Discovery Discovered

Relevance … or… FRCP 26(b) Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. What does that mean? What does it imply?

Privilege Relevant Admissible But… public policy demands this protection. WHY? What is its purpose?

Whose Privilege? Privilege belongs to the client… Not to the attorney or paralegal Client may waive it, we can’t.

Other common privileges Spouses Clergy-Penitent Doctor-Patient Pyschotherapist-Patient Settlement Negotiations Why?

Common Interest Doctrine When attorneys work together… Or when we have a legal team. Shared interest with the client. We are ONE.

Work Product Doctrine Material prepared by or for the attorney regarding: Legal Theories Defenses Strategies Methods of Impeachment Conclusions, Opinions, Theories

Internal Investigations Audits where required or encouraged by regulations… Protected? If so, when? WHY?

Electronic Discovery Brave new world… still, and constantly developing. Often the source of protective orders. Why? Metadata? Description, Size, Access, Location, Operation, Control, Cost, Connections to other material, Transient, Nonstandard Software, and Preservation, Running Programs…

IT What is IT? Know your client! See checklist page 315

Gone, but not forgotten… Deleted material Trash Shredded Recycle Bin Hard Drive The Cloud Partner organizations Clients of the client Copies of copies…

Claw Back Provision Include a provision that allows privilege to be applied to data already provided… used to prevent malpractice in E-Discovery WHY do we need it?

Fed and Cal Discovery Plan? SHARED??? Federal Rule 26(a) Meet and Confer WHY? California has a CMC … Case Management Conference

Scheduling Order Federal: See pages 304-305 California is generally more flexible.

Initial Disclosures Not part of the interrogatories, nor the limited number of questions allowed. Required in addition: Identity of Individuals with discoverable info Insurance Agreements Computation of Damages Expert Witness List WHY??

Let the Games Begin! Question selection and drafting… Art or Science? Cause of Action Defenses Evidence in its best form Primary sources Strategy Cost Ethics

Objections! Motion for Protective Order Vague Overly Broad Unduly Burdensome List every phone call and describe the nature of the conversation that took place.

Who Should Answer the Questions? Client? Attorney? Wording? Team Effort!

Good Faith Policy of Destruction? Juries can be instructed that documents destroyed may be considered to have held information unfavorable to the one who destroyed them! Companies that have a standard, good-faith Policy of destruction of records will not be penalized. Does your client have such a policy?

Depositions Client Expectations?

Preparing the Deponent Clients typically have expectations based on TV shows… We do not object to everything We are “nice” to the other side We may ask questions that seem irrelevant

Paralegal's Role Listen to outside conversation … gasp! Spy? Take Notes Keep an eye on your witness Observer of human conduct in general?

Deposition Digest Time consuming task, usually given to paralegals Summarize important points What does that mean? See page 335 Mark transcripts or video locations for trial Some come from the reporter in electronic form with Boolean search ability…

Words, words, words IS there a difference between spoken and written words? Explain… So, what should the paralegal look for and make note of?

Stipulations Have objections resolved at trial? Holding or delivering copies of the depo