Advanced Civil Litigation Class 11Slide 1 Production of Documents Scope Scope Includes documents of...

Advanced Civil Litigation Class 11 Slide 1

Production of DocumentsProduction of Documents ScopeScope

Includes documents of all types, including pictures, Includes documents of all types, including pictures, graphs, drawings, videosgraphs, drawings, videos

Includes documents stored electronicallyIncludes documents stored electronically Does not include privileged info or work productDoes not include privileged info or work product Can be avoided if it would be too burdensome to Can be avoided if it would be too burdensome to

produceproduce ProcedureProcedure

Request similar to interrogatories or deposition Request similar to interrogatories or deposition notices served on the other party by mailnotices served on the other party by mail

Internal Preparation for the Production and Internal Preparation for the Production and Inspection RequestInspection Request A cost-benefit analysis must be made to determine A cost-benefit analysis must be made to determine

if you can really analyze all the info you requestif you can really analyze all the info you request Don’t “bite off more than your office can chew”Don’t “bite off more than your office can chew”


Drafting the Request for Production Drafting the Request for Production The heading should be the same as the complaint, The heading should be the same as the complaint,

etc.etc. This can be part of a “combined discovery request.This can be part of a “combined discovery request.

Use a separate paragraph for each type of Use a separate paragraph for each type of document you’re seekingdocument you’re seeking

Some guidelines for drafting the request:Some guidelines for drafting the request: Describe what you want to the extent that a Describe what you want to the extent that a

reasonable person would understand what you’re reasonable person would understand what you’re looking forlooking for

Organize by type of evidence requestedOrganize by type of evidence requested Include an instruction that the other party explain Include an instruction that the other party explain

which documents are being produced with regard to which documents are being produced with regard to each questioneach question Don’t just let them give you big pile of documents…Don’t just let them give you big pile of documents…

Specify that you’re also looking for electronically Specify that you’re also looking for electronically stored informationstored information


Getting Ready and Serving the RequestGetting Ready and Serving the Request

The request must be signed by an attorney for The request must be signed by an attorney for the firmthe firm Preferably the one directing the discoveryPreferably the one directing the discovery

The request should be sent by certified or The request should be sent by certified or registered mailregistered mail

Since the request does not have to filed with the Since the request does not have to filed with the court, make sure that you get an court, make sure that you get an acknowledgment of the request.acknowledgment of the request.

Don’t send discovery requests by email unless Don’t send discovery requests by email unless you know and trust your opponent. Emails are too you know and trust your opponent. Emails are too easy to pretend you never got or to alter.easy to pretend you never got or to alter.


Preparing for Production of DocumentsPreparing for Production of Documents

Spoliation and the Duty to Preserve Evidence Spoliation and the Duty to Preserve Evidence Destruction of evidence can be a crime or at least Destruction of evidence can be a crime or at least

contempt of court. Therefore, you should in general:contempt of court. Therefore, you should in general: Have the clients adopt a document retention policyHave the clients adopt a document retention policy Inform the client of the duty to preserve evidenceInform the client of the duty to preserve evidence Sent a “litigation hold letter” if litigation is imminent, Sent a “litigation hold letter” if litigation is imminent,

telling the client’s employees not to destroy or give out telling the client’s employees not to destroy or give out documentsdocuments

Initial Steps—ChecklistInitial Steps—Checklist Similar to checklist for interrogatories (page 358-359)Similar to checklist for interrogatories (page 358-359)

Locate Documents/Computer DataLocate Documents/Computer Data Pull Files and DocumentsPull Files and Documents

Converting Paper to Electronic Files (Imaging)Converting Paper to Electronic Files (Imaging) ““Pulling” Electronically Stored Information Pulling” Electronically Stored Information


Preparing for Production 2Preparing for Production 2 Screen Pulled Files and DocumentsScreen Pulled Files and Documents

Objectives of the Screening ProcessObjectives of the Screening Process Identify documents that should be producedIdentify documents that should be produced Organize them and classify themOrganize them and classify them Match documents with the question that requested themMatch documents with the question that requested them

Use a standard numbering system to match each Use a standard numbering system to match each document with the element of the case it is relevant todocument with the element of the case it is relevant to

Have the Attorney Review the DocumentsHave the Attorney Review the Documents Extract Privileged and Work Product DocumentsExtract Privileged and Work Product Documents

RedactionRedaction When turning over electronically stored documents, When turning over electronically stored documents,

use formats like a non-writeable .pdf; not something use formats like a non-writeable .pdf; not something that can be altered by someone else later on.that can be altered by someone else later on.


Preparing for Production 3Preparing for Production 3 Have Documents CopiedHave Documents Copied

Keep the original in the original file; make a copy for Keep the original in the original file; make a copy for the opponent and a copy so that you can have all the opponent and a copy so that you can have all the documents you turned over in one convenience the documents you turned over in one convenience placeplace

Prepare Documents for Examination Prepare Documents for Examination Retrieve the DocumentsRetrieve the Documents Return the Documents and Retain IndexesReturn the Documents and Retain Indexes Quality ControlQuality Control

The firm’s system, whereby every request is indexed The firm’s system, whereby every request is indexed and recorded, should be maintained regarding every and recorded, should be maintained regarding every discovery processdiscovery process

SecuritySecurity Documents should be kept under lock and keyDocuments should be kept under lock and key Electronice documents must be password protectedElectronice documents must be password protected


Analyzing the Opponent’s Document ProductionAnalyzing the Opponent’s Document Production

Apply the same process discussed earlier Apply the same process discussed earlier regarding:regarding: Making sure you understand which document was Making sure you understand which document was

produced in reference to which questionsproduced in reference to which questions This can help provide context for the documentThis can help provide context for the document

Review the documents for compliance with your Review the documents for compliance with your requests. requests. If the opponent didn’t comply, tell the opponent. If If the opponent didn’t comply, tell the opponent. If

the failure is consistent or repeated, consider the failure is consistent or repeated, consider moving for sanctions against themmoving for sanctions against them

Then, organize them in terms of relevance to your Then, organize them in terms of relevance to your casecase Make it easy for someone analyzing each element Make it easy for someone analyzing each element

to find the documents related to that elementto find the documents related to that element


Request for Physical and Mental ExaminationRequest for Physical and Mental Examination

Purpose Purpose Good cause is required- it has to have a strong Good cause is required- it has to have a strong

relationship to an element of the caserelationship to an element of the case ScopeScope

Only a party (or someone under a party’s control) can Only a party (or someone under a party’s control) can be forced to submit and only for good causebe forced to submit and only for good cause

ProcedureProcedure Set Up the ExamSet Up the Exam Draft the DocumentsDraft the Documents

Notification of time and place of examNotification of time and place of exam Motion for Compulsory Physical Examination if Motion for Compulsory Physical Examination if

necessarynecessary Inform the ClientInform the Client Request the Report after the exam- each side is Request the Report after the exam- each side is

entitled to a copy of the report of any Rule 35 examentitled to a copy of the report of any Rule 35 exam


Request for AdmissionRequest for Admission

PurposePurpose To dispense with having to prove facts at trial that there’s To dispense with having to prove facts at trial that there’s

no real dispute over; saving the court’s time as wellno real dispute over; saving the court’s time as well ProcedureProcedure

Send a statement of the facts you want admitted, along Send a statement of the facts you want admitted, along with supporting documents, if anywith supporting documents, if any

Preparing the Request for AdmissionPreparing the Request for Admission Don’t ask compound questions; make every aspect you’d Don’t ask compound questions; make every aspect you’d

like admitted into a separate questionlike admitted into a separate question Responding to a Request for AdmissionResponding to a Request for Admission

Must respond within 30 days or it is deemed admittedMust respond within 30 days or it is deemed admitted You can certainly qualify an admission; admit it partially, You can certainly qualify an admission; admit it partially,

etcetc Just explain what you’re admitting and what you’re notJust explain what you’re admitting and what you’re not

You can amend your response if new facts come to light…You can amend your response if new facts come to light…


Objections, Compelling Discovery, and SanctionsObjections, Compelling Discovery, and Sanctions

Objecting to Discovery requestObjecting to Discovery request You must notice your opponent that you’re not You must notice your opponent that you’re not

responding because you object; you can’t just ignore the responding because you object; you can’t just ignore the requestrequest

Protective OrdersProtective Orders This is a pre-emptive order from the course that certain This is a pre-emptive order from the course that certain

info need not be turned over because it’s privileged or info need not be turned over because it’s privileged or work product or whatever the grounds arework product or whatever the grounds are

Compelling DiscoveryCompelling Discovery If a party objects and/or refuses to comply, you can ask If a party objects and/or refuses to comply, you can ask

the court to force the party to comply by motionthe court to force the party to comply by motion SanctionsSanctions

If the party fails to comply with a discovery request or If the party fails to comply with a discovery request or fails to follow a court order, Rule 37 provides that the fails to follow a court order, Rule 37 provides that the party can be sanctioned by the court, including:party can be sanctioned by the court, including:

Striking part of the pleadings, monetary sanctions, etc.Striking part of the pleadings, monetary sanctions, etc.


The Freedom of Information ActThe Freedom of Information Act Definition and PurposeDefinition and Purpose

This requires most government agencies to give out This requires most government agencies to give out non-classified information to anyone wo requests itnon-classified information to anyone wo requests it

This can be a valuable source of information during This can be a valuable source of information during the discovery processthe discovery process

There is virtually no limit as to what can be soughtThere is virtually no limit as to what can be sought ProcedureProcedure

There are specific request filing procedures under There are specific request filing procedures under federal lawfederal law

LimitsLimits Classified info, internal personnel rules and practices, Classified info, internal personnel rules and practices,

trade secrets, private party’s confidential info, some trade secrets, private party’s confidential info, some law enforcement records, some other types of info law enforcement records, some other types of info protected for national security purposes, etc.protected for national security purposes, etc.


Organizing FilesOrganizing Files Use cover sheets that indicate the info on the Use cover sheets that indicate the info on the

caption on course papers.caption on course papers. Separate file by:Separate file by:

PleadingsPleadings Discovery requests to plaintiff with responsesDiscovery requests to plaintiff with responses Discovery requests to defendant with responsesDiscovery requests to defendant with responses Notices of deposition and transcriptsNotices of deposition and transcripts Motions (use a separate sub file for each motion, Motions (use a separate sub file for each motion,

including supporting papersincluding supporting papers Don’t be afraid to have the same document in many Don’t be afraid to have the same document in many

different folders if it’s relevant to different parts of different folders if it’s relevant to different parts of the casethe case

Memoranda of lawMemoranda of law Trial recordTrial record Appellate documentsAppellate documents

Advanced Civil Litigation Class 11Slide 1 Production of Documents Scope Scope Includes documents of...

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