Drafting and Objecting to Discovery

Putting the Discovery in e-Discovery

1. Defining Discovery (What are Interrogatories and Requests for Production, anyway?)

2. Litigation Timeline: Where ROGs and RFPs fit

3. Twenty Questions (or more...maybe)(Basic rules of the road--using the FRCP as your map)

Defining Discovery--Three main categories

– Document Requests (aka Requests for Production)– Requests for Admission– Interrogatories (penalty of perjury; admissible in

summary judgment)

--Covers anything that is discoverable– Not privileged and relevant to claims and defenses of any party– Must be “reasonably” calculated to lead to the discovery of admissible evidence

____________________________________________* Often favors the side of the wealthy

Interrogatories--Narrow and clarify issues and disputes before the court

-Can be Special, Form and/or Supplemental--Answers may be used

-in as evidence-in summary judgment motions (interrogatories)

-in motions to dismiss-for impeachment-as admissions of a party opponent

**Answers aren't binding and other party can provide evidence to change or dispute their

previous answer-BUT aren't evidence until offered at trial

How many Interrogatories are there in this question...

Please provide the name, address, telephone number and current occupation of the defendant to include the employer name, supervisor name, address and telephone number.

Requests for Production--Obtain documents used to support other party's claim--Obtain documents that they have in their

– Possession; and– Control

--Can be sent to a party OR a non-party– Non-parties require special attention (Business Records Subpoenas, etc.)

--Can be a demand to perform an action (enter property)

Requests for Admission--Used to eliminate need for proof of facts already proven or agreed upon

– One party makes factual statement that other parties are required to admit or deny. (Often also in complaint.)

– Admitted facts don't have to be proven at trial– Usually used at the end of discovery– Used to lay evidentiary foundation for documents or

exhibits at trial– Don't contain editorial comments

_____________________________________________* Organization is key. Remember, facts denied must be

proven and need to be incorporated into pretrial efforts

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Discovery Is Not A TrialBe very careful not to use discovery as a way to try

out trial tactics and argue a case OR discover legal theories of the opponent.

At best, you'll receive vague unusable answers, at minimum you'll receive objections, at worst you'll receive nothing.

Litigation Timeline--Occurs as soon as civil litigation commences--Usually ends about 30 days before trial begins or you run out of questions (or you hit the limit of either reasonability and/or the court's patience)--Often drives parties into settlement (during or after)--Ongoing--Supplementals--But not too ongoing... (see above comment re patience)--This is your paycheck (usually)...

However...This is not Law & Order—no surprises here, Mr. McCoy.

FRCP and DiscoveryFRCP 11—Informal discovery before complaint is filed

FRCP 26—Amendments in 2000 narrowed scope from “relevant to subject matter...” to “relevant to claim or defense...”

* Information relevant to subject matter but not claims or defenses requires court order—FRCP 26(b)(1)* Not really a bright line between the two above (”relevant”)* Amendments not intended as dramatic change to traditionally liberal discovery disclosure goals BUT court does now view asserted claims/defenses and analyzes discovery accordingly* Trends toward being quite utilitarian

FRCP and Discovery, cont.--FRCP 26(a)(1)--Automatic significant self-executing initial disclosures in writing without a formal request

* Identify witnesses and documents that may be used to support claims or defenses; computation of damages; insurance policy- Names of witnesses, subject of their information- Document description and location

DOES NOT APPLY...

1. If parties stipulate not to make disclosures;2. Directed otherwise by court order; and3. Certain proceedings (reviewing administrative records)

FRCP and Discovery, cont.--FRCP 37(c)(1)--Sanctions if disclosures are treated as technicalities * Sanctions include excluding the evidence

– Five Factors• Surprise to party against whom evidence offered• Ability of party to cure surprise• Extent to which allowing evidence would disrupt trial• Importance of evidence• Non-disclosing party's explanation for failure to

comply

** Generally “other person did it, too” and “we couldn't get it” not very successful

FRCP and Discovery, cont.--Initial disclosures signed and served “at or within 14 days after Rule 26(f) conference”

--Additional disclosures mandated by FRCP 26(a)(2) (expert testimony) and 26(a)(3) (pretrial disclosures).

FRCP and InterrogatoriesInterrogatories:

– only directed to parties– Only after Rule 26(f) conference– Party has 30 days to respond– Must be served on all parties if served on one– Usually filing is prohibited by FRCP 5(d)(1) – Limits to 25 INCLUDING subparts (Rule 33(a)) but

court can alter limitation using Rule 26(b)(2)(c))– Can be answered with business records if examination,

audit or inspection yields proper response (Rule 33(d)) and burden of getting answer is relatively the same to both parties

FRCP and Requests for ProductionRequests for Production:

– Rule 34(a) permits asking for documents/electronically stored information in possession, custody or control to inspect, copy, test or sample

– Directed only to parties (Rule 34)– Not limited in number but local rules may constrain you– Generally not propounded until after Rule 26(f)

conference and initial disclosures but party can use Rule 16(b) scheduling order to seek production outside scope of initial disclosures before they're received

FRCP and Requests for ProductionRequests for Production:

– Rule 34 defines what documents are– Rule 34(B)--described with “reasonable particularity”– Rule 34(b)--REQUIRES opposing party to object or file

written response within 30 days of service that states “inspection and related activities will be permitted”

FRCP and Requests for ProductionRequests for Production, cont.:

– Rule 34 objections must be presented timely manner– Ninth Circuit—boilerplate objections are insufficient– Rule 34(b) requires producing party to sort/label

documents to correspond to categories in request or produce them as maintained in course of business—production of mass amounts of unsorted info is violation.

FRCP and Requests for ProductionRequests for Admission:

– Rule 36 “matters within scope of Rule 26(b)(1) for purposes of pending action”

– Only directed to parties– Not limited in number but local court rules may apply– Rule 36(a)(4)--Don't know is only applicable answer if

reasonable inquiry performed and information insufficiency are present

FRCP and Requests for ProductionRequests for Admission, cont.:

– Rule 36(a)(6) allows motions to compel if propounding party unsatisfied with sufficiency of answers

– Court can order matter admitted or compel an amended answer

– Rule 36 allows requesting party having to prove truth of matter or document authenticity to seek reasonable costs INCLUDING ATTORNEYS FEES if responding party failed to make appropriate admissions

Discovery and Electronic InformationNoah's Ark Principle Does Not Apply:

--Party that produces electronic data under no obligation to produce the identical information in paper form.

--Requesting party must use good faith efforts to identify all discoverable information—paper and electronic—and to inform opposing counsel when data is available for production inelectronic form. See, e.g. Noteholders Sec. Litig., 2002 U.S. Dist. LEXIS 26446 (S.D.N.Y. Dec. 31, 2002).

Discovery and Electronic Information--Deleted computer data may be discoverable under Rule 34.See Simon Property Group v. mySimon, Inc., 194 F.R.D. 639, 640, 2000 U.S. Dist. LEXIS 8950 (S.D. Ind. 2000)

-- Rule 26(a)(1)(b) Pre-discovery disclosures rule means that a party must affirmatively search its available electronic systems for relevant information.See Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D.N.Y. Feb. 6, 2006)

Discovery and Electronic Information--Can use Rule 30(b)(6) to push deposition of designated IT

See, e.g., In re CV Therapeutics, Inc., Sec. Litig., 2006 U.S. Dist. LEXIS 38909, n.5 (April 4, 2006) (designee testified to location of data and backup tapes as well as what methods were being undertaken to search for responsive documents);

In re Carbon Dioxide Indus. Antitrust Litig., 155 F.R.D. 209, 214 (M.D. Fla. 1993) (depositions aimed at acquiring information about data maintained on defendants’ computers, including hardware and software, were needed to access the information necessary to proceed with substantive discovery);

Alexander v. FBI, 188 F.R.D. 111, 1998 U.S. Dist. LEXIS 22562 (D.D.C. 1998) (court permitted deposition to learn about email systems and system for acquisition, location, and disposition of computers so as to guide substantive discovery.)

Discovery and Electronic Information--Blanket and/or boilerplate requests for electronic information not allowedSee e.g., Pittman v. Horton, 2001 Mont. Dist. LEXIS 3074 (Dist. Ct. Mont. 2001)(document demand seeking electronic discovery deemed overly broad as it failed to describe the items sought with reasonable particularity)

--Overly broad interrogatories and requests for production are not allowedSee e.g., India Brewing, Inc. v. Miller Brewing Co., 237 F.R.D. 190 (E.D. Wis. July 13, 2006)(court held that plaintiff’s interrogatories requesting defendant to describe in detail the configuration of its entire computer system since January 1, 1998 was overly broad—duh)

Discovery and Electronic Information--Predetermined search terms must not be commonly used in responding party's business or that routinely appear in emails See, e.g., Quinby v. WestLB AG, 2006 U.S. Dist. LEXIS 64531 (S.D.N.Y. Sept. 5, 2006)

--Sanctions appropriate if requesting party demonstrates good faith effort to provide reasonably tailored requests and responding party does not provide full response. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 2002 U.S. App. LEXIS 20422 (2d Cir. Conn. 2002) (discovery sanctions, including an adverse inference jury instruction, may be given when ordinary negligence leads to a failure to produce electronic information)

Discovery and Electronic Information--Can ask for order to have expert examine opponent's computersSee Balboa Threadworks, Inc. v. Stucky, 2006 U.S. Dist. LEXIS 29265 (D. Kan. Mar. 24, 2006).* This is an exception rather than rule

--If your own information management presents difficulty in producing answers to discovery requests you're in BIG TROUBLE: importance of retention policiesSee, e.g., Itzenson v. Hartford Life and Accident Ins. Co., 2000 U.S. Dist. LEXIS 14680 at 3, (E.D. Pa. 2000) (court found defendant’s assertion that it could not retrieve certain statistics “difficult to believe ... in the computer era”)

Discovery and Electronic Information--Don't need to produce electronic data from sources reasonably inaccessible because of burden or cost (Rule 26(b)(2) BUT court can still order production if propounding party shows good cause (Rule 26(b)(2)(b))– Five factors considered when determining “good cause” (Rule 26(b)(c))

• 1. Taking into account the needs of the case, • 2. the amount of the controversy, • 3. the parties’ resources, • 4. the importance of the issues at stake in the litigation, and • 5. the importance of the proposed discovery in resolving the issues.

Court also considers: whether the request is cumulative, whether the propounding party has a sufficient opportunity to obtain the requested information and whether the burden or expense outweigh the likely benefit

--No obligation to produce metadata unless ordered by the courtSee Kentucky Speedway v. Nat’l Ass’n of Stock Car Auto Racing, Inc., 2006 U.S. Dist. LEXIS 92028 (E.D. Ken. Dec. 18, 2006) and rejected Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005) which required it

Limiting Discovery--Cost--Scope

– Privileged Information: Protected and not discoverable even if relevant

• Attorney-client• Spousal• Physician-patient• Clergyman-penitent

ResourcesFederal Courts Law Review: Quest for Proportionality in Electronic Discovery...http://www.fclr.org/fclr/articles/html/2010/Hirt.pdf

Yale Law Journal Online: An Overview of the E-Discovery Rules Amendmentshttp://bit.ly/cSZex4

Limiting the Scope of e-Discoveryhttp://bit.ly/V1HiWQ

Limiting DiscoveryText Messages:

Pennsylvania Supreme Court to Address Admissibility of Text Messages http://bit.ly/PAt3YX

Social Media:

Social Media Login and Password Discovery Requests: A Useful Tool in the Quest for Truth or an Invasion of Privacy? http://bit.ly/R6RRXd

Score One for Plaintiffs in Battle Over Discoverability of Facebookhttp://bit.ly/AeyIlc

Post at Your Own Risk: Pennsylvania Court Permits Discovery of Information on Personal Facebook Profilehttp://bit.ly/vfyUbC

Top 10 eDiscovery Best Practices for Handling Metadatahttp://bit.ly/mEmJd

The Court has broad discretion when reviewing a discovery dispute and “should independently determine the proper course of discovery based upon the arguments of the parties.”

The court should consider “the totality of the circumstances, weighing the value of material sought against the burden of providing it, and taking into account society’s interest in furthering the truth-seeking function in the particular case before the court.”

Mirbeau of Geneva Lake LLC v. City of Lake Geneva, 2009 U.S. Dist. LEXIS 101104 at *2 (E.D. Wis. Oct. 15, 2009)(internal citations removed)(emphasis added)

e-Discovery PlanningData Mappinghttp://www.krollontrack.com/resource-library/

Mapping the Information Infrastructurehttp://bit.ly/V1GIIF

Talking to Attorneys and Clients About e-Discoveryhttp://bit.ly/UqHPih

Data Mapping Back in the Spotlighthttp://bit.ly/SARi4x

E-Discovery Project Planninghttp://bit.ly/aDxfmv

E-Discovery Road Map: Identificationhttp://bit.ly/Ry7YzH

e-Discovery PlanningPiecing Together an e-Discovery Plan by Craig Ballhttp://bit.ly/12iaUSL

Ediscovery Project Managementhttp://bit.ly/T0N0q1

eDiscovery Project Management: Preparing a Budgethttp://bit.ly/U5keqn

Electronic Discovery Action Plan – LexisNexishttp://bit.ly/T0N9K0

E-discovery: Using legal project management to reduce e-discovery and legal costshttp://bit.ly/Y9gYwJ

Getting Ahead of the E-Discovery Curvehttp://bit.ly/UKwcTV

Ask And Ye Shall Receive: Writing ROGs and RFPs

Sample Discovery Objections (Basic)http://www.sniderlaw.com/articles/sample-discovery-objections.pdf

Sample Electronic Discovery Interrogatories and Requests for Productionhttp://bit.ly/U5lOsb

Sample Interrogatories for Electronic Productionhttp://bit.ly/R167BW

Responding to Interrogatorieshttp://bit.ly/Zb46Yx

Getting Ready to Meet and ConferMeet and Confer Checklisthttp://bit.ly/VJY1KS

Musings on Meet and Confer by Craig Ballhttp://bit.ly/cx9cVo

Avoiding Drive-by “Meet and Confers”http://bit.ly/UA1GuK

Preparing for the Initial Meet and Confer Sessionhttp://bit.ly/ZA4hLY

Properly Preparing for a Meet and Conferhttp://bit.ly/SAHL3t

Slaying the Beast Through an Effective 26(f) Meet and Confer by the ABAhttp://bit.ly/Wha84g

Podcast: Applied Discoveryhttps://itunes.apple.com/us/podcast/applied-discovery-litigation/id351116704

ResourcesE-Discovery Dictionaryhttp://bit.ly/TVagnV

Coursera:– Building an Information Risk Management Toolkit– Information Security and Risk Management in Context– Introduction to Computer Networks– Networks: Friends, Money, and Bytes– Computer Architecture

https://www.coursera.org/category/cs-systems

Open University: http://www.openculture.com/freeonlinecourses

Podcasts: ESI Bytes, Legal Talk Network, Digital Detectives, Association of eDiscovery Specialists (ACEDS)http://bit.ly/Wf3qPU

ResourcesSedona Conference

https://thesedonaconference.org/

http://www.discoveryresources.org/standards-and-best-practices/sedona/

https://thesedonaconference.org/publications

FRCP—Explanation for Normal Peoplehttp://lawbrain.com/wiki/Civil_Procedure#Federal_Rules_of_Civil_Procedure

Civil Procedure: LEXIS Civ Pro Guidehttp://www.lexisnexis.com/lawschool/study/outlines/word/civpro.doc (70 pp)

Questions?

Next Class

Drafting Discovery Requests; Objections

Reading: (See Syllabus for Details)Articles:

1. Fed. Practice Manual, 6.2.C Written Discovery Through 6.2.C.3 Requests for Admission, FED. PRAC. MANUAL FOR LEGAL AID ATTORNEYS: CHAPTER 6: PRETRAIL & TRIAL PRAC. (Last Visited May 31, 2015); Access via http://federalpracticemanual.org/node/34.

2. Kroll Ontrack: E-Discovery Sample Forms & Pleadings, Sample Interrogatories.pdf, pp. 27-33. Access document via Student Documents.

Objections:

1. Classic Boilerplate Objections Examples.pdf Access document via StudentDocuments.

2. Kelly D. Stohs, Respond with Caution! Responses to Discovery "Subject to the Stated Objections" May Waive Your Client's Objections, 2014 POLSINELLI, LLC (2014), Access via http://sftp.polsinelli.com/publications/cl/upd0514cl.htm (last visited May 31, 2015).

3. Matthew Jarvey, Boilerplate Discovery Objections: How They Are Used, Why They Are Wrong, And What We Can Do About Them.pdf, 61 DRAKE L. REV., pp. 916-923, Mar. 30, 2013 at (2013). Access document via Student Documents.