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Advanced Civil Litigation

Advanced Civil Litigation. Joanne Hames Winter 2014. Introduction. California Supplement Douglass Financial Services Case Class Website: www.deanza.edu/faculty/hames. Advanced Civil Litigation. Civil Lit A: Jurisdiction, pleadings, motion

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Advanced Civil Litigation

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  1. Advanced Civil Litigation Joanne Hames Winter 2014 (c) Joanne Hames

  2. Introduction • California Supplement • Douglass Financial Services Case • Class Website: • www.deanza.edu/faculty/hames (c) Joanne Hames

  3. Advanced Civil Litigation • Civil Lit A: Jurisdiction, pleadings, motion • Civil Lit B: Proving the case: Investigation, Discovery and Trial (c) Joanne Hames

  4. Pre-discovery Procedures • Preliminary investigation by each side • Pleadings filed and served • Summons & Complaint • Answer (or Demurrer or Motions) • Cross Complaints and Answers • Case management or other conferences • Possible ADR (c) Joanne Hames

  5. Preliminary Investigation • Client Interview • Locating and interviewing fact witnesses • Locating and interviewing expert witnesses for your client • Investigating all expert witnesses (c) Joanne Hames

  6. The Client Interview • Be Prepared • Find out as much about case as possible before • develop interview form or checklist • Bender Forms of Pleading and Practice • Determine Location • Gather forms for client signature • Retainer Agreement • Releases (c) Joanne Hames

  7. Client Interview, cont • Run conflict check prior to interview • Paralegal Role • Note taking • Written memorandum (c) Joanne Hames

  8. Client Internet Social Networks Commercial Internet Sites accident reports court records DMV Friends/neighbors telephone book county assessor/recorder Ambulance co. Advertisements If a corp: Secretary of State Locating Fact Witnesses/Defs (c) Joanne Hames

  9. Court Records • PACER • Federal court documents • California Courts • Individual Court Web sites • Lexis/Westlaw (c) Joanne Hames

  10. Interview Techniques • Always Identify yourself and who you represent • Prepare ahead of time: have form or checklist • Avoid leading questions • Take copious notes or with permission, record (c) Joanne Hames

  11. After the Interview • Prepare statement for witness signature • Prepare memo summarizing findings and observations. • Statements under penalty of perjury • Not admissible at trial except to impeach (c) Joanne Hames

  12. Rules of Evidence • Importance to investigation, discovery and litigation • Different rules apply • Litigation: Must follow all rules of admissibility and be relevant • Discovery: Must be relevant and not privileged • Investigation: Anything goes (c) Joanne Hames

  13. Evidence • How you prove your point • witnesses • records • documents • exhibits • objects • photos (c) Joanne Hames

  14. Evidence • Direct: evidence the witness personally observed; if believed it proves your point • circumstantial: evidence from which an inference can be drawn (c) Joanne Hames

  15. FORMS OF EVIDENCE (c) Joanne Hames

  16. Rules of Evidence • Federal: In Federal Rules of Evidence • State: California Evidence Code • Very similar (c) Joanne Hames

  17. Relevance • All evidence must be relevant • tends to prove the point you are using it for • Not all relevant evidence admissible • privileges • probative value outweighed by prejudice of time (c) Joanne Hames

  18. Documentary Evidence • Authentication/foundation • document is what it purports to be (photos, writings, etc.) • Self-Authentication: • certified copies of public documents/judicial notice • Best Evidence rule (c) Joanne Hames

  19. ESI • Electronically Stored Information • Information created or stored in electronic format, including computer generated documents, email, web pages and the like. • Law is in transition (c) Joanne Hames

  20. Hearsay • Generally discoverable • Inadmissible at trial unless it comes under one of the many exceptions. • Out of court statement used to prove the truth of the matter asserted. • Exceptions: • State of mind • excited utterance • business records -declaration against interest impeachment (c) Joanne Hames

  21. Privileges • Attorney/client • doctor/patient • clergyman/pentitent • trade secrets • government secrets • Constitutional privileges • Work Product (c) Joanne Hames

  22. Expert Witnesses • Purpose: Can give an opinion in their area of expertise • Paralegal Role: • Locating Experts • Interviewing • Researching credentials • Researching prior litigation (c) Joanne Hames

  23. Preserving Evidence • Integrity of evidence must be preserved • Evidence log • Preserving potential ESI • Litigation holds (c) Joanne Hames

  24. SCOPE OF DISCOVERY-Relationship to Rules of Evidence • ALL RELEVANT INFORMATION Admissible evidence or evidence that might lead to admissible evidence • NOT OTHERWISE PRIVILEGED (c) Joanne Hames

  25. Paralegal Role • Preparing for discovery/disclosure • Drafting discovery requests • Responding to discovery requests • Client interviews • Document reviews (relevancy & privilege) • Reviewing/summarizing discovery responses • Drafting and responding to motions • Integrating discovery into case management software (c) Joanne Hames

  26. State v. Federal • California— • CCP §§ 2016.010 et seq • California Rules of Court • Case Law • Federal • Federal Rules of Civil Procedure • Local Rules of Court • Case Law (c) Joanne Hames

  27. Methods of Discovery • Disclosure (Federal Only) • Interrogatories • Depositions • Requests to Produce • Medical Exams • Disclosure of Expert Witness Information (c) Joanne Hames

  28. Disclosure v. Discovery • Disclosure • Federal Court Only (Rule 26) • Automatic exchanges of information • Discovery • Both state and federal courts • Not automatic—requires a request (c) Joanne Hames

  29. PROPOUNDING PARTY--REQUESTING PARTY RESPONDING PARTY DOCUMENTS NOT FILED WITH COURT PROPOUNDING PARTY KEEPS ORIGINALS DISCOVERY IN GENERAL (c) Joanne Hames

  30. Forms of Discoverable Information • Testimony of Parties • In writing • Personal questioning (depositions) • Testimony of Witnesses • Personal questioning • Documents • Evidence Code Definition • ESI • Electronically stored information (c) Joanne Hames

  31. E-Discovery • New aspect of traditional discovery • Electronic documents • Hardware used to create electronic docs • New Federal Rules of Civil Procedure (2006) • New State Codes—California Electronic Discovery Act (2009) • http://www.nixonpeabody.com/publications_detail3.asp?ID=2815 (See California e-discovery….) (c) Joanne Hames

  32. Scope of Cyber Evidence Digital vs. Non-Digital Digital Non-Digital • Over 93 percent of all information generated in 1999 was in digital format. (In Re Bristol-Myers Squibb Securities Litigation 205 F.R.D. 437, 440, fn2 (2002) [citing UC Berkeley Study]) (c) Joanne Hames

  33. What is potential digital evidence? • User-Created Files • Address Books • Email files • Audio/Video files • Image/graphics files • Calendars • Internet bookmarks/favorites • Database files • Spreadsheet files • Documents and text files (c) Joanne Hames

  34. What is potential digital evidence?User-Protected Files • Compressed Files • Misnamed files • Encrypted Files • Password-Protected Files • Hidden Files • Steganography (c) Joanne Hames

  35. What is potential digital evidence?Computer Created Files • Backup files • Log files • Configuration files • Printer spool files • Cookies • Swap files • Hidden files • System files • History files • Temporary files (c) Joanne Hames

  36. Where do I look for it? (c) Joanne Hames

  37. Where do I look for it? (c) Joanne Hames

  38. Where do I look for it?Hardware • Stand alone computers vs. Local Area Networks • Wired vs. Wireless • Printers • PDAs; i.e.. Palm, Handspring, CIE • Digital Cameras • Scanners (c) Joanne Hames

  39. Where do I look for it?Storage • Hard Drives • SCSI and EIDE • USB and FireWire • Floppy Disks • LS120s • Iomega media, i.e.. Zip, Jaz, Peerless • Memory Sticks (c) Joanne Hames

  40. Where do I look for it?Storage (cont’d) • CDs • DVDs • Backup Tape (c) Joanne Hames

  41. Data StorageHard Drives Data is stored on the surface of a platter in sectors and tracks. Tracks are concentric circles, and sectors are pie-shaped wedges on a track, like this: (c) Joanne Hames

  42. Data StorageFloppy Disks The computer program passes an instruction to the computer hardware to write a data file on a floppy disk, which is very similar to a single platter in a hard disk drive except that it is spinning much slower, with far less capacity and slower access time. (c) Joanne Hames

  43. E-Discovery Issues • Does it exist • Is it discoverable • Who pays for the discovery • Is it admissible at trial (c) Joanne Hames

  44. Is ESI discoverable? • Rule 26 expressly includes ESI as being subject to disclosure and discovery • Relevant—or leads to admissible evidence (c) Joanne Hames

  45. Cost • Often a contentious issue • Court ultimately can decide • Zubalake cases (c) Joanne Hames

  46. Discoverable Information: Admissibility at trial • Discoverable does not equal admissible • Requires foundation • Authentication • Best evidence rule • reliable (c) Joanne Hames

  47. MUTUAL DISCLOSURERULE 26 • INITIAL DISCLOSURES • DISCLOSURE OF EXPERTS • PRETRIAL DISCLOSURES (c) Joanne Hames

  48. PRETRIAL DISCLOSURES • NAME, ADDRESS, PHONE OF EACH WITNESS AND WHETHER THEY WILL BE CALLED • WITNESSES THROUGH DEPOS AND COPY OF TRANSCRIPT • IDENTIFICATION OF EACH DOCUMENT OR OTHER EXHIBIT TO BE OFFERED (c) Joanne Hames

  49. INITIAL DISCLOSURES • NAME, ADDRESS, PHONE OF ANYONE LIKELY TO HAVE RELEVANT AND DISCOVERABLE INFO. • COPY OR DESCRIPTION OF ALL DOCUMENTS OR OTHER TANGIBLE THINGS IN PARTY’S CONTROL (c) Joanne Hames

  50. INITIAL DISCLOSURES (CONT.) • COMPUTATION OF DAMAGES CLAIMED • COPIES OF INSURANCE AGREEMENTS • See File: Initial Disclosure….. (c) Joanne Hames

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