer
3. Make another copy for a file
4. Make notes about individuals that might have information to answer
5. Review for contradictions
6. Look for possible objections
7. Draft after information given
8. Arrange for filing and signing
9. Update as needed

Answering the Interrogatories
-answer in "I" form, it is the client's answers
-you or the attorney can help answer but it is in the client's voice

Form of the Answers
-answered separately in writing
-answers must be engrossed by restating the interrogatories to be answered
    -answer needs to incorporate the question
example: "addressing the question to how fast I was going, I was going 25mph"
-most states do not use this technique
-duplicate the interrogatory

-WA: interrogatory, leave a space, then they answer below the question, in one document
CR 33(a)

Content of the Answers
-straightforward and complete
-if the answer is unknown you may state that fact and supplement the answers later
-designated hearsay
-interrogatories answers are admissible only against the interest of the responding party
-can not use client's answers to prove facts in your case
-if you refuse to answer, must give a reason
-do not produce extra information

Fulfilling the Duty to Supplement
1. party learns that response given was some material respect incomplete or incorrect and the additional information has not been made known
2. order of court
-need to go through interrogatories prior to court to update and get the update from the other side

Objections to interrogatories
-Rule 26(g)(2) and Rule 33: objections signed by attorney
-argue they are overbroad, irrelevant, burdensome, vague, unintelligible

1. Attorney-Client Privilege
-objection can be raised if it violates
-Rule 26(b)(5): objection must describe the nature of the information desired and how it is protected

2. Medical Privilege

3. Inadmissible and Irrelevant Evidence
-must be reasonably calculated to lead to admissible evidence

4. Unduly Burdensome
-interrogatories that are complex and detailed and spend too much effort to answer

5. Confidentially Agreements and Protective Orders
-where one party needs to keep secret
-imposed voluntarily through confidentially agreements
-court ordered by protective orders

Burden of proof
-party objecting to an interrogatory has the burden of proof
-specify ground for objection
-in camera viewing by judge


Chapter 10 Review Questions
1. What are interrogatories?
2. What are the purposes of filing interrogatories with the opposing party?
3. What are the advantages and disadvantages of using interrogatories?
4. What are the new rules regarding ESI and interrogatories?
5. What are the specific types of interrogatories that can be asked?
6. What types of topics would have to be covered in any set of interrogatories designed to pave the way for a document production request in relation to ESI?
7. What options are available to the requesting party should the responding party refuse to answer an interrogatory?
8. When is it necessary for the responding party to supplement an answer to an interrogatory?
9. What objections to interrogatories can be raised by the responding party?
10. What is the procedure for dealing with an objection based on privileged information?