Disc&Depnotes

8/13/2019 Disc&Depnotes

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DISCOVERY & DEPOSITIONS 1

SEPTEMBER 6TH

Password- polisi RULE 34

o Usually first set for production of docs is submitted with first set of interrogatories If non-party, have to service deposition subpoena RULE 34 (a)

o Rule 26- overarches and fits everything, so it has to be relevant, etc. RULE 34(b)

o Sets out procedure 34(b)(2): supposed to keep doc in the way that its kept Theres no limit to the amount of docs you can request GETTING STARTED

o Say this is a set of interrogs pursuant to and this is what you have to do andhow you have to do it (instructions)

o Costs- American rule is that parties pay for their own discovery

o Can sometimes recover costso Exceptionif the cost is unduly burdensome, you might be able to file motion to

shift costs to other party but you have to make really good cost to judge

Give special instructions about privilegethis is what you want your other party to know Definitionsdefine the basic terms Requests What documents to request:

o Any and all docs and communications containing the name, home and businessaddress and qualifications of all persons who have been retained or speciallyemployed by Plaintiff(s) in anticipation of litigation or preparation for trial and whoare not expected to be called as witnesses at trial or as to whom no suchdecision has yet been made, and attach any docs or communications receivedfrom said person(s). If there are no docs or communications, then the name ofsaid person(s) as well as their home and business addresses should be provided

o Any and all docs and communications which support Plaintiff(s) claims for wageloss and impairment of earning capacity and/or power

oThe name, home and business address, background and qualifications of anyand all persons in the employ of Plaintiff(s) who in anticipation and/or preparationof litigation, is expected to be called to trial

o Any and all documents and communications containing the name and home andbusiness addresses of all individuals contacted as potential witnesses

o What docs should be requested in a sexual harassment lawsuit?

o Phone calls, surveillance video, sexual harassment policy, REQUESTS FOR DOCS NO. 1

o Any and all docs which support, evidence, relate or otherwise pertain to any andall personnel policies of Defendant in effect from[date]to the present, includingbut not limited to:

(a) employee discipline policies

REQUESTS FOR DOCS 2o Any and all docs relating to or evidencing any investigation by Defendant into

Plaintiffs internal complaint of sexual harassment to Defendant including bu t notlimited to:

(a) written statements of witnesses (b) notes of interviews w/ witnesses tape recording of any and all oral statements and/or interviews of

witnesses transcriptions of any tape recordings of any and all oral statements

and/or interviews of witnesses


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reports regarding the results of any and all investigations correspondence received from or sent to P Correspondence received from or sent to D Correspondence received from or sent to any person other than Ds

counsel Documents relating to or evidencing discussions between P and D Documents relating to or evidencing discussions

REQUESTS FOR DOCS 3o Any and all docs which support, evidence, relate to, or otherwise reflect any

action taken by D

Caption- YR-1? Dont ask for docs in context of interrogatories Periods and commas always go on the inside of quotations! Plaintiff/defendant dont always have to be capitalized- just pick one and stick to it If in superior court use mass rules IF YOU RECEIVE A SET OF INTS

o Dont be tempted to answer them!o The ints. Are addressed o the client, not you!o

The ints must be... YOUR JOB IS

o Assist the client to phrase answers so that you satisfy Rule 33 and dont revealwork product or privileged info

o Exception: attorney responds to ints that ask about legal theories or what issueswill be presented at trial

o Exception: attorney asserts objections WHAT THE CLIENT MUST DO

o Person answering must provide info within his or her personal knowledgeo Person answering must provide info that can be gathered by diligent inquiry of

employees, representatives, agents, contractors, legal counsel, and by reviewingrecords

o Harder for corps than individualso Respond within 30 days

BASIC RULES FOR RESPONDING TO INTSo Minimum standardso Client, not attorney, must answero Answers must be in writingo Answers must be complete and sufficient. Respondent must furnish all info

requested, even if it takes addition investigation. Either answer the burdensomeint or object to it

o Each int must be answered separately. If redundant, you can refer back to ananswer

o Identical ints served on co-parties must be answer by each party even if answersare the same and all are represented by the same attorney

Basic rules (contd)o Ints must be answered under oath and signed by the person who answers them.

One sworn affadavit that all answers are true and accurate can be made at theend to cover all; in fed court, oath doesnt have to be notarized, but states vary

o Answers must be based on personal knowledge. on information and believe isnot sufficient.

o If you object you must state grounds in detailso If you object in part, you must provide as much info as you cano Attorney signs the objections. One signature at the end is sufficiento Serve answers within 30 days, unless parties have agreed to a dff period in

scheduling order


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o When an int asks for info concerning content of business records, you can givethe records instead of answering. If voluminous, you can give the clienteverything

Make sure you understand the question CAPTION AND INTRO INTRUCTIONS AND DEFINITIONS Answering the Intso The f Valid objections

o Privilege Make a clear and specific objection setting forth the factual and legal

foundation for the assertion of privilegeo Work producto Irrelevant to claims and defenses and therefore beyond scope of rule 26(b)o Too vague or ambiguous to know what is being askedo Too broad; not sufficiently precise to know what is being askedo Exceeds the limit on the number of interrogatories permittedo Unduly burdensome bc of amount of research, time, or cosdt required to find out

answero Asks for a legal conclusiono Seeks docs or contents of docs that require a motion to produce rather than an

interrogatory

I am a PLAINTIFF Request for production of docs due Sunday at noon- limit is 10

SEPTEMBER 13TH

Answering the Request

1- we dont have anything 2- we dont have

ETHICS IN DISCOVERY

Conflicts of interest, fairness, honesty

Witness preparation Rule 3.3: lawyer cant knowingly make false statement of fact or law to a tribunal

o Tribunalagency, jury, bench trial, any factfinder or decisionmakero Also covers failure to disclose

Rule 4.1in the course of representing a client a lawyer shall not knowingly make a falsestatement of material fact or law to a third person or fail to disclose a fact when disclosureis necessary to avoid assisting a criminal or fraudulent act by a client

Rule 1.8a lawyer related to another or intimately involved w/ another lawyer shall notrepresent a client in a representation directly adverse to a person whom the lawyerknows is represented by the other lawyer except upon consent by the client afterconsultation

Rule 1.7== general rule on conflicts of interest 3.1candor towards 3rdparties

Rule 3.4lawyer shall not make frivolous discovery request or fail to make reasonablydiligent effort to comply w/ a legally proper discovery request by an opposing party

SEPTEMBER 20TH

CASE THEORY

Case theory operates at 3 levels:o Legalelementso Factualwhat happened, and why, and what does it look like happened


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o Persuasive (theme)something that echoes throughout the trial, appeals to thejury

In the end, the legal, factual, and persuasive theories of the case will be unitary Legal theory

o Why, as a matter of law, we wino Will an order allowing/denying summary judgment withstand a challenge on

appeal that the plaintiff was/wasnt entitled

PLAINTIFFS CLAIMS

Claim 1: Gender Discriminationo She can show she didnt make partner and males made partner, other woman

didnt make partner, and she deserved the partner position/she was treateddifferently

Claim 2: Quid Pro Quo Sexual Harassmento When their relationship ended she was treated differently, didnt have as many

billable hours, had less work

Claim 3: Hostile Work Environmento Similar to sexual harassment pointso Have to prove it was gender basedo Ended a voluntary sexual relationship and in retaliation was denied partnership

(by not getting work assignments)

Claim 4: Defamationo Letters, phone calls, trying to find new job, something that harmed her rep,

something that deterred someone from hiring hero Has to be false info

DEFENDANTS DEFENSES

D didnt initiate the relationship Deny P received excellent evaluations over the employment period Deny P&G rejected P for partnership in the firm b/c she terminated the relationship Deny quid pro quo Deny Clark sexually harassed P and that there was a hostile workplace

Deny Clark maliciously made false statements, deny defamation Deny P&G ratified statements Deny emotional distress, etc.

FACTUAL THEORY

What are the facts What are the facts we need to be able to establish Are there facts that both sides will agree on How are we going to separate facts from conclusions, impressions, interpretations How do we show what really happened; why Do the facts differ from the perception of the facts

LEGAL THEORY

One Legal theory Polisi has available to her: strongest one is prob gender discriminationo Weakness: she couldnt do the hours toward the end anyway; Cliff told her to

wait and she didnto She has to show she was declined partnership b/c; men made ito Travel

OBJECTIVES OF DEPOSITION

The objectives are keyed to the theories and themes you are pursuing. How are yougoing to:

o Discover the story


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Yours The other sides

o Lay the foundations for docs (is it his handwriting, etc)o Learn the witnesss spin or perspective; what does Simon/law firm say about

case (prob that she wasnt as competent as the men) o Obtain admissions and test theory (that she he had 20 gfs, every women he was

in relationship w/ no longer at firm)o Lock in the witness for trial

BRAINSTORMING

Discuss facts, not law 8 rules of brainstorming:

o There are no bad ideaso Do no self-censoro Do not critique other peoples ideaso Do not comment on other ideaso The rules of evidence are irrelevanto Only facts and not conclusions or inferences may be statedno spinningo All facts must be recordedo The brainstorming session is time limited

GOAL #1: Identify the good facts v. bad facts Good:

o All the other women left firmo She terminated affairo He initiated affairo Good evaluationso Was given a second chance?o Got letter from NCW saying she did very well on the caseo Second version of note

Bad:o She never spoke about inappropriate behaviors/actions by Simono

Post on TWEN: Reading, no written assignment due next week

SEPTEMBER 27TH

BEGINNING THE DEPOSITION

What dont I know? What do I need to know? Want to get a good look at the witness and see what they know Never ask a question to which you dont know the answer- NO! You want to ask question

to which you dont know the answer

Never ask a why question- NOo Why, Simon, wasnt Polisi made partner?

Never ask an open-ended question- NO; in depositions you do want to ask depositionswho what, where, when, why

Ask only leading questions- NO. Ask open ended too Do not ask a question where the answer would hurt your theory of the case - NO

PURPOSES OF TAKING A DEPOSITION

See slide Ask what dont I know? not what do I know? What do I have to ask questions about? Write an outline- after youve done researchand look at all docs


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o Topics are already given on our sheet (in real life, have to figure out topicsourselves)

o Deposition should be about 5 mino Can work together

PREPARATION (DEFAMATION)

Whats the statement? What facts do I need?

Letter- who signed it, whats it say If youre Simon, what facts do you know the she had emotional distress? You only need

to know who else saw it, did you consult a doctor: develop facts to be discovered

BEGINNING THE DEPOSITION

Dont need to sit there and type all witnesss answers Usual stipulations- what are the usual stipulations? Are they not something thats already

in the rules? dont waive reading and signing o Objections for matters other than form are reserved for latero Then figure what you want to stipulate too Should usually stipulate to this deposition will go according to rules of civ pro

Build rapport: How did you get to be chairman of the litigation committee?o

Introduce yourself, who you represent, ask if the person is comfortable, introducecourt reporter and tell them theyll right down what theyre saying, tell them theyneed to respond with a verbal answer

o Ask to call them by their first name (if you want)o Ask if theyve been deposed before; if not, explain relative roles of parties,

explain lawyers can object, but explain that under rules they have to answeranyway but only exception is if their lawyer tells them not to answer

Close the understand door:o If you (person being deposed) dont understand what I ask, you can say I dont

understand, please rephrase the question

Is there any reason at all why you might not be able to give fair and truthful answerstoday?

(HUMOROUS EXAMPLE)

Q: all your responses must be oral, ok? Be carefully how you frame your questions- ask simple questions, words people

understand

THE FUNNEL APPROACH

This is the KEY to the deposition! Open ended questions- ask broad questions to get broad answers

o Each of us have been assigned 1-3 funnels (within our topics)o What dept did you work in? Did you work with anyone else? anybody else?

EXHAUST

What else? What else? What else? Is that all?

FOLLOW UP

Clarifying (you dont remember how many women or what their names are?), narrowing,focusing on the topic, getting all the details.

Should I chase that rabbit? (are you going to go down the path witness wants you to godown, or continue on the path youre going?)


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Turn generalized conclusion into specific verifiable facts (what is the expectation for thebillable hours?)

What usually happens to associate and P&G if they get a C on evaluation in 5thyear?Did that happen in Ms. Polisis case?

FILLING IN THE GAPS

Gathering additional info

Think of facts that should naturally follow Do what you can to limit the witnesss ability to claim to remember something later or at

trial

What about _____? Was there ____? Have you _____? Is it _____? Did you ____? Try not to use the word remember

RECAPITULATE (Summarizing)

Start with As I understand it is that right? so theres nothing more than?

OCTOBER 18TH

DIFFICULT OPPOSING COUNSEL

half class- defends or plays part of witness, other half- depositionRESULTS OF IMPROPER TACTICS

Cause dissension not inherent in the real differences between the parties Divert communication form the real facts and real issues Obstruct the chance to reach reasonable, acceptable solutions Turn the litigation process so that the tactics, not the merits, are the focus of the dispute

LACK OF CIVILITY, WHERE? Depositions In the courtroom On the phone

RECOGNIZING THE OBSTREPEROUS LAWYER- common obstructionist tactics

Improperly instructing a witness not to answer a question Clarifying questions unnecessarily Speaking objections Interrupting the witness who is answering questions Lengthy colloquies Inappropriate recessing Private consultations while a question is still pending Blatant rudeness Profanity Ad hominem attacks Use of vulgar gestures or threats of violence

SCREAMING MEANIES

Paramount Communications, Inc. v. QVC Network:FIGHTING RAMBOS


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Lawyers who think they can win by intimidation, throw fits in the middle of depositions,coerce w/ threats and psychological pressure, oppose everything

THE OBJECTOR

Objects to every questions, objects and improperly instructs the witness not to answer Howell v. Standard Motor Products Mass R. Civ. P. 30(c)

RELEVANCE

Remember: the question need not call for admissible or relevant evidence, justreasonably calculated to lead to discovery of admissible evidence (FRCP 26(b)(1))

Dont debate itThe witness cannot understand the question

Lawyer should not declare he doesnt understand the question Tell the witness at the outset that he should feel free to ask for clarification at any time The witness and I agreed at the start that he would tell me when he didnt understand

correct way to do it

Dont speculate If you know Dont guess Dont speculate You dont want to say these things

THE OBJECTOR- SOLUTIONS

Ignore Confront- ask the basis of the objection and remind counsel of Mass. R. Civ. P. 30(c) Make a record Ask good questions If you have no been able to get answers, suspend disposition and go to court

THE CONSULTOR Objects to every question Objects and improperly instruct the witness not to answer Hall v. Clifton Precision

THE CONSULTOR- SOLUTIONS

Make a record Ask the hard questions right after the break Cite Hall v. Clifton Precision

THE CONTROLLER

Coaching witness with multiple or speaking objections Taking breaks/conferring with witness Improperly interjecting even when lawyer doesnt represent witness A combo of all the others Cholfin v. Gordon

I instruct the witness not to answer

Force the defender to articulate the basis for the instruction If your inquiry is proper, dont abandon it Might ask stenographer to mark the question and instruction ot the witness or create an

index


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Consider rephrasing the question and asking it later Motion to compel?

THE CONTROLLER-SOLUTIONS

Ignore Confront- do not agree to breaks if in the middle of a question or a line of questioning Make a record Ask good questions Go to court

THE LEGAL BULLY

Bullies the witness with the tone of the questions Bullies the witness by asking the same question over and over Bullies other lawyers

This deposition is over!

Most of the time, improper to terminate deposition unilaterally See Fed. R. Civ. P. 30(c) Examination continues, subject to objections Or, examination may be suspended to get a protective order- must communicate Make clear record

THE LEGAL BULLY- SOLUTIONS

Stay calm Confront bully Prepare your witness in advance for how to deal w/ a bully DONT BECOME A BULLY YOURSELF!

DIRTY TRICKSTERS

DINOSAURS

Attorneys that are overly friendly Calls you by your first name

THE BEST DEFENSE IS A GOOD OFFENSE

Prepare your witnesso Listen carefully to each questiono Ask that question be repreated or tell lawyer if you dont understando Answers should be shorto Dont guess or speculateo Pause before answeringo objection as to formpay attention before respondingo Basic concepts of attorney/client or other relevant privilegeso Late afternoon slumpfocuso No false sense of security in response to friendlinesso Watch out for factual assumptions contained in questionso We will do more with witness preparation at a later date

Know your placeo You are not a potted planto Take an active role in protecting the witness and the recordo Confidently assert objectionso Sit next to deponent and encourage him not to answer until you have a chance to

object


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o Put an end to aggressiveness but dont be aggressive Dont allow repetitive questioning

o Some repetition is unavoidableo Repeated repetitions causes inconsistencieso Take notes so you can object to needless repetitiono Other than what the witness has testified too?o

If unreasonable, place objection on record then tell witness not to answero Dont allow double-teaming Protect the privileges

o Know your privileges and when you can assert themo Protect the witnesss privilegeso Discuss area of sensitivity in advanceo Dont waive privilege, for example, by opening the door

Insist on proper formo Objections as to form are waived if not assertedo Listen carefullyo State grounds preciselyo Common objections as to form:

Too broad Compound Asked and answered Calls for conjecture, speculation Ambiguous, imprecise, unintelligible Argumentative, abusive, improper characterization Assumes as true facts in dispute Question misquotes a witnesss early testimony Question calls for an opinion from a witness not qualified to give one

Dont allow hypothetical questionso Inappropriate of fact witnesses

Dont allow abuse Engage in defensive techniques Practice equality

NOVEMBER 29TH

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