Teaching Basic Civil Discovery in a Workshop Setting

1. Teaching Basic Civil Discovery in a Workshop Setting Presented byEric Nakano, Voluntary Legal Services Program of Northern California

2. Our First Year of Civil Self-Help • Most customers were defendants in collection cases. • Almost all of the defendants we saw were up against opposing counsel. • Almost every customer had received discovery requests from the opposing counsel. • Very few customers replied to the discovery requests. Many lost their cases as a result.

3. Lessons of the First Year: • Very few customers remembered being told about the discovery process when being assisted with their Answer or Complaint. • Very few customers read the handouts and other materials about discovery that were provided or suggested. • Discovery is one of the most difficult procedural concepts for self-represented litigants because there is almost nothing in popular culture to prepare them for it.

4. Workshop Goals • Self-represented litigants should leave knowing: • What discovery is, and how to recognize discovery requests; • The basic flow of discovery; • The fundamentals of Requests for Admissions, Interrogatories (Form and Special), and Requests for Production/Demands for Inspection. • Where they can find additional information.

5. Starting the Workshop • General overview of the discovery process

6. Introductory concept: Scope of Discovery • “Reasonably calculated to lead to the discovery or relevant admissible evidence.” (fishing analogy) • Concept of privilege should be introduced.

7. Suggestions • Be sure the customers know, as early as possible, that all sides in a lawsuit can use discovery to get evidence from any other party. • It is better if customers attend the workshop before they receive discovery requests. • Have fun. This is a long workshop. Anything that keeps customers attention and aids in retention is good.

8. Request for Admissions • These are the most lethal form of written discovery to self-represented litigants. • Disc-020 is an optional form.

9. Admissions Key Concepts • Purpose • Deadline • Effect of non-response • All requests must be for a single fact that can be answered "Admit" or "Deny"

10. Request for Admissions • The caption is just what you’d expect. • The concept of the “Asking” or “Propounding” party can be re-iterated. • The middle signature line is part of the instructions.

11. Attachment 1 and 2 • Suggest that each request be prefaced by “Admit that” • Only one fact can be in each admission. Look out for “and” “or” periods, semicolons, etc.

12. Responding to Request for Admissions • Introduction to the caption on pleading papers. • Possible responses: • Admit • Deny • Unable to admit or deny • Objection • Verification

13. Interrogatory Key Concepts Purpose Deadline Effect of non-response Interrogatories are either Form Interrogatories or Special Interrogatories

14. Form Interrogatories • Overview • Completing the forms • Caption • Signature line is part of instructions, so is not signed • Definition of INCIDENT • x.0 items are headings, not questions • 15.1 and 17.1 are particularly useful/difficult

15. Responding to Form Interrogatories • Typically on pleading paper • Numbered and answered in the order asked • Verified

16. Special Interrogatories • Typical pleading caption • Multiple “right ways” to format/phrase • Words in all capitals specially defined • Can be used to replicate Form Interrogatory 15.1 and 17.1 in limited civil cases

17. Responding to Special Interrogatories • Format is identical to responding to Form Interrogatories, except for the numbering sequence • Numbering errors in Special Interrogatories is common but not a problem when answering • Verified

18. Request for Production • This is one of the more difficult types of discovery for self-represented • No Judicial Council form • Phrasing of categories of document or things is often very challenging to self-represented litigants

19. Category Suggestions • Category must be clear and defined • Suggest limiting the scope with “non-privileged,” date limits, account limits, etc. • “Any non-privileged documents identified in your response to the [Form Interrogatories/ Special Interrogatories] served with this Request.” • “Any documents that you intend to produce at trial,” is objectionable on work-product grounds

20. Responding to Request for Production • Both a verified written response and production are required • Written response specifically states that the production will be allowed, or identifies what is not being produced and why • A diligent search and reasonable inquiry are required

21. General Tips on Requests for Production • Timing of the request • Can be very powerful when combined with interrogatories • Written response is independent of time for actual production • Production is of originals unless otherwise agreed upon • Cost of production is borne by the asking party

22. Limits on Quantity • Amount of discovery depends upon whether the case is limited or unlimited • Likewise, the remedies for excess in a limited case differs from excess in an unlimited case

23. Final Suggestions • Reiterate the purpose • Sometimes finding out what the other side doesn’t have is more useful • Example of exclusionary/ in limine motion before trial • Example of using to impeach at trial

24. Remedies • “Meet and confer” • Motion to deem facts admitted • Motion to compel responses • Motion to compel further responses • Motion for sanctions • Terminating • Issue • Handout summarizes

25. Other resources • Win Your Lawsuit by Nolo Press, Chapter 10 (Self-Help Section and NetLibrary) • California Practice Guide: Civil Procedure Before Trial by The Rutter Group, Chapter 8, (KFC995.W45 v.2) • CEB Action Guide- Obtaining Discovery: Initiating and Responding to Discovery Procedures (KFC 1020.Z9 T53 or OnLaw) • CEB Action Guide- Creating Your Discovery Plan (KFC 1020.Z9 C74 or OnLaw)