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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 by Eric Nakano, Voluntary Legal Services Program of Northern California

2 Our First Year of Civil Self-Help
Most customers were defendants in collection cases. Almost all of the defendants we saw were up against 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 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

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 Other resources Win Your Lawsuit by Nolo Press, Chapter 10 (Self-Help Section and NetLibrary) California Practice Guide: Civil Procedure Before Trial by The Rutter Group, Chapter 8, (KFC995.W45 v.2) CEB Action Guide- Obtaining Discovery: Initiating and Responding to Discovery Procedures (KFC 1020.Z9 T53 or OnLaw) CEB Action Guide- Creating Your Discovery Plan (KFC 1020.Z9 C74 or OnLaw)

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