Document Production Process: Scope, Procedure, and Analysis

1. Production of Documents • Scope • Includes documents of all types, including pictures, graphs, drawings, videos • Includes documents stored electronically • Does not include privileged info or work product • Can be avoided if it would be too burdensome to produce • Procedure • Request similar to interrogatories or deposition notices served on the other party by mail • Internal Preparation for the Production and Inspection Request • A cost-benefit analysis must be made to determine if you can really analyze all the info you request • Don’t “bite off more than your office can chew” Advanced Civil Litigation Class 11

2. Drafting the Request for Production • The heading should be the same as the complaint, etc. • This can be part of a “combined discovery request. • Use a separate paragraph for each type of document you’re seeking • Some guidelines for drafting the request: • Describe what you want to the extent that a reasonable person would understand what you’re looking for • Organize by type of evidence requested • Include an instruction that the other party explain which documents are being produced with regard to each question • Don’t just let them give you big pile of documents… • Specify that you’re also looking for electronically stored information Advanced Civil Litigation Class 11

3. Getting Ready and Serving the Request • The request must be signed by an attorney for the firm • Preferably the one directing the discovery • The request should be sent by certified or registered mail • Since the request does not have to filed with the court, make sure that you get an acknowledgment of the request. • Don’t send discovery requests by email unless you know and trust your opponent. Emails are too easy to pretend you never got or to alter. Advanced Civil Litigation Class 11

4. Preparing for Production of Documents • Spoliation and the Duty to Preserve Evidence • Destruction of evidence can be a crime or at least contempt of court. Therefore, you should in general: • Have the clients adopt a document retention policy • Inform the client of the duty to preserve evidence • Sent a “litigation hold letter” if litigation is imminent, telling the client’s employees not to destroy or give out documents • Initial Steps—Checklist • Similar to checklist for interrogatories (page 358-359) • Locate Documents/Computer Data • Pull Files and Documents • Converting Paper to Electronic Files (Imaging) • “Pulling” Electronically Stored Information Advanced Civil Litigation Class 11

5. Preparing for Production 2 • Screen Pulled Files and Documents • Objectives of the Screening Process • Identify documents that should be produced • Organize them and classify them • Match documents with the question that requested them • Use a standard numbering system to match each document with the element of the case it is relevant to • Have the Attorney Review the Documents • Extract Privileged and Work Product Documents • Redaction • When turning over electronically stored documents, use formats like a non-writeable .pdf; not something that can be altered by someone else later on. Advanced Civil Litigation Class 11

6. Preparing for Production 3 • Have Documents Copied • Keep the original in the original file; make a copy for the opponent and a copy so that you can have all the documents you turned over in one convenience place • Prepare Documents for Examination • Retrieve the Documents • Return the Documents and Retain Indexes • Quality Control • The firm’s system, whereby every request is indexed and recorded, should be maintained regarding every discovery process • Security • Documents should be kept under lock and key • Electronice documents must be password protected Advanced Civil Litigation Class 11

7. Analyzing the Opponent’s Document Production • Apply the same process discussed earlier regarding: • Making sure you understand which document was produced in reference to which questions • This can help provide context for the document • Review the documents for compliance with your requests. • If the opponent didn’t comply, tell the opponent. If the failure is consistent or repeated, consider moving for sanctions against them • Then, organize them in terms of relevance to your case • Make it easy for someone analyzing each element to find the documents related to that element Advanced Civil Litigation Class 11

8. Request for Physical and Mental Examination • Purpose • Good cause is required- it has to have a strong relationship to an element of the case • Scope • Only a party (or someone under a party’s control) can be forced to submit and only for good cause • Procedure • Set Up the Exam • Draft the Documents • Notification of time and place of exam • Motion for Compulsory Physical Examination if necessary • Inform the Client • Request the Report after the exam- each side is entitled to a copy of the report of any Rule 35 exam Advanced Civil Litigation Class 11

9. Request for Admission • Purpose • To dispense with having to prove facts at trial that there’s no real dispute over; saving the court’s time as well • Procedure • Send a statement of the facts you want admitted, along with supporting documents, if any • Preparing the Request for Admission • Don’t ask compound questions; make every aspect you’d like admitted into a separate question • Responding to a Request for Admission • Must respond within 30 days or it is deemed admitted • You can certainly qualify an admission; admit it partially, etc • Just explain what you’re admitting and what you’re not • You can amend your response if new facts come to light… Advanced Civil Litigation Class 11

10. Objections, Compelling Discovery, and Sanctions • Objecting to Discovery request • You must notice your opponent that you’re not responding because you object; you can’t just ignore the request • Protective Orders • This is a pre-emptive order from the course that certain info need not be turned over because it’s privileged or work product or whatever the grounds are • Compelling Discovery • If a party objects and/or refuses to comply, you can ask the court to force the party to comply by motion • Sanctions • If the party fails to comply with a discovery request or fails to follow a court order, Rule 37 provides that the party can be sanctioned by the court, including: • Striking part of the pleadings, monetary sanctions, etc. Advanced Civil Litigation Class 11

11. The Freedom of Information Act • Definition and Purpose • This requires most government agencies to give out non-classified information to anyone wo requests it • This can be a valuable source of information during the discovery process • There is virtually no limit as to what can be sought • Procedure • There are specific request filing procedures under federal law • Limits • Classified info, internal personnel rules and practices, trade secrets, private party’s confidential info, some law enforcement records, some other types of info protected for national security purposes, etc. Advanced Civil Litigation Class 11

12. Organizing Files • Use cover sheets that indicate the info on the caption on course papers. • Separate file by: • Pleadings • Discovery requests to plaintiff with responses • Discovery requests to defendant with responses • Notices of deposition and transcripts • Motions (use a separate sub file for each motion, including supporting papers • Don’t be afraid to have the same document in many different folders if it’s relevant to different parts of the case • Memoranda of law • Trial record • Appellate documents Advanced Civil Litigation Class 11