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Discovery top ten fundamentals

10 February 2012
Discovery Fundamentals Top Ten guest author: Sami K. Hartsfield, ACP

Generously reprinted with permission by the Institute for Paralegal Education (IPE). This article came from the IPE monthly newsletter and you can subscribe by contacting them at ipefeedback@nbi-sems.com.

Discovery is the period of time after which a lawsuit has been commenced that adversarial parties to that lawsuit exchange information via a specific, codified procedure in furtherance of the case. The purpose of this is threefold:
A. It is desirable by both the courts and the parties involved that the case can be resolved without the necessity of an expensive and possibly lengthy trial (in reality, statistics tell us that relatively few cases ever go to trial, despite what TV legal dramas would have us believe);
B. To determine which side has the stronger case based on the evidence; and
C. Finally, to commit witnesses to their testimony via such discovery devices as interrogatories and depositions. Should the case ever go to trial, these statements become invaluable as a way to (possibly) impeach a witness, or raise concerns about their credibility should they change their story down the road.
Following are my top ten tips for paralegals working in discovery (I am a paralegal in Texas but I am going by the Federal Rules of Civil Procedure except where noted, then I am using the Texas Rules of Civil Procedure as a general example. Be sure to look up the rules in your state):
  1. There Are Two Types of Discovery: Informal and Formal. Informal is just what it sounds like – the informal exchange of information between two parties without court involvement. Or it could be your own informal Internet search to locate information on the opposing side. This usually takes place at the early stages of discovery, and includes things like people searches, business records searches, or any other type of publicly available information.
  1. Formal Discovery, on the Other Hand, Pertains to Discovery That Follows the Procedural Rules in All its Formalities. That being said, courts still don’t typically become involved in this procedure unless there is a problem, though the discovery requests are propounded on opposing sides and take the format of a formal court pleading. Your attorney may, however, file what’s known as a “certificate of written discovery,” alerting the court to the mutual flow of discoverable information exchanges, though this is not usually required, and is sometimes not even desired. Aside from perhaps setting due dates via some type of docket control order, courts typically don’t become involved in the discovery process unless there is a problem or issue (motion) that needs to be ruled on. The courts largely prefer the attorneys work the process out amongst themselves in a professional manner and in accordance with the rules, though this is not always possible for various reasons.
  1. Interrogatories (Rogs) are Questions Asked of the Opposing Party, Usually Via the Attorney’s Office Representing a Party to a Lawsuit. In Texas, as in most states, they must be answered under oath, under penalty of perjury. For this reason, they are notarized when they are completed, and are the only discovery device that is. Here in Texas, the client must sign his responses. The number and types of questions allowable are specified in the federal (R. 33) and your local rules.
  1. Generally Speaking, Interrogatories Seek Information Relevant to the Case at Hand, and Can Ask Such Things as Educational and Work Background; Basis and Facts Related to the Case; and Information on Any Witnesses That May be Called to Testify, Amongst Other Things. The answering party generally has 30 days in which to respond (unless both sides agree to a postponement, in writing, which is known as a “Rule 11 Agreement,” and must be filed with the court to be enforceable), or raise an objection. If a party does not respond, nor raise an objection (say, on the basis that the question asked is protected under the attorney-client privilege), then the propounding party may file a Motion to Compel, officially asking the court (as this Motion is formally filed with the court) to compel the offending party to respond, or otherwise rule on an objection. The offending party may be sanctioned, up to and including even having the case dismissed, though this harsh of a sanction is extremely rare. The number and types of questions allowable are limited by the rules of civil procedure, as are the responses and time to respond. This process is typically a rather routine, orderly flow and most attorneys can work out delays or issues amicably. Owing to our adversarial system of justice, however, this is not always possible.
  1. Requests For Disclosure (RFD) Under federal rules certain disclosures are automatic and do not have to be formally requested. If your case is in federal court, go to the FRCP, then click Roman numeral V – “Disclosures and Discovery,” then click R. 26 “General Provisions Governing Discovery.” There you will see, under R.26 (a)(1) the list of items required to be disclosed without a discovery request. See also R. 37 “Failure to Make Disclosures or to Cooperate in Discovery; Sanctions.” Of course always be sure to consult your state and local rules. Many state rules require a formal, written request be propounded on OPC. See also my blog entry on this topic at https://samihartsfield.wordpress.com/2011/10/29/federal-discovery-initial-disclosures-are-automatic-under-the-federal-rules-of-civil-procedure/.
  1. Requests for Admissions (RFA) Are an Ordinary Discovery Device Used Primarily to Eliminate Matters About Which There is No Real Controversy, Thereby Streamlining the Litigation Process. Under the FRCP, RFAs are governed by Federal Rules of Civil Procedure, R. 36. Google for your local rules. In Texas, RFAs are specific questions that require the answering party to either admit or deny a particular fact. They must be in writing and may be served only on other parties to the lawsuit at any time after the suit is filed. Texas discovery rules permit the request to be filed with the Original Petition. In that event, the answers are due 50 days after citation of service whereas one would otherwise typically have 30 days in which to respond. ** Please note that if your client is the one answering RFA, and if you do not admit, deny, or challenge the request for admissions by the due date stated in the request, then they automatically become admitted as true as a matter of law.
  1. Requests For Production (RFP), Which Can be Found Under Rule 34 of the FRCP, are a Common Discovery Device Used Between Parties to a Lawsuit so That Documents and Things May be Obtained From the Opposing Sides . This includes:
    1. “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
    2. any designated tangible things; or
    3. to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.”

    The documents and things must be produced as they are kept in the “ordinary course of business,” or an appropriate time and place must be provided for the opposing side to inspect and copy the requested items, provided they are discoverable items.

  1. Depositions by Oral Examination are Covered Under R. 30 Of The FRCP and Must Give Reasonable Written Notice to Every Other Party . If a subpoena duces tecum (the notice to a party deponent may be accompanied by a request under Rule 34 to produce documents and tangible things at the deposition) is to be served on the deponent, the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment. Additionally, the party who notices the deposition must state in the notice the method for recording the testimony. Unless the court orders otherwise, testimony may be audio- or videotaped, along with a written record taken by a court reporter. Oral depositions are limited in duration, number, and scope under the rules of civil procedure. (See also the Federal Rules of Evidence.)
  1. A Deposition May Also be Taken by Written Questions: A party may serve written questions in a sealed envelope on the opposing party, who must deliver them to the court officer. The officer must ask the deponent those questions and record the answers verbatim. See also DWQ under Federal Rules R. 31.
  1. eDiscovery and Electronically Stored Information (ESI): It’s here; get up to speed on ESI as attorneys are traditionally slow to embrace new technology. It can be found in the Federal Rules of Civil Procedure under R. 26(f), for example, which is known as the “meet and confer” rule. This rule necessitates that parties meet at the beginning of the litigation process to discuss any discovery-related issues, including whether or not a party intends to produce or request ESI. A report will then be given to the court, at which time a judge will consider this information and enter a scheduling order affirming the discovery due dates. Incorporate an eDiscovery strategy within your overall discovery plan.
Remember to use this as a go-by only. Always consult your own local rules (both the rules of civil procedure and the rules of evidence) specific to the type of discovery device you and your attorney are employing.
Sami K. Hartsfield, ACP, is a freelance paralegal and writer in Houston, Texas. She conducts medical, legal and factual research, investigations, and client interviews. Ms. Hartsfield prepares all manner of legal documents, including pleadings, witness lists and exhibits, trial notebooks, demand and settlement documents, and deposition schedules and summaries. She also coordinates and manages document production, locates and interviews witnesses and experts, and organizes pleading and trial exhibits. Ms. Hartsfield assists lawyers at trial, gathers and reviews medical records, and maintains general client contact. She recently worked as a Webmaster for a personal injury law firm in the Houston area, and started their social media marketing efforts. Ms. Hartsfield earned her AAS degree from the Center for Advanced Legal Studies and will graduate with a B.S. degree, summa cum laude, from the University of Houston Downtown later this year. She is a member of the National Association of Legal Assistants, the American Association of Notaries, and the Electric Data Extraction Network. You can find Sami’s blog on the Web at LegallyBlog.

Institute for Paralegal Education • 1218 McCann Drive • Altoona, WI 54720 • © 2011, Institute for Paralegal Education, a division of NBI, Inc. All Rights Reserved.

If interested, please see my series on discovery:

What is discovery, and what are interrogatories?

What is a discovery subpoena?

Discovery II: What are requests for disclosure?

Discovery III: What are requests for admissions?

Discovery IV: What are requests for production?

Discovery V: Depositions–What is a deposition on written questions, or DWQ?

NOTE: I am not an attorney. This foregoing is not to be considered legal advice. If you need legal advice, consider hiring an attorney licensed to practice law in your state.

You can find Sami on Facebook and e-mail her with questions, comments, or ideas at LegallyBlog@yahoo.com.

 

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Copyright 2012 Sami K. Hartsfield – All Rights Reserved
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