Teaching Basic Civil Discovery in a Workshop Setting

1
Teaching Basic Civil Discovery in a Workshop
Setting

• Presented byEric Nakano,
• Sacramento County Public Law Library

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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.

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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.

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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.

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Starting the Workshop

• General overview of the discovery process

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Introductory concept Scope of Discovery

• Reasonably calculated to lead to the discovery
  or relevant admissible evidence. (fishing
  analogy)
• Concept of privilege should be introduced.

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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.

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Request for Admissions

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

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Admissions Key Concepts

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

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Request for Admissions

• The caption is just what youd expect.
• The concept of the Asking or Propounding
  party can be re-iterated.
• The middle signature line is part of the
  instructions.

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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.

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Responding to Request for Admissions

• Introduction to the caption on pleading papers.
• Possible responses
• Admit
• Deny
• Unable to admit or deny
• Objection
• Verification

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Interrogatory Key Concepts

• Purpose
• Deadline
• Effect of non-response
• Interrogatories are either Form Interrogatories
  or Special Interrogatories

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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

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Responding to Form Interrogatories

• Typically on pleading paper
• Numbered and answered in the order asked
• Verified

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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

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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

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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

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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

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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

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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

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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

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Final Suggestions

• Reiterate the purpose
• Sometimes finding out what the other side doesnt
  have is more useful
• Example of exclusionary/ in limine motion before
  trial
• Example of using to impeach at trial

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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

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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

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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.

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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.

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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

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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