Discovery Practice

© 2016 DailyDAC, LLC d/b/a/ Financial Poise™ 1

DISCOVERY PRACTICEPremier Date: October 19, 2016

NEWBIE LITIGATION SCHOOL, PART 1 2016

A Financial Poise Webinar

Premier Date: October 19, 2016

NEWBIE LITIGATION SCHOOL, PART 1 2016

DISCOVERY PRACTICE

2© 2016 DailyDAC, LLC d/b/a/ Financial Poise™


meet the facultyPANELISTS

Meryl Macklin Bryan Cave, San FranciscoDaniel Curth Goldstein McClintock, ChicagoLisa Vandesteeg Sugar Felsenthal Grais & Hammer, Chicago

MODERATORRob Michaels Robinson Curley & Clayton P.C.


Practical and entertaining education for business owners and executives, accredited

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NOT BE CONSIDERED LEGAL ADVICE. YOU SHOULD CONSULT WITH AN ATTORNEY TO DETERMINE WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS.

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about this webinar

How do I get the information that I need to prove my case? This session will dive into discovery methods and procedures. We will explore the timing and procedures for mandatory initial disclosures, the use of interrogatories, document requests and requests to admit. We’ll also discuss the importance and potential cost of electronic discovery, as well as how to limit the overly-broad discovery requests you are sure to get from opposing counsel.


about this series

This series is aimed at attorneys who are just starting to get involved in civil litigation, or who could use a refresher on some litigation fundamentals. The purpose is to introduce different components of litigation in the order they generally occur, beginning with the basic rules of civil procedure and continuing through discovery, dispositive motions, and working with experts. The series is best viewed as a whole, building from one session to the next, and then segueing into a second series in early 2017 covering the next phase of litigation (rules of evidence, trial, appeal, and post-judgment enforcement/collection).

episodes in this series

EPISODE #1 Federal Rules of Civil Procedure Refresher 9/28/16

EPISODE #2 Discovery Practice 10/19/16

EPISODE #3 Dispositive Motions 11/16/16

EPISODE #4 Working With Experts 12/7/16

Dates above are premier dates; all webinars also available on demand



Pre-Discovery: Evidence PreservationEvery Lawyer’s Responsibility• What: Take “reasonable steps” to preserve documents and

electronically-stored information (“ESI”)

• Includes reasonable suspension of normal practice

• When: As soon as litigation (or government investigation) is reasonably anticipated

• Who: Your client (on written notice from you) and opposing party (independent obligation, but you should also give notice)


Overarching Considerations

Propounding Discovery

•What do I ask for?•How do I ask?•Who do I ask?•What happens if I reach an impasse with the other side?

Responding to Discovery

• What information do I have to turn over?

• How much time and expense must be incurred?

• How can I protect sensitive information?


Centrality of FRCP FRCP 26 – General Provisions

Three phases of mandatory disclosures: (1) initial; (2) expert; (3) pre-trial

Scope of discovery: non-privileged information “relevant to any party‘s claim or defense and proportional to the needs of the case“

Protection of trial preparation materials Protective Orders Obligation to supplement all responses

FRCP 27-36 – Particular Discovery Tools

FRCP 37 – Failure to Cooperate


Discovery PracticeDiscovery Doesn’t Look Like This Anymore


Electronically-Stored Information (”ESI”)• Broadly Defined• Emails• Documents • Text and voice messages• Browser history• Social media postings• Includes all metadata

• Requires preservation of physical media: hard drives, flash drives, backup tapes


Scope of DiscoveryFRCP 26(b): “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit”


DISCOVERY PRACTI CE

Evidence that will be presented at trial.

Relevant Information Responsive to Discovery

All of the Information in the World


Initial Disclosures Checklist

• People “likely to have discoverable information”

• Description by category and location of documents and ESI

• Computation of each category of damages.

• Relevant insurance agreements


MAJOR TYPES OF DISCOVERY• Depositions - FRCP 27-32

• Interrogatories- FRCP 33

• Requests for Production of Documents- FRCP 34

• Requests for Admission- FRCP 36

• Third Party Subpoenas- FRCP 45


InterrogatoriesTypes of Interrogatories

• Interrogatories aimed at facts (e.g., ”identify all human resources department employees between date X and date Y”)

• Contention Interrogatories (e.g., “identify all facts supporting contention X in paragraph Y of the amended complaint”)

Responding

• Objections (scope; privilege; timing (for contention interrogatories))

• Written answers (may be subject to objections)

• Documents in lieu of written answer


Requests for Production• Most basic discovery tool: documents/ESI will be exhibits at depositions and

evidence at summary judgment/trial

• Must respond to each request in writing + produce documents/ESI• May object to scope/privilege per FRCP 26

• Must produce documents as kept in “usual course of business”

• Must organize and label documents/ESI to correspond with requests • not always strictly done• at a minimum, avoid “document dump”

• Produce ESI in reasonably usable form; typically subject to separate agreement


Requests for Admission

• Can be critical for document authentication and/or pinning down key facts

• Requests must be precise; any ambiguity permits objection or denial

• Accompany with interrogatory seeking explanation for any denial

• Don’t be late: failure to timely respond = admission

• Don’t be too cute: improper/unsupported denial can = admission


DepositionsTaking Depositions

• Carefully plan/outline: identify objectives• Short, simple questions• Pin down story/facts; have record to impeach at trial• Authenticate documents

Defending Depositions• Prepare witness

• Listen to question; answer only what’s asked• Not a conversation; don’t try to help opposing counsel understand• “I don’t know” or “I don’t recall” are fine so long as TRUE

• Opposing counsel can ask about documents shown during prep• Be ready with objections

Rule 30(b)(6) Depositions

• Can be critical for learning corporate policy or entity’s official position or knowledge


Third Party Discovery FRCP 45 Subpoenas

• Don’t need leave of court

• Can request documents, ESI, or testimony from anywhere in U.S. but place of production or appearance must be within 100 miles of witness

• FRCP govern depositions and productions of documents

• Use FRCP 45 form + document rider

• Must provide notice of subpoenas to all parties


Discovery Disputes• Courts hate them; cannot be brought to court unless parties meet and confer to

attempt resolution

• Discovery proponent can bring motion to compel (FRCP 37)

• Discovery opponent can bring motion for protective order (FRCP 26(c)(1))

• Check local rules and judge’s standing orders for specific requirements and form of motion

• Loser of motion may have to pay movant’s fees/costs

• Non-compliance can result in sanctions, from adverse inference up to default judgment (for plaintiff) or dismissal (for defendant)


Discovery Practice

Meet and confer Motion to Compel

More About The Faculty D

ROBERT [email protected]

Rob is a shareholder at Robinson Curley & Clayton P.C.

Rob counsels and litigates for clients in a wide variety of complex commercial litigation matters, including fraud, RICO, shareholder disputes, professional liability and other claims arising from corporate looting and insolvencies, as well as a range of software and technology matters. Rob has practiced in state and federal courts around the country and has successfully argued a number of federal appeals.

Before joining RCC, Rob was a Staff Attorney and Project Director at the Environmental Law and Policy Center of the Midwest, a Bigelow Teaching Fellow at the University of Chicago Law School, an associate at Mayer Brown, and a law clerk for a federal district court judge.



MERYL MACKLIN


[email protected] Macklin is a Partner at Bryan Cave, San Francisco.

Ms. Macklin is a trial lawyer with over 30 years of experience trying and resolving complex business disputes. Ms. Macklin has served as lead trial counsel for clients ranging from major corporations to small startups in dozens of high-exposure cases in state and federal courts around the country, and regularly practices in both Northern and Southern California. Her trial experience has enabled her to develop targeted litigation strategies even when handling cases likely to settle, avoiding unnecessary and costly motion and discovery practice where possible. Her practice focuses not only on defending companies inlitigation but also on counseling clients on ways to quickly resolve disputes. She is a strong team leader, with proven success partnering with clients and other professionals to accomplish results. She previously served as the Chair of the Litigation Department of legacy firm HRO and a member of legacy firm HRO’s Executive Committee. Prior to joining Bryan Cave, Ms. Macklin was a partner at law firms in Pittsburgh and Los Angeles.

Ms. Macklin is a member of the Northern District of California Mediation Panel and serves as mediator for all types of commercial disputes. She attended mediation training at the Harvard Negotiation Project.


DAN CURTH


[email protected]

Dan Curth is a Partner at Goldstein McClintock, Chicago.

Mr. Curth is a talented and experienced litigator who regularly obtains successful outcomes for his clients in a broad array of disputes. In addition to representing clients in bankruptcy litigation matters – including the prosecution and defense of preference and fraudulent transfer claims – Mr. Curth regularly represents individuals and executors in connection with pursuing and defending challenges to wills, trusts, and other testamentary dispositions of assets. He also represents individuals and corporate trustees in pursuing and defending against breach of fiduciary duty claims. Additionally, as trust litigation counsel, Mr. Curth counsels and advises trustees on how to avoid and, if necessary, to pursue or defend, litigation involving a wide variety of trust assets and investments. Mr. Curth has represented a variety of clients before the Illinois Circuit Courts and the U.S. District Court for the Northern District of Illinois, as well as before several other state and U.S. District Courts, and before various arbitration panels, including the American Arbitration Association, the NFA, the NASD and before the U.S. Court of Appeals for the 7th and 9th Circuits.


LISA VANDESTEEG


[email protected]

Lisa is a partner Sugar Felsenthal Grais & Hammer where she concentrates in the areas of bankruptcy and commercial litigation.

Lisa concentrates her practices in the areas of bankruptcy and commercial litigation. She works extensively in the area of creditors’ rights, representing secured creditors, unsecured creditors, creditors’ committees, landlords, and shareholders in Chapter 11 and Chapter 7 cases in courts throughout the U.S. She has also worked on all aspects of civil litigation in federal and state courts, from initial pleadings through discovery, motion practice, trials and appeals.


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Important Notes

• THE MATERIAL IN THIS PRESENTATION IS FOR GENERAL EDUCATIONAL PURPOSES ONLY.

• IT SHOULD NOT BE CONSIDERED LEGAL, INVESTMENT, FINANCIAL, OR ANY OTHER TYPE OF ADVICE ON WHICH YOU SHOULD RELY.

• YOU SHOULD CONSULT WITH AN APPROPRIATE PROFESSIONAL ADVISOR TO DETERMINE WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS.

Discovery Practice

Education

Transcript of Discovery Practice