Transcript Teaching Basic Civil Discovery in a Workshop Setting Presented by

Teaching Basic Civil
Discovery in a Workshop
Setting
Presented by
Eric Nakano,
Sacramento County Public Law Library
The First Year
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Most customers were defendants in collection
cases.
Almost all of the defendants are facing opposing
counsel.
Almost every customer had received discovery
requests from the opposing counsel.
Very few customers replied to the discovery
requests. Many lost their cases as a result.
Lessons of the First Year:
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Very few customers remembered being told
about the discovery process when being assisted
with their Answer or Complaint.
Very few customers read the handouts and
other materials about discovery that were
provided or suggested.
Discovery is one of the most difficult procedural
concepts for self-represented litigants because
there is almost nothing in popular culture to
prepare them for it.
Workshop Goals
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Self-represented litigants should leave
knowing:
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What discovery is, and how to recognize
discovery requests;
The basic flow of discovery;
The fundamentals of Requests for Admissions,
Interrogatories (Form and Special), and
Requests for Production/Demands for
Inspection.
Where they can find additional information.
Starting the Workshop
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General overview of
the discovery
process
Introductory concept: Scope of
Discovery
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“Reasonably
calculated to lead to
the discovery or
relevant admissible
evidence.” (fishing
analogy)
Concept of privilege
should be
introduced.
Suggestions
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Be sure the customers know, as early as
possible, that all sides in a lawsuit can use
discovery to get evidence from any other party.
It is better if customers attend the workshop
before they receive discovery requests.
Have fun. This is a long workshop. Anything
that keeps customers attention and aids in
retention is good.
Request for Admissions
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These are the most
lethal form of
written discovery to
self-represented
litigants.
Disc-020 is an
optional form.
Admissions Key Concepts
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Purpose
Deadline
Effect of non-response
All requests must be for a single fact that
can be answered "Admit" or "Deny"
Request for Admissions
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The caption is just
what you’d expect.
The concept of the
“Asking” or
“Propounding” party
can be re-iterated.
The middle signature
line is part of the
instructions.
Attachment 1 and 2
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Suggest that each
request be prefaced
by “Admit that”
Only one fact can be
in each admission.
Look out for “and”
“or” periods,
semicolons, etc.
Responding to Request for
Admissions
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Introduction to the
caption on pleading
papers.
Possible responses:
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Admit
Deny
Unable to admit or
deny
Objection
Verification
Interrogatory Key Concepts
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Purpose
Deadline
Effect of non-response
Interrogatories are either Form
Interrogatories or Special Interrogatories
Form Interrogatories
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Overview
Completing the forms
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Caption
Signature line is part of
instructions, so is not
signed
Definition of INCIDENT
x.0 items are headings,
not questions
15.1 and 17.1 are
particularly
useful/difficult
Responding to Form
Interrogatories
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Typically on pleading
paper
Numbered and
answered in the order
asked
Verified
Special Interrogatories
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Typical pleading
caption
Multiple “right ways” to
format/phrase
Words in all capitals
specially defined
Can be used to
replicate Form
Interrogatory 15.1 and
17.1 in limited civil
cases
Responding to Special
Interrogatories
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Format is identical to
responding to Form
Interrogatories, except
for the numbering
sequence
Numbering errors in
Special Interrogatories
is common but not a
problem when
answering
Verified
Request for Production
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This is one of the
more difficult types of
discovery for selfrepresented
No Judicial Council
form
Phrasing of categories
of document or things
is often very
challenging to selfrepresented litigants
Category Suggestions
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Category must be clear and defined
Suggest limiting the scope with “nonprivileged,” date limits, account limits, etc.
“Any non-privileged documents identified in
your response to the [Form Interrogatories/
Special Interrogatories] served with this
Request.”
“Any documents that you intend to produce
at trial,” is objectionable on work-product
grounds
Responding to Request for
Production
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Both a verified written
response and
production are required
Written response
specifically states that
the production will be
allowed, or identifies
what is not being
produced and why
A diligent search and
reasonable inquiry are
required
General Tips on Requests for
Production
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Timing of the request
Can be very powerful when
combined with interrogatories
Written response is independent of time for
actual production
Production is of originals unless otherwise
agreed upon
Cost of production is borne by the asking
party
Limits on Quantity
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Amount of discovery
depends upon
whether the case is
limited or unlimited
Likewise, the
remedies for excess in
a limited case differs
from excess in an
unlimited case
Final Suggestions
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Reiterate the purpose
Sometimes finding
out what the other
side doesn’t have is
more useful
Example of
exclusionary/ in limine
motion before trial
Example of using to
impeach at trial
Remedies
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“Meet and confer”
Motion to deem facts admitted
Motion to compel responses
Motion to compel further responses
Motion for sanctions
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Terminating
Issue
Handout summarizes
A Year Later
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Customers better understood
discovery, and were engaging in it.
Many still had a great deal of difficulty,
and took a disproportionate amount of
time in consultation.
The level of difficulty was frustrating to
many customers
The Discovery Lab
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We created a biweekly “lab”
where people can work on
their discovery requests and
responses on the computer
and receive answers to their question while
they are working on their discovery.
Customers have responded very well, and
have walked away with an increased sense of
self-reliance.
Current Problems
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A few law offices respond to all discovery
requests, no matter how simple, from SRL
with objections.
Motions to compel further responses tend
to be difficult for SRL mostly because
primarily because of the requirement of a
Separate Statement and the 45 day limit.
The Future
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Form motions to compel responses or
compel further responses.
Better directions for discovery motions.
Available OCR of discovery requests and
responses to simplify responses, motions,
and any other related pleading
Other resources
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Win Your Lawsuit by Nolo Press, Chapter 10
California Practice Guide: Civil Procedure
Before Trial by The Rutter Group, Chapter 8,
CEB Action Guide- Obtaining Discovery:
Initiating and Responding to Discovery
Procedures
CEB Action Guide- Creating Your Discovery
Plan