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Similar to Chapter 13 thirteen interrogatories and requests for production
Similar to Chapter 13 thirteen interrogatories and requests for production (16)
Chapter 13 thirteen interrogatories and requests for production
- 1. Civil Litigation:
Process and Procedures
Chapter Thirteen
Interrogatories and Requests for Production
- 2. Interrogatories and
Requests for Production
The two most frequently used
discovery devices
Written requests for information
Addressed only to parties, not
witnesses
The basis for other investigation,
additional discovery requests
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 2
- 3. Interrogatories
A formal request for answers to written questions
Answers are made under oath, signed by the
client/party
Subject to perjury laws
Can be used for impeachment at trial
Protected information generates an objection, rather
than an answer
Usually privilege or work product
Attorney must sign (ratify) an objection
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 3
- 4. Requests for Production
Federal Rule 34 – Production of Documents and
Things and Entry Upon Land for Inspection and
Other Purposes
Moveable items and documents must be furnished
upon receiving the discovery request
Non-moveable items (e.g., real property, large
equipment) can be inspected on-site (entry)
Requests for protected material should generate
an objection
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 4
- 5. Request for
Production – Non-Parties
Although the discovery tool is not
available, non-parties may be asked to
produce documents or permit inspection
The request comes in the form of a
subpoena duces tecum
This may also command an appearance at
a hearing, deposition or trial
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 5
- 6. Subpoena on
a Non-Party
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 6
- 7. Discovery Document Format
Similar to pleadings
Caption
Identification of the document
Introductory paragraph
Party serving it
Action required of the recipient
List of definitions
Body
Attorney’s signature
Certification of service
Verification of the party (answer)
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 7
- 8. Body of the Document
In interrogatories, written questions
In requests for productions
List of documents
List of physical objects
Proposed arrangements for inspection, right
of entry
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 8
- 9. Time-Frame
Some preliminary information is required “up-
front”
A meet-and-confer will set out the timeline
The faster the discovery is completed, the
greater the time available for settlement prior
to trial
Deadlines may be extended
In initial discovery plan
By stipulation between the attorneys
By order of the court, with good cause
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 9
- 10. Drafting Interrogatories
Largest source of objections during discovery
Court may limit the number of objections
Used to obtain information controlled by the
other party
In addition to 25 initial questions, there will be
initial disclosures under federal rules which will
eliminate some areas of inquiry
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 10
- 11. Drafting
Based on an analysis of the claims, proof
needed, and possible defenses
May be modeled on forms for simple
cases (form books, form files)
In complex cases, may be designed to
lead to additional avenues of investigation
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 11
- 12. Claims, Defenses, Issues
Review the complaint, any motions
Review or research the elements needed
to prove the claims
Review the defenses outlined in the
answer
Review the preliminary material provided
under Fed. Rule 26
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 12
- 13. Proof
What will need to be produced to prove the
client’s claim or defense?
Identity of witnesses
Documentary evidence
Physical evidence
Inspection or testing required for expert
analysis
As a matter of strategy, some questions will
be reserved for depositions (more
spontaneous responses)
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 13
- 14. Preparing Interrogatories
Writing
Review pleadings and prepare a list of claims &
defenses
Review or research the necessary elements
Review initial disclosures made under Rule 26(a)
Identify areas with a lack of supporting information
Service
Set of interrogatories should be sent to opposing
counsel(s), if that party is represented
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 14
- 15. Reminders
Never directly contact a party who is
represented by counsel
Be sure to calendar (docket or tickle) the
expected due date for answers
If responding to interrogatories, be sure to
calendar the necessary reminders as well as the
due date
If the due date passes without response, a
motion to compel may need to be prepared
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 15
- 16. Responding to Interrogatories
Make 2 working copies
Review with attorney to identify any objections
Send a copy to the client & schedule a meeting
Review all case information
Meet with the client, draft responses
Review draft responses with attorney, amend as
necessary
Meet with client for verification of final answers
Be sure response is received before due date
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 16
- 17. Objectionable Questions
The attorney will object to questions that should
not be answered
Seek information protected by
Privilege
Work product doctrine
Trade secrets exception
Duplicative or under control of the requesting party
Vague, overly broad, burdensome (can narrow)
Unlikely to lead to admissible evidence
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 17
- 18. Narrowing the Scope
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 18
- 19. Motion for a Protective Order
The requesting party may accept the
objection coupled with a narrower answer
If not, a motion for protective order will be
filed with the court at the same time answers
are served on the opposing attorney
The judge will sustain or overrule the
objection
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 19
- 20. Discrepancies
If the client information differs from that
contained in the file
May be a faulty memory
May be a change in facts that could affect a
claim or defense
Must be brought to the attention of the lead
attorney as soon as possible
The client signs under penalty of perjury
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 20
- 21. Certificate of Service
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 21
- 22. Reviewing Answers
Check to see that all have been addressed
Answered fully
Objected to
If a motion for a protective order has been
filed, calendar (tickle) it with adequate
reminders for preparation
Analyze answers to discover any follow-up
required by requests for production or
deposition
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 22
- 23. Preparing a
Request for Documents
Integrate information from interrogatories
into case file, and re-analyze the claims,
elements & defenses
Request any documents revealed in the
previous discovery requests (remembering
that the order of discovery is a strategy
issue)
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 23
- 24. A Request for Production
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 24
- 25. Responding to
Requests for Production
Each document requested must be reviewed by the
attorney for possible objections, including relevance
Be sure the documents are numbered
Each request MUST be answered, with the
document requested or an objection
If the production of documents is unduly
burdensome, the requesting party may be
permitted to review & copy the pertinent
documents
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 25
- 26. Retrieving Documents
Paralegals may do manual reviewing &
copying of documents
The material requested may be in
electronic format for litigation support (or
document management) software to
search
The material may be scanned from hard
copy for the same purpose
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 26
- 27. Reviewing Responses
Every request should have an answer
Be sure the documents requested are actually
provided
If there are objections, the attorney must
determine whether to accede to the objection
or defend the protective order request
If there is no response, a motion to compel
may be needed
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 27
- 28. Meet and Confer
Before the initial scheduling conference
with the judge – Rule 26(f)
Try to stipulate to
Timelines
Formats of electronic documents required
“Claw-back” provisions, etc.
Reported back to the judge for use at the
scheduling conference
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 28
- 29. E-Discovery Questions
for the Client’s Business
Who manages the computers/network?
What programs/software are used?
What are the e-mail IM provisions?
How are documents created, transmitted, stored?
What is the back-up system?
Who in the company has access/administrative rights?
Who outside the company has access?
What is the security system?
Who performs maintenance & repair?
What is the document retention, archiving & destruction policy?
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 29
- 30. E-Discovery Considerations
Native format or TIFF/PDF?
Metadata?
Cost of retrieving
Destroyed or corrupted files
Files stored on obsolete devices
Client’s retention policy (litigation hold)
“Claw-back” provisions
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 30