Discovery Methods

Discovery Methods Feb. 25

Review • 26 a – automatic disclosure rules – obligation to automatically disclose witnesses/documents you plan to use to support a claim or defense • 26 b(2)- defines general material discoverable and general limits to discovery

CB problems 417-418 (reviewing automatic disclosure rules) • 1. Your client, Baker, gives you a state court complaint from a state w/the same discovery rules as fed’l rules. The plaintiff, A, alleges that B agreed to sell her his car and then refused to go through with the t/a. A seeks damages. B tells you that he and A discussed the sale but never agreed. B says no one witnessed their discussions. Your answer denies the contract • What information would you have to prepare for automatic disclosure • What info would you expect A to disclose to you

Informal discovery • Why would you do discovery outside of the formal discovery process? • What kind of informal discovery might you do (e.g. in a car wreck case; or in a products liability case)?

Cross examination based on internet research • Customer Service manager testimony: “ Sta-Rite is a family owned business in Delavan Wisconsin?” • Q: Is it still family owned? • A: No • Q: Is it listed on the NY Stock Exchange? • A: Yes • Q: Besides Wisconsin, where does Sta-Rite have manufacturing facilities? • A: Oxnard, Calif • The good stuff will come in class

Discovery Devices • Interrogatories (R. 33) • Depositions (R. 30 & 32 ) (Note – never see depo on written ?s) • Requests for Production (R. 34) • Requests for Admissions (R. 36) • Requests for Medical Exam (R. 35 – after spring break)

Interrogatories • What are they? • What kind of information should you use them to obtain? • Who drafts the interrogatories? Who drafts the answers? • Who signs them? • What are advantages/disadvantages of this discovery device? • Why does the rule limit the number you can send without getting the court’s permission?

Interrog hypos • In Anderson v. Grace & Beatrice, could Grace serve Beatrice with interrogatories? • In Anderson v. Grace, would it be proper to address the interrogatories by Grace to Anderson as: to: Jan Schlictmann?

Objections (apply to interrogs & rfps) List of common objections – see Rule book 661-62 What if an interrogatory asks for some information that you believe is objectionable. Can you properly object and refuse to answer the entire interrogatory? Is it proper to simply state: “objection”. If your opponent does this, what should you do? Is it proper to state: “Objection this calls for an application of law to fact and is outside the proper scope of discovery” What do you do if your opponent completely fails to answer?(hold til sanctions section)

Interrogatory hypos • Assume that you answer an interrogatory fully but later discovery that your answer was incomplete or incorrect. Do you need to do anything? • Assume you get the following interrogatory: Identify all instances in the past five years in which officer x has charged an arrestee with resisting arrest. To determine the answer to this, you will have to pour over all arrest records from Officer X. Can you simply provide your opponent with the records? Tactically, is this a good idea? Why/why not?

Sample interrogatories – what is the plaintiff looking for here? • Please list all accidents involving Defendant Parcells within the past five (5) years. For each such accident, please include the name and address of any driver of 's vehicle involved, the name and address of any other driver involved, the court and case number of any action that resulted, and the result of each such action. • Please state the extent of Defendant Baltimore Masonry’s knowledge of Defendant Parcells’ driving history. • State whether Defendant Parcells was acting as the agent, servant or employee of Defendant Baltimore Masonry at the time of the occurrence.

Requests for Production • What are they? • Who may send them? • Who may be served with them? • What kind of information would you use them to discover? • What are advantages/disadvantages of using them?

RFP • Assume that the case involves an exploding tire. What discovery device should the defendant use to get plaintiff to produce the tire in question? • In A Civil Action, when Schlictmann wanted to inspect Grace & Beatrice’s land, what discovery device did he use?

RFP hypos • In A Civil Action, defendants send a request for production to plaintiffs seeking all their medical records. Those records are in the hands of plaintiff’s doctors. Can they refuse to produce them because they don’t actually possess them? • In ACA, assume Schlictmann asks for the EPA reports (defendants have copies of these). Can the defendants refuse to produce them because Schlictmann can get them directly from the EPA? • If Schlictmann wanted to get the report directly from the EPA what discovery device would he use?

RFP to Sta Rite (swimming pool drain cover manufacturer) • Produce any documents you have involving other accidents allegedly caused by alleged defects in the manufacturing or warnings on your drain covers. • Response: See attached documents involving two other incidents. • Sta-Rite has a documents from 9 more suction entrapment cases either involving it or its predecessor corporation. However, those entrapment cases did not involve drain covers per se – some involved metal grate coverings, others involved pumps manufactured by Sta-Rite that failed to automatically shut off. Did Sta-Rite have to disclose those cases based upon this discovery request? • How could you better draft the discovery request? – WRITE IT

CB problems p. 423 • A sues Village claiming officers assaulted her and her leg was severely injured as a result. Village attorney finds a photo of A taken the night after the incident showing her participating enthusiastically in a local dance contest. • Attorney does not want to disclose photo until cross examining A at trial. Must def produce the photo as part of the 26(a) disclosures? What would Village’s possible defense strategies be and what role might the photo play in each of them? • What risk does Village run if it does not disclose the photo (R. 37c1)

CB p. 423 • Assume photo not disclosed initially and thereafter A makes a 34 request for “all documents, memo, reports relating to the incident” Must Village now produce the photo? • Assume photo produced in response to this discovery request. Can A seek sanctions for failure to initially disclose? If so, what kind of sanctions? (See R. 37c1) Can City argue failure to disclose initially is harmless

CB problem • R sues for damages after being injured in an accident with a truck owned and operated by C. R believes C’s truck was serviced at E’s Garage and wants the service record. R believes E’s Garage will not voluntarily produce it. What steps can R take to get the service records?

Requests for Admission • What are they? • Who sends them? • Who may you send them to? • Why use them? • What are the advantages/disadvantages of this form of discovery? • What happens if a party fails to respond to Requests for Admissions?

CB p. 424 • Can p send a R. 36 request for admission that states: • 1. Admit there was a contract btwn plaintiff and defendant for the sale of 1000 blond wigs for a total price of $20,000. • 2. Admit that the contract stated the wigs were to be delivered to plaintiff on March 1, 2008 • 3. Admit that the defendant failed to deliver the wigs as per the contract on March1, 2008.

Q 2 p 424 G is injured on a scout outing when he stumbles on a tent wire after returning from a late night raid on a campsite of another troop. He sues the Boy Scouts. A young boy tells defense counsel he saw 4 other boys trip over the same wire. P. serves a Request for Admission: Admit that prior to the incident that is the subject matter of this suit, 4 boys had stumbled on the same wire as the wire plaintiff stumbled on. Must defendant admit this fact Assume defendant admits the fact above and one of the other trippers sues. Is the admission binding on the defendant in that lawsuit?

Interrog v. RFA • What is the difference between the effect of an interrogatory asking the defendant some question and a request for admission asking the same thing?

Deposition • Who may be deposed? • What must you do if you wish to depose someone? • What do you do if you want to depose a non party and want that non party to bring documents to the deposition? • What must you do if you want to depose a party and want the party to bring documents to the deposition?

CB problems • After initial disclosures, P again seeks to depose the officer and e’ees. S objects believing that w/out more groundwork, these depos will prove a waste of time and expense and will have to be repeated later. C an S refuse to attend the depos and avoid sanctions on the ground that P should first have built a strong foundation for an efficient use of deposition time? If not, what can S do? See 26b2 and 26c

Depo questions How do you ensure witnesses attend a deposition? When is it proper to instruct a witness not to answer a deposition question (p. 580) Why should you submit the deposition to the witness, have her read it and sign it? What are advantages/disadvantages to depositions?

Depo questions How many times do you usually get to depose a witness? What do you do if you don’t know who in a corporation to depose about a particular subject matter (e.g. who would have the relevant information about the corporation’s hiring practices)?

How it works • Co-ordinate date • Send notice • Your office • You choose seating • Court reporter • Swear witness • Ask ?s • Opponent asks if she wants

Depo excerpts • Hospital ceo depo • http://www.youtube.com/watch?v=m2r5X-2_IGc • Old lawyers fighting depo • http://www.youtube.com/watch?v=td-KKmcYtrM

Discovery Methods