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Teaching Basic Civil Discovery in a Workshop Setting

Teaching Basic Civil Discovery in a Workshop Setting. Presented by Eric Nakano, Sacramento County Public Law Library. The First Year. Most customers were defendants in collection cases. Almost all of the defendants are facing opposing counsel.

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Teaching Basic Civil Discovery in a Workshop Setting

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  1. Teaching Basic Civil Discovery in a Workshop Setting Presented byEric Nakano, Sacramento County Public Law Library

  2. The First Year • 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.

  3. Lessons of the First Year: • 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.

  4. Workshop Goals • Self-represented litigants should leave knowing: • 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.

  5. Starting the Workshop • General overview of the discovery process

  6. Introductory concept: Scope of Discovery • “Reasonably calculated to lead to the discovery or relevant admissible evidence.” (fishing analogy) • Concept of privilege should be introduced.

  7. Suggestions • 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.

  8. Request for Admissions • These are the most lethal form of written discovery to self-represented litigants. • Disc-020 is an optional form.

  9. Admissions Key Concepts • Purpose • Deadline • Effect of non-response • All requests must be for a single fact that can be answered "Admit" or "Deny"

  10. Request for Admissions • 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.

  11. Attachment 1 and 2 • 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.

  12. Responding to Request for Admissions • Introduction to the caption on pleading papers. • Possible responses: • Admit • Deny • Unable to admit or deny • Objection • Verification

  13. Interrogatory Key Concepts Purpose Deadline Effect of non-response Interrogatories are either Form Interrogatories or Special Interrogatories

  14. Form Interrogatories • Overview • Completing the forms • 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

  15. Responding to Form Interrogatories • Typically on pleading paper • Numbered and answered in the order asked • Verified

  16. Special Interrogatories • 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

  17. Responding to Special Interrogatories • 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

  18. Request for Production • This is one of the more difficult types of discovery for self-represented • No Judicial Council form • Phrasing of categories of document or things is often very challenging to self-represented litigants

  19. Category Suggestions • Category must be clear and defined • Suggest limiting the scope with “non-privileged,” 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

  20. Responding to Request for Production • 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

  21. General Tips on Requests for Production • Timing of the request • Can be very powerful whencombined 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

  22. Limits on Quantity • 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

  23. Final Suggestions • 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

  24. Remedies • “Meet and confer” • Motion to deem facts admitted • Motion to compel responses • Motion to compel further responses • Motion for sanctions • Terminating • Issue • Handout summarizes

  25. A Year Later • Customers better understooddiscovery, 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

  26. The Discovery Lab • We created a biweekly “lab” where people can work on their discovery requests andresponses 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.

  27. Current Problems • 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.

  28. The Future • 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

  29. Other resources • 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

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