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. Most customers were defendants in collection cases. Almost all of the defendants are facing opposing counsel. Almost all of the defendants are facing opposing counsel. Almost every customer had received discovery requests from the 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. Very few customers replied to the discovery requests. Many lost their cases as a result.

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 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. 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. 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 Self-represented litigants should leave knowing: Self-represented litigants should leave knowing: What discovery is, and how to recognize discovery requests; What discovery is, and how to recognize discovery requests; The basic flow of discovery; The basic flow of discovery; The fundamentals of Requests for Admissions, Interrogatories (Form and Special), and Requests for Production/Demands for Inspection. The fundamentals of Requests for Admissions, Interrogatories (Form and Special), and Requests for Production/Demands for Inspection. Where they can find additional information. Where they can find additional information.

Starting the Workshop General overview of the discovery process General overview of the discovery process

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

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. 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. 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. Have fun. This is a long workshop. Anything that keeps customers attention and aids in retention is good.

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

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

Request for Admissions The caption is just what you’d expect. The caption is just what you’d expect. The concept of the “Asking” or “Propounding” party can be re-iterated. The concept of the “Asking” or “Propounding” party can be re-iterated. The middle signature line is part of the instructions. The middle signature line is part of the instructions.

Attachment 1 and 2 Suggest that each request be prefaced by “Admit that” 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. Only one fact can be in each admission. Look out for “and” “or” periods, semicolons, etc.

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

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

Form Interrogatories Overview Overview Completing the forms Completing the forms Caption Caption Signature line is part of instructions, so is not signed Signature line is part of instructions, so is not signed Definition of INCIDENT Definition of INCIDENT x.0 items are headings, not questions x.0 items are headings, not questions 15.1 and 17.1 are particularly useful/difficult 15.1 and 17.1 are particularly useful/difficult

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

Special Interrogatories Typical pleading caption Typical pleading caption Multiple “right ways” to format/phrase Multiple “right ways” to format/phrase Words in all capitals specially defined Words in all capitals specially defined Can be used to replicate Form Interrogatory 15.1 and 17.1 in limited civil cases Can be used to replicate Form Interrogatory 15.1 and 17.1 in limited civil cases

Responding to Special Interrogatories Format is identical to responding to Form Interrogatories, except for the numbering sequence 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 Numbering errors in Special Interrogatories is common but not a problem when answering Verified Verified

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

Category Suggestions Category must be clear and defined Category must be clear and defined Suggest limiting the scope with “non- privileged,” date limits, account limits, etc. 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 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 “Any documents that you intend to produce at trial,” is objectionable on work-product grounds

Responding to Request for Production Both a verified written response and production are required 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 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 A diligent search and reasonable inquiry are required

Timing of the request Timing of the request Can be very powerful when combined with interrogatories Can be very powerful when combined with interrogatories Written response is independent of time for actual production Written response is independent of time for actual production Production is of originals unless otherwise agreed upon Production is of originals unless otherwise agreed upon Cost of production is borne by the asking party Cost of production is borne by the asking party General Tips on Requests for Production

Limits on Quantity Amount of discovery depends upon whether the case is limited or unlimited 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 Likewise, the remedies for excess in a limited case differs from excess in an unlimited case

Final Suggestions Reiterate the purpose Reiterate the purpose Sometimes finding out what the other side doesn’t have is more useful Sometimes finding out what the other side doesn’t have is more useful Example of exclusionary/ in limine motion before trial Example of exclusionary/ in limine motion before trial Example of using to impeach at trial Example of using to impeach at trial

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

A Year Later Customers better understood discovery, and were engaging in it. 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. 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 level of difficulty was frustrating to many customers

The Discovery Lab 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. 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. Customers have responded very well, and have walked away with an increased sense of self-reliance.

Current Problems A few law offices respond to all discovery requests, no matter how simple, from SRL with objections. 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. 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 Form motions to compel responses or compel further responses. Form motions to compel responses or compel further responses. Better directions for discovery motions. Better directions for discovery motions. Available OCR of discovery requests and responses to simplify responses, motions, and any other related pleading Available OCR of discovery requests and responses to simplify responses, motions, and any other related pleading

Other resources Win Your Lawsuit by Nolo Press, Chapter 10 Win Your Lawsuit by Nolo Press, Chapter 10 California Practice Guide: Civil Procedure Before Trial by The Rutter Group, Chapter 8, 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- Obtaining Discovery: Initiating and Responding to Discovery Procedures CEB Action Guide- Creating Your Discovery Plan CEB Action Guide- Creating Your Discovery Plan