Q UINCY COLLEGE Paralegal Studies Program Paralegal Studies Program Litigation and Procedure Discovery: Overview and Interrogatories Litigation and Procedure Discovery: Overview and Interrogatories

Key Term Discovery Discovery The process in a lawsuit involving the exchange of information, exhibits, and documents between parties according to specific rules of procedure.

Scope of Discovery Relevance [26(b)(1)] Relevance [26(b)(1)] Under [26(b)(1)], discovery applies to “any matter, not privileged, …including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter, …relevant to the subject matter involved in the action.” Under [26(b)(1)], discovery applies to “any matter, not privileged, …including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter, …relevant to the subject matter involved in the action.” All relevant information is discoverable, even if it later turns out to be inadmissible. All relevant information is discoverable, even if it later turns out to be inadmissible. Relevance [26(b)(1)] Relevance [26(b)(1)] Under [26(b)(1)], discovery applies to “any matter, not privileged, …including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter, …relevant to the subject matter involved in the action.” Under [26(b)(1)], discovery applies to “any matter, not privileged, …including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter, …relevant to the subject matter involved in the action.” All relevant information is discoverable, even if it later turns out to be inadmissible. All relevant information is discoverable, even if it later turns out to be inadmissible.

Scope of Discovery Privilege [26(b)(1)] Privilege [26(b)(1)] Privilege may be asserted only by that person who holds the privilege. Privilege may be asserted only by that person who holds the privilege. Privilege [26(b)(1)] Privilege [26(b)(1)] Privilege may be asserted only by that person who holds the privilege. Privilege may be asserted only by that person who holds the privilege.

Scope of Discovery Trial Preparation Materials [26(b)(3)] Trial Preparation Materials [26(b)(3)] [26(b)(3)] provides limited protection to otherwise discoverable trial preparation and work product materials. Such materials are subject to discovery only when the information is not reasonably available from any other source, and when the discovering party has substantial need for the information. [26(b)(3)] provides limited protection to otherwise discoverable trial preparation and work product materials. Such materials are subject to discovery only when the information is not reasonably available from any other source, and when the discovering party has substantial need for the information. The work product protection applies only to documents prepared by or on behalf of an attorney in anticipation of litigation. The work product protection applies only to documents prepared by or on behalf of an attorney in anticipation of litigation. On the other hand, the mental impressions and legal evaluations of an attorney, investigator, or claims agent enjoy absolute privilege from disclosure. On the other hand, the mental impressions and legal evaluations of an attorney, investigator, or claims agent enjoy absolute privilege from disclosure. Trial Preparation Materials [26(b)(3)] Trial Preparation Materials [26(b)(3)] [26(b)(3)] provides limited protection to otherwise discoverable trial preparation and work product materials. Such materials are subject to discovery only when the information is not reasonably available from any other source, and when the discovering party has substantial need for the information. [26(b)(3)] provides limited protection to otherwise discoverable trial preparation and work product materials. Such materials are subject to discovery only when the information is not reasonably available from any other source, and when the discovering party has substantial need for the information. The work product protection applies only to documents prepared by or on behalf of an attorney in anticipation of litigation. The work product protection applies only to documents prepared by or on behalf of an attorney in anticipation of litigation. On the other hand, the mental impressions and legal evaluations of an attorney, investigator, or claims agent enjoy absolute privilege from disclosure. On the other hand, the mental impressions and legal evaluations of an attorney, investigator, or claims agent enjoy absolute privilege from disclosure.

Scope of Discovery Trial Preparation: Experts [26(b)(4)] Trial Preparation: Experts [26(b)(4)] Parties are generally allowed to depose an opposing party’s expert witnesses who are expected to testify at trial. Parties are generally allowed to depose an opposing party’s expert witnesses who are expected to testify at trial. Only in certain exceptional circumstances are opposing parties allowed to obtain discovery relating to experts not expected to testify at trial. Only in certain exceptional circumstances are opposing parties allowed to obtain discovery relating to experts not expected to testify at trial. No discovery is allowed with respect to any expert that is merely consulted, but not retained. No discovery is allowed with respect to any expert that is merely consulted, but not retained. Trial Preparation: Experts [26(b)(4)] Trial Preparation: Experts [26(b)(4)] Parties are generally allowed to depose an opposing party’s expert witnesses who are expected to testify at trial. Parties are generally allowed to depose an opposing party’s expert witnesses who are expected to testify at trial. Only in certain exceptional circumstances are opposing parties allowed to obtain discovery relating to experts not expected to testify at trial. Only in certain exceptional circumstances are opposing parties allowed to obtain discovery relating to experts not expected to testify at trial. No discovery is allowed with respect to any expert that is merely consulted, but not retained. No discovery is allowed with respect to any expert that is merely consulted, but not retained.

Methods of Discovery Automatic disclosures: i.e., Mandatory disclosures Automatic disclosures: i.e., Mandatory disclosures Depositions upon oral examination: Anyone with relevant information (party or nonparty) may be deposed. Subpoenas are used to secure a nonparty’s appearance at the oral deposition. Each side is entitled to 10 depositions (federal practice), unless otherwise agreed. Depositions upon oral examination: Anyone with relevant information (party or nonparty) may be deposed. Subpoenas are used to secure a nonparty’s appearance at the oral deposition. Each side is entitled to 10 depositions (federal practice), unless otherwise agreed. Depositions upon written questions: A party is entitled to take oral responses to written questions from anyone who might have relevant, discoverable information. Depositions upon written questions: A party is entitled to take oral responses to written questions from anyone who might have relevant, discoverable information. Automatic disclosures: i.e., Mandatory disclosures Automatic disclosures: i.e., Mandatory disclosures Depositions upon oral examination: Anyone with relevant information (party or nonparty) may be deposed. Subpoenas are used to secure a nonparty’s appearance at the oral deposition. Each side is entitled to 10 depositions (federal practice), unless otherwise agreed. Depositions upon oral examination: Anyone with relevant information (party or nonparty) may be deposed. Subpoenas are used to secure a nonparty’s appearance at the oral deposition. Each side is entitled to 10 depositions (federal practice), unless otherwise agreed. Depositions upon written questions: A party is entitled to take oral responses to written questions from anyone who might have relevant, discoverable information. Depositions upon written questions: A party is entitled to take oral responses to written questions from anyone who might have relevant, discoverable information.

Methods of Discovery Written interrogatories: An interrogatory is a set of written responses to written questions, and may only be required of parties to the suit. Each party is limited to 25 interrogatories (federal practice), unless otherwise agreed. Written interrogatories: An interrogatory is a set of written responses to written questions, and may only be required of parties to the suit. Each party is limited to 25 interrogatories (federal practice), unless otherwise agreed. Production of documents and things, and entry onto land for inspection: A request to produce documents may only be directed at a party to the claim, and may only be directed at those documents or land that the party has in his custody/control. Production of documents and things, and entry onto land for inspection: A request to produce documents may only be directed at a party to the claim, and may only be directed at those documents or land that the party has in his custody/control. Written interrogatories: An interrogatory is a set of written responses to written questions, and may only be required of parties to the suit. Each party is limited to 25 interrogatories (federal practice), unless otherwise agreed. Written interrogatories: An interrogatory is a set of written responses to written questions, and may only be required of parties to the suit. Each party is limited to 25 interrogatories (federal practice), unless otherwise agreed. Production of documents and things, and entry onto land for inspection: A request to produce documents may only be directed at a party to the claim, and may only be directed at those documents or land that the party has in his custody/control. Production of documents and things, and entry onto land for inspection: A request to produce documents may only be directed at a party to the claim, and may only be directed at those documents or land that the party has in his custody/control.

Methods of Discovery Physical and mental examinations: When the physical or mental condition of a party is in question, the opposing party may file a motion with the court requesting that the party subject to a mental or physical exam. The requesting party must show good cause as to why the examination is needed. Physical and mental examinations: When the physical or mental condition of a party is in question, the opposing party may file a motion with the court requesting that the party subject to a mental or physical exam. The requesting party must show good cause as to why the examination is needed. Requests for admission: Allows the parties to admit facts not in controversy, eliminating the need to provide supporting evidence. The party from whom the admission is sought may admit, deny, or object to each of the requested admissions. Requests for admission: Allows the parties to admit facts not in controversy, eliminating the need to provide supporting evidence. The party from whom the admission is sought may admit, deny, or object to each of the requested admissions. Physical and mental examinations: When the physical or mental condition of a party is in question, the opposing party may file a motion with the court requesting that the party subject to a mental or physical exam. The requesting party must show good cause as to why the examination is needed. Physical and mental examinations: When the physical or mental condition of a party is in question, the opposing party may file a motion with the court requesting that the party subject to a mental or physical exam. The requesting party must show good cause as to why the examination is needed. Requests for admission: Allows the parties to admit facts not in controversy, eliminating the need to provide supporting evidence. The party from whom the admission is sought may admit, deny, or object to each of the requested admissions. Requests for admission: Allows the parties to admit facts not in controversy, eliminating the need to provide supporting evidence. The party from whom the admission is sought may admit, deny, or object to each of the requested admissions.

Interrogatories

Key Term Interrogatories Interrogatories A discovery device consisting of written questions submitted to another party and answered by that party in writing and under oath.

Drafting Interrogatories 1. Review Rules and Examples 2. Introductory Paragraphs 3. Definitions and Abbreviations 4. Instructions 5. Questions: The Body of the Interrogatories A. General Background B. Pleadings C. Basic Areas of the Case D. Opinions and Legal and Factual Contentions E. Computer Information F. Concluding or Summary Interrogatories

Answering Interrogatories 1. Note Deadline, Review Case File 2. Review Possible Objections 3. Review Questions 4. Gather and Record Information 5. Review Techniques for Answering Interrogatories 6. Draft Answers and Have Them Reviewed, Signed, and Served 7. Update Answers

Analyzing the Answer and Compelling a Response The court may become involved in the discovery process for one of two reasons: The court may become involved in the discovery process for one of two reasons: 1. To issue protective orders to stop abuse of discovery or compel a party to comply with discovery requests; or 2. To award sanctions on a party for refusal to cooperate with discovery requests

End of Discovery: Overview and Interrogatories End of Discovery: Overview and Interrogatories