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Discovery Practice (Series: Newbie Litigator School - Fall Edition)

If you say the word “discovery” to a litigator, the reaction may not be kind. Discovery-the exchange of relevant information- usually in the form of documents or oral depositions, takes up the majority of a litigator’s time and costs clients the most money.

To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/discovery-practice-2020/

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Discovery Practice (Series: Newbie Litigator School - Fall Edition)

  1. 1. 1
  2. 2. 2 Practical and entertaining education for attorneys, accountants, business owners and executives, and investors.
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  5. 5. Disclaimer The material in this webinar is for informational purposes only. It should not be considered legal, financial or other professional advice. You should consult with an attorney or other appropriate professional to determine what may be best for your individual needs. While Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate, Financial Poise™ makes no guaranty in this regard. 5
  6. 6. Meet the Faculty MODERATOR: Adam Hirsch - Roetzel & Andress PANELISTS: Max Stein - Boodell & Domanskis, LLC Matthew Christensen - Angstman Johnson Steven Reingold - Saul Ewing Arnstein & Lehr, LLP 6
  7. 7. About This Webinar – Discovery Practice If you say the word “discovery” to a litigator, the reaction may not be kind. Discovery-the exchange of relevant information- usually in the form of documents or oral depositions, takes up the majority of a litigator’s time and costs clients the most money. This webinar begins with a summary of the rules governing discovery. In particular, we discuss newer federal rules governing the preservation and discovery of electronic data and information, and the concept of “proportionality” in discovery. We also discuss the practicalities of discovery: budgeting, tactics, and common opportunities and pitfalls. This hour demystifies a mystifying process, and provides listeners with what they need to know to not get tripped up in litigation. At the very least, you will understand why the acronym “ESI” causes our panel to wince. 7
  8. 8. About This Series – Newbie Litigator School – Fall 2020 Edition Has it been a couple of (or more) years since you took Civil Procedure in law school? Or perhaps you a business owner who has been sued repeatedly and you want to learn a bit about how the sausage is made. This series is one of several series (together with the “Newbie Litigator School” Parts 2 and 3) that Financial Poise designed specifically for attorneys who could use a broad-brush yet pithy refresher about civil litigation fundamentals, with some real world color added in. The purpose is to introduce different components and phases of litigation, from the basic rules of civil procedure and evidence, to dispositive motions, through trial, and on to appeal and post-judgment collection work. Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and executives without much background in these areas, yet is of primary value to attorneys, accountants, and other seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that participants will enhance their knowledge of this area whether they attend one, some, or all episodes. 8
  9. 9. Episodes in this Series #1: The Federal Rules of Civil Procedure Premiere date:10/8/20 #2: Discovery Practice Premiere date: 10/28/20 #3: Dispositive Motions Premiere date: 11/18/20 #4: Working With Experts Premiere date: 12/16/20 9
  10. 10. Episode #2 Discovery Practice 10
  11. 11. Discovery Practice  “Discovery” means the pre-trial phase of litigation in which parties to the case take steps to uncover and understand the relevant facts. 11
  12. 12. The Rules  Discovery is governed by the applicable Rules of Civil Procedure. Every state’s rules are different, though many of the principles and concepts are similar. We will be using the Federal Rules of Civil Procedure as our baseline for today’s discussion. You should check to make sure you understand which set of rule are going to apply to your case. 12
  13. 13. Fed. R. Civ. P. 26:  Rule 26 is the touchstone rule for discovery under the Federal Rules. Rule 26(b)(1) provides:  Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. 13
  14. 14. What Comes First?  Under Federal Rule 26(a)(1), litigants are required to make initial discovery disclosures at the start of a case. These disclosures include: (1) The name, address, and telephone number of each individual likely to have discoverable information (2) A copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment 14
  15. 15. What Comes First? (3) a computation of each category of damages claimed by the disclosing party- who must also make available for inspection and copying under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered. (4) For inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. Fed. R. Civ. P. 26(a)(i)-(iv) 15
  16. 16. Trial and Error in Early Discovery  The United States District Court for the Northern District of Illinois implemented a pilot program that changed how initial disclosures and discovery worked in that district.  From June 1, 2017 to June 1, 2020, the Northern District of Illinois ran a three-year pilot project, known as the “Mandatory Initial Discovery Pilot Project,” which studied whether requiring parties in civil cases to respond to a series of standard discovery requests before undertaking other discovery will reduce the cost and delay of civil litigation.  Though no new cases are being added to the pilot program, we will not know the results of this study until all pending participating cases have concluded. Source: https://www.ilnd.uscourts.gov/Pages.aspx?jYyawIFLXKMJrmXzxFk8lw== 16
  17. 17. What Did the Pilot Program Do?  Per the Court’s Standing Order: o As part of an examination of discovery practices endorsed by the Judicial Conference of the United States, the Court is participating in a pilot project that requires mandatory initial discovery in all civil cases other than: (1) cases exempted by Rule 26(a)(1)(B)1, (2) actions under the Private Securities Litigation Reform Act (“PSLRA”), (3) patent cases governed by a local rule, and (4) cases transferred for consolidated administration in the District by the Judicial Panel on Multidistrict Litigation. The discovery obligations addressed in this Standing Order supersede the disclosures required by Rule 26(a)(1) and are framed as court-ordered mandatory initial discovery pursuant to the Court’s inherent authority to manage cases, Rule 16(b)(3)(B)(ii), (iii), and (vi), and Rule 26(b)(2)(C). Unlike initial disclosures required by current Rule 26(a)(1)(A) & (C), this Standing Order does not allow the parties to opt out. Source https://www.ilnd.uscourts.gov/_assets/_documents/MIDP%20Standing%20Order.pdf 17
  18. 18. Written Discovery  Discovery occurs in both written (paper) and oral forms.  Written discovery includes:  Requests for the production of documents (Rule 34)  Written questions that must be answered under oath, called “interrogatories” (Rule 33)  Requests for admission (Rule 36).  Discovery of information held by non-litigants is governed by Rule 45. 18
  19. 19. Written Discovery  Request for the Production of Documents o Fed. R. 34(a)(1) provides: o In General. A party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: (A) any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or (B) any designated tangible things; 19
  20. 20. Written Dsicovery  Request for the Production of Documents (cont.) o Documents Requests are an instrument to tell your opponent which documents you want produced. Document Requests need not be perfectly tailored to each particular document you want (asking for documents by category or type is fine), but legitimately vague or overbroad document requests may be objected to. o Document Requests that use terms of art that are undefined or do not prescribe a reasonable time limit are likely to draw objections. 20
  21. 21. Written Discovery  Responding to Requests for the Production of Documents o Clients should be provided with copies of the other side’s document requests immediately. Parties are obligated to conduct reasonable searches for responsive documents and information. If your client is a corporation, any person working for that corporation who might be in possession of responsive documents should be contacted and asked to search for them. Any possibly responsive documents should be forwarded to the attorney for review, and the attorney, working with the client, can make the final determinations as to which documents are to be produced. 21
  22. 22. Written Discovery  Interrogatories o Fed. R. Civ. P 33(a) provides: (1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(1) and (2). (2) Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time. 22
  23. 23. Written Discovery  Interrogatories (cont.) o Interrogatories are most often used for three objectives:  To learn names and background information of potential witnesses beyond those required to be disclosed under Rule 26(a).  To learn facts  To cause the other side to disclose or take positions on certain discrete issues. These type of interrogatories are called “contention interrogatories.” 23
  24. 24. Written Discovery  Requests For Admission o Fed. R. Civ. P. 36(a)(1) provides:  Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents. 24
  25. 25. Written Discovery  Effect of Failing to Respond to Requests for Admission o Fed. R. Civ. P. 36(a)(3) provides:  Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court. 25
  26. 26. Oral Discovery  Depositions o Oral discovery means depositions (Rule 30). A deposition is an examination of a witness under oath by a lawyer. These examinations do not take place in court, but the witness’ testimony is given under penalties of perjury. Under the Federal Rules, depositions can last up to seven hours. o A deposition of a party or party representative does not require a subpoena. You can compel such a witness to appear for a deposition by serving a “Notice of Deposition” on opposing counsel. 26
  27. 27. Oral Discovery  Depositions (cont.) o If you want to depose someone at a company, but don’t know who is going to be able to testify knowledgeably on the topics you’re interested in, you can notice a corporate representative deposition under Rule 30(b)(6), and that corporation has to find the right person, or provide someone who will represent the corporation’s knowledge on the particular topics at issue: 27
  28. 28. Oral Discovery  Depositions (cont.) o “In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization.” Fed. R. Civ. P. 30(b)(6) 28
  29. 29. Discovery  Discovery From Non-Parties o Consistent with this maxim, under Fed. R. Civ. P. 45, a litigant can send a subpoena to a non-party to compel the production of documents, a deposition, or both. The subpoena recipient is obligated to respond fully and truthfully, even though there are not a party to the litigation. 29 “The public has a right to every man’s evidence.” - Lord Chancellor Hardwicke (1742), quoted in United States v. Monia, 317 U.S. 424, 432 (1943).
  30. 30. Discovery  Expert Discovery o Rule 26(a)(2) governs discovery of expert witnesses. An expert witness is one who testifies as to her opinion, as opposed to a witness who testifies only about facts. There are well-established standards for the discovery of expert opinion testimony. 30
  31. 31. Discovery  Expert Reports and Depositions o Expert witnesses who are going to testify at trial are subject to Rule 26(a)(2)(A) and (B), which requires they produce a written report and other disclosures: (A) In General:  In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. 31
  32. 32. Discovery  Expert Reports and Depositions (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. 32
  33. 33. Discovery  Expert Reports and Depositions (cont.) o The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. 33
  34. 34. Discovery  Expert Reports and Depositions (cont.) o Rule 26(a)(4) governs expert depositions in Federal Court: (4) Trial Preparation: Experts. (A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided. (B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded. 34
  35. 35. Discovery  Expert Reports and Depositions (cont.) (C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications: (i) relate to compensation for the expert's study or testimony; (ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party's attorney provided and that the expert relied 35
  36. 36. Discovery Disputes  If you cannot agree with your opponent about a discovery issue, most courts require you to attempt to come to a compromise or accommodation before bringing the dispute to the Court’s attention. Courts typically do not like to be presented with contested discovery issues.  Before filing a discovery motion, Federal Rule 37 requires that the movant certify “that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.”  State courts typically have similar “meet-and-confer” requirements. 36
  37. 37. Discovery Sanctions  If a motion to compel discovery is required, and if that motion is granted, courts have broad discretion to fashion sanctions or other relief to deter further wrongdoing. Typically, the first step is an order compelling discovery. A court may also order the party who lost a discovery motion to pay the attorneys’ fees of the victor. 37
  38. 38. Discovery Sanctions  If an order compelling discovery is not complied with, a court may enter a further order: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. Fed. R. Civ. P. 37(b)(2)(A) 38
  39. 39. About the Faculty 39
  40. 40. About The Faculty Adam Hirsch - AHirsch@ralaw.com Mr. Hirsch focuses his practice on commercial and business litigation, representing a wide variety of clients ranging from individuals to small business owners to large corporations. He has a particular focus on investment disputes and business fraud claims, and has represented investors and investment companies as plaintiffs and defendants in lawsuits around the country. Mr. Hirsch regularly writes and presents on current issues relating to business fraud. He also has extensive experience litigating contract disputes, and has argued and tried multi-million dollar contract issues before judges and juries nationwide. Mr. Hirsch also has experience in advising clients in employment disputes relating to matters such as separation, severance, non-solicitation, and non-compete agreements. 40
  41. 41. About The Faculty Max Stein - mstein@boodlaw.com Max Stein, a member of Boodell & Domanskis, LLC, is a business litigator focused on meeting clients’ business objectives, helping them resolve disputes at the most opportune times. Max represents clients as both plaintiffs and defendants in a wide variety of forums. Additionally, Max notes that one advantage of practicing at a smaller firm, is that he is able to offer his clients high-quality, nimble representation at reasonable rates. To aid his clients in achieving their business objectives, Max approaches cases as though they will go to trial, utilizing his extensive trial experience. Max also counsels his clients, helping to identify and navigate legal risks to achieve their business goals and protect their competitive interests while managing and, where possible, avoiding the expense and uncertainty of litigation. 41
  42. 42. About The Faculty Steven Reingold - Steven.Reingold@saul.com Steven Reingold is Partner at Saul Ewing Arnstein & Lehr. He handles a broad array of litigation matters for clients throughout the country, including general commercial litigation and related risk management and avoidance, management‐side employment counseling and litigation, and business bankruptcy and bankruptcy litigation. Steven’s litigation and consulting experience includes participating as lead counsel or co‐counsel in complex commercial and bankruptcy-related disputes resolved through negotiation, mediation, arbitration, and litigation, as well as advising clients regarding, and drafting documents pertaining to, employment, contractual, and numerous other business‐related issues. In his bankruptcy practice, Steven represents debtors, official creditors’ committees, trustees, creditors, and other interested parties in insolvency proceedings involving companies of varying sizes and industries. In addition, Steven counsels clients on issues relating to the restructuring of debt and alternatives to bankruptcy, including out-of-court workouts, sales of assets to strategic buyers, equity infusions, assignments for the benefit of creditors, and compositions. He also participates, from the initial investigation through the post-trial stage, in complex commercial and bankruptcy-related litigation matters. Steven has served as an adjunct professor at New England School of Law, where he taught a class in Legal Research and Writing. 42
  43. 43. About The Faculty Matthew Christensen - mtc@angstman.com Matt Christensen joined Angstman Johnson in 2008 as an associate attorney. Now a member of the firm, Matt has a civil litigation practice involving commercial law (finance and secured transactions), bankruptcy, real property, and business matters. He also has a transactional practice involving real estate, finance and business matters, including franchising. Matt frequently represents bankruptcy trustees and other fiduciaries in recovering assets and administering estates. Prior to joining the firm, Matt was a Junior Partner at a Meridian, Idaho, law firm and also established a solo practice. In addition to practicing law, Matt is an adjunct professor at the University of Idaho College of Law where he teaches international trade/business, real estate transactions and law practice management courses. To read more, go to https://www.financialpoise.com/financialpoisewebinars/faculty/matthew- christensen/ 43
  44. 44. Questions or Comments? If you have any questions about this webinar that you did not get to ask during the live premiere, or if you are watching this webinar On Demand, please do not hesitate to email us at info@financialpoise.com with any questions or comments you may have. Please include the name of the webinar in your email and we will do our best to provide a timely response. IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education. 44
  45. 45. About Financial Poise 45 Financial Poise™ has one mission: to provide reliable plain English business, financial, and legal education to individual investors, entrepreneurs, business owners and executives. Visit us at www.financialpoise.com Our free weekly newsletter, Financial Poise Weekly, updates you on new articles published on our website and Upcoming Webinars you may be interested in. To join our email list, please visit: https://www.financialpoise.com/subscribe/

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