Production of Documents/Inspection of “things”

1. Production of Documents/Inspection of “things” February 16, 2011 Advanced Civil Litigation

2. Agenda • Deposition assignment • Document production/ Inspection of “things” • General overview under Federal and California rules • Paralegal role • Preparing for later discovery • Procedures for making request or demand • Compliance procedures • Documents in possession of third parties

3. Requesting Documents and Other Tangible Evidence • CCP 2031: Allows inspection of things in control of a party by making a demand/request • Fed. Rules Civ. Proc. 34—similar to state rule

4. CCP 2031/ FRCP 34 • RELATES TO ITEMS IN POSSESSION, CUSTODY OR CONTROL OF PARTY • INSPECTION (COPY) OF DOCUMENTS • INSPECTION OF TANGIBLE THINGS • INSPECTION OF LAND

5. Document Production: “The Smoking Gun” • Larry Ellison job harassment case • Why it is important • Special problems with ESI

6. Paralegal Role—document production • Organize documents prior to requests • Help draft documents for request • Help locate and produce documents that are requested • Monitor for privileged documents • Maintain privilege log • Maintain production log

7. Review—Do you remember other ways to obtain • Documents in possession of a party? • Documents in possession of a third person? • Public documents?

8. The Way Document Production Works • One party requests documents from other party • Requests must be fairly specific: • All documents sent to Laura Cross after 1/1/2009 • All documents written by Laura Cross after…. • All documents dealing with the IVP procedure of Leo Bradshaw

9. Another example: • REQUEST FOR PRODUCTION NO. 5: Please produce each and every document, if any, containing notes of any conversation during which was mentioned any one or more of the following individuals: • a. Paula Jones; • b. Frank Tappin; • c. Larry Patterson; • d. Roger Perry; • e. Danny Ferguson; • f. Ronnie Anderson; • g. Pamela Blackard; • h. Debra Ballentine; • i. Raymond L. "Buddy" Young.

10. Before you begin • A lawsuit involves 1 million documents. How do you find specific requested documents? • Document Coding • See page 338 in text for database fields • “Predictive Coding” • Read article on Web site

11. Let’s Try It

12. CCP 2031.010 et seq. • Demand to produce/inspect/photograph/ test or sample : • Documents • Photos • Any tangible thing • In custody, control of possession of a party

13. INSPECTION UNDER 2031 • INSPECT • PHOTOGRAPH • TEST • SAMPLE • COPY • MEASURE • SURVEY • BY PARTY OR REPRESENTATIVE

14. The Documents:DEMAND FOR PRODUCTION • FIRST PARAGRAPH: DEMANDING PARTY, SET NUMBER AND RESPONSIDNG PARTY • EACH DEMAND IN A SET TO BE SEPARTELY NUMBERED

15. DEMAND FOR PRODUCTION (C0NT) • DOCUMENTS OR ITEMS TO BE SPECIFICALLY DESCRIBED BY ITEM OR CATEGORY • SPECIFY REASONABLE TIME FOR INSPECTION AT LEAST 30 DAYS IN FUTURE

16. DEMAND FOR PRODUCTION (CONT) • SPECIFY PLACE FOR INSPECTION • SPECIFY ANY RELATED ACTIVITY (I.E. TEST) • SERVE ON ALL PARTIES

17. Let’s take a look • http://www.scefiling.org/filingdocs/215/4790/7131e_ExxDxtoxDCL.pdf • (Santa Clara County Efiling Website—document 720 Antelope Valley Cases)

18. RESPONSE TO DEMAND • MOTION FOR PROTECTIVE ORDER • WRITTEN RESPONS • AGREE TO COMPLY • OBJECT • STATEMENT OF INABILITY TO COMPLY • RESPOND TO EACH ITEM • SIGNED BY PARTY UNDER OATH • SERVED WITHIN 20 DAYS OF SERVICE

19. Let’s take a look • Antelope Valley cases document 694, 688 and 345

20. FAILURE TO FILE WRITTEN RESPONSE • WAIVER OF OBJECTIONS • RELIEVED BY MOTION • DEMANDING PARTY MAKES MOTION TO COMPEL (AFTER MEET AND CONFER)

21. MOTION TO COMPEL FURTHER RESPONSE • CONTESTS OBJECTIONS OR STATEMENT OF INABILITY TO PRODUCE • MADE WITHIN 45 DAYS OF SERVICE OF WRITTEN RESPONSE

22. MOTION FOR COMPLIANCE • MADE AS A RESULT OF FAILURE TO ACTUALLY PRODUCE

23. The Production • Documents • Hire businesses to do this (i.e. Cook and Assoc.) • Set up time and place for inspection an copying

24. Practical Aspects of Document Production: Producing Party • Organize documents • Read and identify documents • Code documents • Create privilege log

25. Documents in custody of Non-party Depostion of Records

26. Why a deposition? • Only discovery allowed against non-party • Nature of this deposition • Not a traditional depo

27. DEPOSITION OF BUSINESS RECORDS-- CCP 2020.020 et seq. • RECORDS NOT IN POSSESSION OF PARTY • DEPOSITION SUBPOENA (JC Form Subp-010 • COMPLIANCE NO EARLIER THAN 20 DAYS AFTER ISSUANCE OR 15 DAYS AFTER SERVICE WHICHEVER IS LATER • Also must comply with consumer records requirement • NO DECLARATION OF GOOD CAUSE REQUIRED

28. DEPOSITION OFFICER • PROFESSIONAL, REGISTERED PHOTOCOPIER • NO FINANCIAL INTEREST IN MATTER

29. DELIVERY OF RECORDS • MADE EITHER AT PLACE OF DEPO OFFICER OR • INSPECTION TAKES PLACE AT OFFICE OF BUSINESS WHOSE RECORDS ARE SOUGHT

30. DELIVERY OF RECORDS, cont • COMPLY WITH REQUIREMENTS OF EVIDENCE CODE 1560 THROUGH 1563 • COMPLY WITH REQUIREMENTS OF NOTICE TO CONSUMER

31. EVIDENCE CODE 1560-63 • CUSTODIAN CAN DELIVER COPY TO DEPO OFFICER WITH PROPER AFFIDAVIT • DEMANDING PARTY MUST PAY FOR COPIES (COST PER PAGE AND PER HOUR FOR PERSON COPYING)

32. CCP 1985.3--NOTICE TO CONSUMER • REQUIRED PRIOR TO DATE FOR PRODUCTION • SERVED AT LEAST 10 DAYS PRIOR TO PRODUCTION AND 5 DAYS PRIOR TO SERVICE ON CUSTODIAN

33. Putting it into practice: • You want a party’s school records—what are your timing and service requirements? • It’s February 16 and your attorney says to get them as soon as possible: • Subpoena Requirements • Consumer record requirements