CIV LIT PARA 97(B) MIDTERM STUDY GUIDE

DISCOVERY

Make sure you understand what the different discovery tools are used for, and how they function.

As for dates: know when a π and when a ∆ can begin to propound; the rules are very consistent there. Also know the different timing for depositions AND the timing for expert witness testimony, motions regarding expert witnesses, and motions to compel. Use your cheat sheet for the dates.

Rules require disclosure of certain information without waiting for discovery request; however, specifics can be altered by stipulation or court order

Before making disclosure, party has an obligation to make reasonable inquiry into facts of the case

o Party is then required to disclose: All information, not privileged or protected, then reasonably

available Party not relieved of duty by failure to investigate, or by other

party’s lack of diligenceo Initial disclosures:

Without waiting for request, must disclose: Names addresses and phone numbers (contact info) of

individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses

o Does not extend to impeachment material Copies or descriptions of documents in disclosing party’s

possession that may be used to support claims or defenses

o Not impeachment material

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In some cases: computation of damages, and the bases for

Copies of insurance agreements Timing: 14 days after initial meet and confer (where

further discovery is planned)o Disclosure of expert testimony

Identity, contact info, of any expert expected to be used at trial Report, signed by expert witness, with: qualifications, opinion,

and basis 90 days before trial

o Pre-trial disclosures At least 30 days before trial:

List of witnesses you expect to call at trial; Witnesses who will be called “if need arises” List of witnesses whose testimony will be presented by

deposition tx; copy of relevant portion of tx List of documents and exhibits to be used at trial

Within 14 days after disclosure: Party may serve objections to use of depositions at trial;

and, Object to exhibits and documents

Scope of disclosureo General rule:

Discovery may be had of: Any matter not privileged, that is relevant to the claim or

defense of any party Includes: identity of persons having knowledge of

relevant facts Information need not be admissible at trial: only that it

may lead to admissible evidence

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CA has a more liberal standard: information must be relevant to the subject matter involved in the pending action

o Work Product: Fed Court: that which an attorney or his agents make in

anticipation of litigation; As stated: only discoverable upon a showing substantial need

to avoid undue hardship CA has Work Product and qualified Work Product

For pure work product, CA has an absolute ban on discovery. Includes:

o Impressions;o Conclusionso Legal opinions

Qualified work product: may be discoverable upon a showing that denial of discovery will unfairly prejudice a party in preparing his claim or defense, or will result in injustice

o Includes draft reports of expertso Reports made in anticipation of litigationo BUT: attorney client privilege protects the actual

communications between attorney and expertso Trial preparation materials:

Work product is typically off limits Unless party can show: substantial need to avoid undue

hardship Still cannot get: mental impressions, opinions, and

conclusions]]o Experts

Testifying or consulting experts Testifying: opposing parties allowed to depose experts

who will be called at trial

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Consulting: those who were called in anticipation of litigation but not testifying:

o Opposing party can get only upon showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means

o In CA: a party need not disclose consulting expertso Protective orders

May be obtained to limit nature and scope of examination; or To terminate discovery when discovery has been abused.

o Privileged information When withholding information by way of privilege, the party

must assert what privilege, and what it coverso Supplemental discovery

FED: Duty to supplement required disclosures if attorney finds out that information disclosed was materially incomplete or incorrect

Applies to experts and their reports Extends to prior responses to interrogatories; requests for

production; and requests for admission CA: there is no general duty to supplement discovery

But an ethical duty to correct any errors that come to light

And must supplement when proper request is madeo Types of Discovery:

Oral deposition of witnesses, including party witnesses Deposition of witness upon written questions Interrogatories: only to parties Production of physical material: requests for production Requests for admission

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When a party’s physical or mental condition is “in controversy”, examination of party by recognized practitioner, approved by the court

o Using a deposition at trial (or a hearing) Subject to the rules of evidence:

When deponent becomes a witness (explain), deposition testimony can be used to impeach while on the stand

For any use if deponent is unavailable:o Dead, sick, too old to travelo Too far from court

FED: 100 miles CA: 150 miles

For any purpose if the deponent is an adverse partyo Enforcing discovery

Motion to compel and for sanctions When one party fails to provide, or otherwise does not

satisfy discovery, the opposing party moves the court (noticed motion) for an order compelling disclosure

If party still fails to comply, court may:o Order the matters be treated as admitted; oro Prohibit the party from supporting or opposing

designated claims for defenses; oro Strike pleadings; stay or dismiss the action; or

render a default judgment; oro Hold the delinquent party or witness in contempt

From money fines to incarceration Discovery sanctions

o FED: Immediate sanction

If party fails to attend his own deposition, or fails to provide any

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answers to rogs, a party may move for immediate sanctions

Automatic sanction Rules provide for automatic sanctions

against a party, who, without substantial justification, fails to disclose required information

Party cannot use any withheld information at trial, at a hearing, or in a motion;

Court may inform jury of failure to provide information; and

Court may assess costs, including attorney’s fees (hundreds of dollars an hour)

o In CA: sanctions for: Failure to respond; Unmeritorious objections to discovery; Disobeying order to provide discovery Money is standard sanction in CA

o Pretrial conferences FED: has mandatory meet and confer and mandatory discovery

plan submitted to court; CA: no requirement to meet and confer, but has become such

standard practice that it would be irresponsible not to And note Fast Track

Case management CA Court must hold initial case management conference

within 180 days of filing the complainto CA now has Fast Track

Order to the courts to clear dockets ASAP

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Imposes short deadlines on certain procedures and requires pretrial case management conferences to ensure diligence by the parties

Know the basic stuff for Respondeat Superior below:

Respondeat Superioro VL o Superior is liable for the torts committed by employees in the normal

course of businesso Frolic v. Detouro IC

Joinder is probably the most difficult part; spend some time getting this straight.

Joinder of Partieso Bringing together different parties into one law suito Compulsory and permissiveo Compulsory

Must be joined, if: The party’s presence is required to grant complete

relief; or The party has an interest in the action that must be

protected; or The party’s absence may expose other parties to double

obligations These are then ‘necessary parties’

If one or more necessary parties cannot be joined, the case will be dismissed, w/out prejudice

o Permissive Joinder When there is a legal or factual relationship between the

parties, making it sensible Can Join if:

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o Party has a in interest in the property or controversy

o Class actions Individuals may be allowed to opt out of the

class and bring suit independentlyo Relief can be sought separately or jointly

Joinder of claimso A plaintiff can join any number and type of claims against a ∆;o With multiple π’s or multiple ∆’s, it is essential only that at least one

of the claims arises out of a transaction in which all were involvedo Successive claims

Allowed: ex: a plaintiff joins two claims when success on the first is a prerequisite to the second

Suit for money damages and a suit to set aside a prior conveyance as fraudulent b/c of the debt on the prior claim

o Class actions Named representatives allowed to sue on behalf of a class, if:

Class is so large that joinder is impracticable; There are questions of law or fact common to the class; The named parties interests are typical of the class; The named representatives will ensure fair and

adequate representation of the interests of the class; and:

o Any of the following:o Risk of inconsistent results; oro Injunctive or declaratory relief is appropriate to

the class as a whole (civil rights cases); oro Common questions of law or fact predominate

over individual issues. Party changing during law suit:

o Death: many claims die with the litigant, but not all

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Wrongful death claim survives; pain and suffering typically do not

o Transfer of a party’s interest With court approval, a new party can be substituted into a

lawsuit: original party transfers claim to new party Intervention by a new party

o When an outside party voluntarily enters a lawsuito Someone not named in the suit may become a party if he has an

interest in the outcome of the caseo Can intervene on π’s or ∆’s sideo b/c it is voluntary, compulsory and permissive are a bit different here

compulsory, here, means the court must allow the intervenor, if:

interest in the property or transaction; that interest would be substantially prejudiced in his

absence permissive

at court’s discretion, if:o a clear, direct, immediate interest (In CA: indirect

and consequential will defeat intervention); ando intervention will not complicate the issues; ando reason for intervention outweighs opposition by

existing partieso Intervention procedure:

Timely application filed with court seeking leave or permission By noticed motion or ex parte

Due diligence requirement to keep out frivolous petitions Copies of a “proposed intervention” filed with motion

CONFUSION IN NOMENCLATURE o CA CALLS CROSS CLAIM CROSS COMPLAINT; IS ACTUALLY CROSS

CLAIM; NOT CROSS COMPLAINT COMES FROM PROCEDURE USED IN CA, BUT DO NOT BE CONFUSED.

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o Cross claim: By a defendant against a co-defendant: brings that party into

the case Confusion comes from the procedure: defendant files a cross-

complaint against his co-defendant; Interpleader:

o Stakeholder has property of some sort; wants resolutiono Two or more parties claim an interest in that property;o The stakeholder deposits the property with the court;o The competing parties go to trial;o The property is distributed in accordance with result of trialo Prevents a stakeholder from being subject to multiple liabilityo Think: insurance company and two people claiming life insurance

policy

Impleader is difficult, largely b/c of the nomenclature; good to use the cheat sheet here:

Impleader (third party practice) Δ wants more Δ’so A defendant may implead a nonparty who is or may be liable for any

part of a judgmento Claims for indemnity

Indemnity: duty to make good any loss, damage, or liability incurred by another

Think: insurance companyo Non-indemnity claims

Original defendant becomes third party plaintiff: Plaintiff because he is dragging someone new into the

suit, and that someone new had no previous commitment to indemnify

Original defendant is saying: this guy should be paying some of this

o Impleaded party responds:

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After being joined, the impleaded party is now a third party defendant

He can assert any defenses to the original plaintiff’s claim; and/or

He may assert any defenses against the third party plaintiff (the original defendant)

PARA 97 CH 12 GREEN

INTERROGATORIES

Interrogatories are written questions propounded by one party to another party

Timing:o π

10 days after defendant is served; or 10 days after ∆ appears in action: whichever date is first

o ∆ may propound discover as soon as he receives the complainto Counting backward from initial trial date:

Non-expert witness discovery: 30 days before Motions concerning discovery: 15 days before

Two General types:o Form rogs: judicial counsel form interrogatories

Cover the basics; many specializedo Special rogs: written on pleading paper;

Propounding party and responding party Limited to 35

But: parties stipulate to more; Court grants more with request and good cause Classifying case as complex allows for more

3 specific typeso Contention rogs

To elicit information about opponents allegations/defenses Their ‘contentions’

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o Fact rogs For objective facts; basic stuff typically covered in the form

rogso Document rogs

To identify documents; Later, you will make a request for production to get copies of

the documents Pros

o Cheap; reusableo Can be very detailedo Responding party has time to find info\

Conso Lots of objectingo only to parties in the lawsuit

page look: ex terms are typically defined – ad nauseum No compound, conjunctive, or disjunctive questions

o Compound: 2 separate questionso Conjunctive: ando Disjunctive: linked with or

No subparts Sets

o Each new act of propounding is a new set, but the numbering stays sequential

Declaration for additional discoveryo Set out verbatim in Discovery Act Code of Civil Procedure

Basic statement that disco is needed, not being used to harasso Perfect model in CH 5 white binder

Servingo Typically not filed with courto Served with POS on all parties to action, not just the responding

party

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Respondingo You have 30 days

Very bad to miss: untimely waives all rights to object or claim privileges

o Format specifico Perfect model in CH five white binder

Answeringo Be literal, specific, and narrowo If question is vague:

Object, define what you ‘think’ they meant, respond to that Objecting

o Information is privilegedo Exceeds scope of discoo Burdensome/oppressiveo Unless properly proposed, stop answering at 35 – you do not get to

chooseo The CEB has a list of objections with case names and statute cites

Challenging objectionso Incomplete or evasiveo Things/docs too vague o Objections that are not supportableo When that fails: motion to compel and sanctions

CIV LIT PARA 97B CH 13 GREEN

DEPOSITIONS:

Oral question and answer sessions in which an attorney questions a deponent who answers the questions under oath.

o Court reporter creates tx;o Tx may be used as evidence at trial or in arbitration;o Not limited to parties

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Timingo Different than other discoveryo Most discovery requests can be made by π 10 after ∆ is served;o For depositions, π wait 20 days before ‘noticing the ∆’s deposition’o ∆ may notice π’s deposition as soon as he receives complainto Discover not related to expert witnesses must be completed 30 days

before initial trial date; motions concerning discovery must be heard on or before 15th day prior to initial trial date

These dates are altered by stipulation and court ordero Depositions of expert witnesses must be taken on or before the 15th

day before initial trial date Motions concerning expert witnesses must be heard on or

before 10th day before initial trial dateo CH 5 White has excellent discovery deadlines chart

Proso Not limited to partieso Can require deponent to produce tangible things/documents

SDTo Spontaneous testimony, immediate follow-up questionso Good test for witness worthyo Nails down story in detail

Easy to impeach latero Unlike interrogatories, can inquire about the contents of documentso Preserves testimony for use at trialo Moves parties toward settlement

The reality check factor Cons:

o Very expensiveo Deposing party pays for his own attorney; court reporter’s time; tx

copieso Deponent’s have bad memorieso Educates the opponent

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Depo types and procedureso Limited to seven hours, with several exceptions to extend, but only 7

hours in any given dayo Fed: limit of 10 depo’s; and 25 rogso CA: no limit on depo’s; party must move for protective order

(remember: 35 special rogs; 35 RFA’s)o Limits can be expanded by

Stipulation Court order Filing complaint as complex

o Depo of party, appearance only 10 days notice; try to arrange with opposing counsel Location must be within 75 miles of deponent’s residence; or In the county of the action and 150 miles of dep’s res Schedule court reporter Notice of Taking Deposition

The notice advises all parties of the specifics Perfect model at 5-11 White Service of Notice of Taking Deposition

o Not filed with court; served on all partieso Send copies of POS form to all parties and

attorneyso Depo of party with Demand for Production of Docs

Materials and documents to be produced are specified in the Notice of Taking Deposition

Caption includes “Demand for Production of Documents for Inspection and/or Copying”

Same serviceo Depo of non-party; appearance only

Deposition for Subpoena for Personal Appearance (Jud Council form)

Copy of form in White binder at 5-19

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Service: CATCH: must be personally served Explain to friendly witnesses that this is necessary Prepare a check top cover witness fees and mileage

($35/day) Prepare same attorney service as for complaint, but now

check box for “Depo Subpoena” Serve all attorneys of record

o Depo of non-party for Appearance and Prod of Docs Used for custodian of records depos

For med recordso Serve a Deposition Subpoena on the Hospital: o Mandatory Jud Council Form: “Depostion

Subpoena for Personal Appearance and Production of Documents and Things”

o For any personal consumer records: The consumer must be served with a

‘Notice to Consumer” Mandatory Jud Con Form

The custodian of records must be served with proof that the consumer was served the Notice to Consumer

Will want to extend time for notice: give more than 10 days

Get court reporter Notice:

o “Notice of Taking Deposition and Demand for Production of Documents”

Deposition Subpoena for Personal Appearance and Production of Documents and Things” Mand JCF

Attach page listing in detail the desired docs/things Service

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If not subpoenaing personal records of a consumero Service of subpoenao Serve all attorneys

If you are going for personal consumer records: “Notice to Consumer or Employee and Objection” Mand

JCF Alerts person how to object to production 10 days before production date in subpoena Fill out first half of form; second half is for party to

object POS

The Notice of can be served by mail Standard POS process with copies for records

o Certificate of compliance with CCP §1985.3(b)(1) Serve the witness with certificate Is done on pleading paper: certificate of compliance as title Is another step to limit abuse

o Serving the consumer Send original Notice to Consumer and copy Depo Subpoena

o Serving attorney of record Copies of both of the above

o Serving the witness 5 days after Notice to Consumer is served Copy the Notice to Consumer; the Cert of Compliance

(original); Depo Subpoena; Include check for time and mileage Paperclip together and give to service

POS by service

CIV LIT PARA 97B CH 14 GREEN

Inspection Demands

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Written request, served only on partieso But remember, at a deposition, you can compel a non-party to

produce docs and things What:

o Documents by the opposing party for inspection and copyingo Tangible things

Inspecting Photographing Testing Sampling

o Land/property Entry for:

Inspection Surveying/measuring Photographing Testing Sampling

o Electronically Stored Information Inspection Copying Testing Sampling: examining a portion to narrow down demand

How ofteno Any number, buto Supplemental demands are limited to two before trial and one during

Electronic discoveryo Information, no matter how stored, falls under ‘document’ for CCPo 2009 Electronic Discovery Act o “Electronic”

Electrical, digital, magnetic, wireless, optical, electromagnetic, or similar

o “Electronically Stored Information”

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Any information stored in an electronic mediumo CCP allows demanding party to specify the form in which the data is

to be producedo Responding party may objecto CCP has rules regarding protective orders

Provides courts with authority to set conditions for discovery of ESI

o Inadvertent disclosure Party who produced the ESI may notify receiving party of the

basis for privilege or protection Receiving party must either return the ESI, or present it to the

court under seal Receiving party may not disclose the information until privilege

claim is resolvedo Automatic erasure

ESI is frequently destroyed on a routine basis: backed up security videos, etc.

Parties have a duty to protect with a litigation hold, and to instruct employees properly

o If destroyed or altered: EDA (Elect Disc Act) has ‘safe harbor’ provisions

Protects people/entities from sanctions when information is lost due to routine, good faith operations

o CRC: When ESI is going to be involved: 30 days before CMC must meet and discuss issues relating to

ESI [Good to know something about digital storage]

Drafting Inspection Demandso Almost identical to interrogatory format

Propounding party/ responding party/ set numbero Demand must include time and place for inspection

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[dropbox]o State what is to be done to the items

If damage will result, you must state in demand Serving Inspection demand:

o Not filed with courto Served on all parties

Respondingo 1: serve a written response

Served within 30 days after service Failure to respond timely waives all objections to production

o Format the same as for Rogso Options

Agrees to comply Unable to comply, and why Objects, and why Cannot unilaterally alter request: can’t change time/place of

production; must try through an objection o May also seek a protective order before responding

Protective orderso Seek under: unwarranted annoyance; embarrassment; oppression;

undue burden and expenseo ESI: special protective request: from a source not reasonably

accessible b/c of undue burden and expenseo Court’s options

Set limits Change deadlines Change time/place Set conditions Protect trade secrets

Total non-disclosure or disclosed in limited way Sealed and opened only with court order

2: locating and organizing docs for production

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o Make master copyo Organize by chronology, witness, issueo Index

Log of each doc and its featureso Keep log of how and when docs were obtainedo Number each documento Make privilege log

Motion to compelo Have 45 days after service of response

CIV LIT PARA 97 CH 15 GREEN

RFA’S

Written requests from one party to another party asking the recipient to admit or deny each listed statement of fact; or

o As to the genuineness of docs Makes trial more efficient

o When a party admits that docs are genuine, no need to authenticate at trial

o When both parties agree to an issue, it does need to be put before the jury

o [Some do not see this as a true discovery tool; it is a means of narrowing down the scope of the trial by removing uncontested issues]

Proso Easy to prepare;o Conclusive and bindingo Can shift burden of production: that which is denied must be

supportedo Under oath; ergo, can be used at trial

However, courts do grant motions to retract with good cause

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o Can follow with rogs to explain denials Cons

o Limited to 35 More with declaration of need

o No one admits to contentious issues Drafting

o Pleading paper Judicial council form not recommended

o Format: same as rogs; propounding, responding; set #o No subparts or compound requests; one fact per numbero When inquiring about docs, must attach a copy of the doco Can only contain RFA: it cannot contain interrogatories or RFP; but all

can be served at the same timeo Sets are numbered consecutively

Serving:o Requests are served on all parties; not filed with courto Same as rogs

Respondingo 30 days after serviceo Untimely: may result in all ‘facts’ being deemed admittedo Format:

Identical to rogs Include Verification (included with title, and signed at end; or

use form from CH 1 White Binder)o For each request:

Admit, deny, lack information or knowledge; object Challenging Responses

o Motion to compel: 45 days after service of the responseso Must meet and confer before filing MTCo If party fails to respond

Motion for order deeming requests admitted No time limit for this motion

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