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Civil Procedure II Outline - Part 17

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<< Part 16 | Part 18 >>

E-Discovery

nn. Who pays

  1. Rule 26 b1 sets out a cost-benefit formula that the court could use for these purposes.
  2. 26c1b
    1. Now expressly authorizes the court to order the allocation of expenses
  3. 26fc3
    1. At the mandatory discovery conference they must generate a proposed discovery plan that must address “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced.

oo. Handling of a e discovery

  1. Once a party reasonably anticipated litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold to ensure the preservation of relevant documents. As a general rule the litigation hold does not apply to inaccessible backup tapes. Which may continue to be recycled on the schedule set forth in the company's policy. On the other hand if backup tapers are accessible then such tapes would likely be subject to the litigation hold.
    1. Counsel must oversee compliance with the litigation hold monitoring the party's efforts to retain and produce the relevant documents.
Depositions

pp. Depositions are the factual background where the vast majority of litigation actually takes place.

  1. Serving a notice of the time and place of a deposition on a non-institutional party-deponent with copies to the other parties to the action is normally sufficient to secure the party;s deposition.
    1. This is often called “noticing a deposition:.
      1. The notice must specify the method of recording, audio and video taping are expressly permitted under the rules that are gaining in popularity.
        1. 30B3
      2. Can be a place agreed to by the parties
        1. 29
  2. Unlike a party who was served with a summons at the outset of the case a non party is not within the personal jurisdiction of a court or subject to its discovery rules until and unless that non-party is served with process.
    1. Gotta serve a subpoena for a non-party to come, if you want documents with the deposition, a subpoena duces tecum.
      1. Rule 45 authorizes the court where the action is pending issue a subpoena and permits nationwide service.
        1. 45a2 & 45b2
      2. But the subpoena can only command compliance within 100 miles of where the despondent resides or regularly transacts business in person.
        1. 45c
      3. A person objecting to a subpoena can seek relief in the court for the district where compliance is rough
        1. 45d
      4. In state court actions depositions of non-resident non-parties must often be taken under the rules of the deponents home state and then used by rule or reciprocity agreement in the state where the action is pending.
  3. Objections of questions may be made by opposing counsel but “ the examination still proceeds; the testimony is taken subject to any objection. 30(c)(2)
  4. Deposing the corporate or institutional witness.
    1. Institutional parties may be deposed.
      1. Send a letter to corporate HQ describing the matters on which examination is requested. The corporation must then designate a deponent knowledgeable about those matters to testify on its behalf
        1. 30 b 6
  5. Taking the deposition
    1. The answers are live and under oath
      1. 31
    2. All objections made at the time of the examination are noted on the record and the testimony is still taken subject to the objection. 30(c)(2)
      1. Even inadmissible evidence is discoverable, as long as it is relevant and not privileged. In addition most discovery by deposition will never be offered as evidence at trial, rendering any evidentiary objections moot.
        1. If and when selected deposition testimony is offered as evidence at trial the evidentiary objections can be heard then.
          1. For all these reasons most evidentiary objections other than privilege are preserved until trial and need not be made at the depositions.
            1. 32d3a
              1. “An objection to a deponent's company or to the competney relavnace or material of testimony is no waived by a failure to make the objection before or during the deposition unless the ground for it might have been corrected at that time.
      2. Even if he does object, the objection the objection is simply noted by reporter and the witness answers anyway subject to the objection
        1. 30 c 2
      3. If a deponent answers after an objection that the question calls for privileged communications he effectively loses the protection. A later court ruling that sustains the privilege may keep the communication out of evidence but cannot restore their confidentiality.
      4. There are in addition, a small class of evidentiary objections that are waived unless made at the deposition. These are objections made on grounds that can be correct then and there by simply reforming the question.
      5. Rule 30D1
        1. Cautions that objections must be stated concisely in an argumentative and non suggestive manner. And limits the circumstances in which a party may instruct a deponent not to answer
          1. The model rules of professional conduct prescribe “unlawfully obstructing another party's access to evidence'' or “failing to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.
    3. Using the deposition
      1. If the deposition is used at trial or a hearing however it poses a two layered evidentiary problem. A deposition is hearsay: an out of court statement offered in court for its truth.
        1. Rule 32a therefore only permits a deposition to be used under limited circumstances. Even if the rule is satisfied the party of the deposition that its proponent seeks to offer into evidence is itself subject to the rules of evidence.
          1. “Speaking metaphorically a deposition is like a box that contains certain evidence. The court must make two determinations. The first is a procedural one whether to admit the box itself into the rtial. Once the court has decided that the deposition meets these procedural requirements 32a, the courts then must address the ancillary evidentiary issues such as whether
          2. Rule 35 authorizes such an examination, but because of the invasive nature of such an examination the injury cases, however, the plaintiff conceding the inevitable, will stipulate to an examination
            1. 29
    4. Requests For admission
      1. Purpose to narrow the issues for trial.
      2. 36
        1. A party may request that an opposing party admit or deny the truth of statements in the request or the authenticity of documents attached to it. Usually the request is made after other discovery which is needed to frame the statement or locate the document. This timing suggests that the request for admission is less a discovery tool than a pretrial tool used to simplify the case on the eve of trial.
          1. An admission conclusively establishes the matter admitted for the purposes of the particular case.
            1. Event hough rule 26(g)s certification requirement applies to responses to request for admission no less than to other discovery responses, ambiguities in request for admission no less than to other discovery responses ambiguities in the evendeece alway enable the responding party to deny the truth of such ultimate contentions in the case without evening the rule.
Controlling Discovery Abuse Segment 14

qq. The initial control on discovery abuse is the rule 26G certification requirement

  1. 26g1
    1. Certifies that the papers are warranted by law and have a proper purpose
    2. Rule 26 g certification also warrants that disclosures are complete and correct as of the time they are made and neither burdensome nor unduly burdensome or expensive.
  2. 26(g)
    1. Not Unreasonable or unduly burdensome or expensive
    2. Not interposed to harass, delay, or run up

rr. Motions to compel

  1. First the requesting party must try to resolve the dispute informally.
  2. Second, if informal discussion final, the requesting party can file a motion for a court order compelling discovery pursuant to 37a.
    1. In then ruling on the motion the court will then determine the validity of the responding party's objections. Third should the objecting party defy such an order the requesting party can go back to court with a motion for sanctions 37b
      1. The intermediate step of seeking a motion to compel is excused, however if the recalcitrant party has stonewalled discovery by failing to respond to discovery request or to attend its deposition, instead of making particular objections the requesting party can then go straight for sanctions
        1. 37D
  3. Instead of waiting for the requesting party to file a motion to compel the responding party can raise its objection by amotion for a protective order by using protective orders
    1. 26c

ss. Discovery sanctions

  1. Rule 37 gives the court the discretion to impose a discovery sanction that is “just” in the circumstances.
    1. In addition to holding a party in contempt the sanctions can include order deeming specified facts to be established for purposes of the action., precluding the violator from introducing certain evidence, striking or dismissing claims or defense, or even entering a default judgment against the violator.
      1. 37B
    2. The trial courts have broad discretion to decide the sanction but it also states that the trial court should reserve the most severe sanctions (entry of default judgment) for bad faith discovery misconduct, and that a court abuses its discretion if it enters a default when lesser, but equally effective sanctions are available.
  2. Rule 26g carries its own sanctions for violations of the certification requirements
    1. May be imposed by the court on its own initiative
  3. 26g3
    1. Authorizes an “appropriate sanction”
      1. Can be wildly excessive and therefore not appropriate
        1. A court must take into account the “needs of the case
          1. 26g1biii
      2. The only sanctions the rule identifie is making the violator pay the opposing party's reasonable expenses, including attorneys fee.
        1. In practice most courts ignore rule 26g and punish discovery abuse within the rule 37 because most request for sanctions are presented by motions made under rule 37 b
  4. Spoliation
    1. Is the “destruction or significant alteration of evidence or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.
      1. Penalty is assessed by a case by case basis.
    2. A party seeking an adverse inference instruction based on the spoliation of evidence must establish the following three elements
      1. That the party having control over the evidence had an obligation to preserve it at the time it was destroyed
      2. That the records were destroyed with a “culpable state of mind”
      3. That the destroyed evidence was “relevant” to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.
        1. Ex. A “culpable state of mind for purpose of a spoliation inference includes ordinary negligence. When evidence is destroyed in bad faith, that fact alone is sufficient to demonstrate relevance. By contrast when the destruction is negligent, relevance must be proven by the party seeking sanctions.
      4. Typical sanctions for spoliation
        1. Instructing the jury that it could infer that the deleted or destroyed evidence would have been unfavorable to the defendant.
        2. Precluding the spoiler from using certain evidence,
        3. deeming facts adverse to the spoliator established,
        4. striking a claim or defense of the spolator,
        5. or entering a default judgment against the spoliator,
          1. From least severe to most severe.
  5. Using protective orders.
    1. What is the predicate for moving for a protective order
      1. Movant must certify that it has made a good faith effort to resolve the dispute without court action, and then
      2. Showing protective order is necessary to protect it from “ annoyance, embarrassment, oppression, or undue burden and expense.
        1. Rule 26c
        2. Also expressly provides for protection of trade secrets and “confidential research development or commercial information”
          1. This rarely justifies their nondisclosure, but usually provides for a guarded disclosure to a limited number of persons who are required to protect against further disclosures, and sometimes, to return protected material once the case is over.
    2. Deciding motions for protective orders.
      1. Rule 26c motion
        1. Requires the district judge to compare the hardship to the party against whom discovery is sought, if discovery is allowed is denied. He must consider the nature of the hardship as well as its magnitude and thus give more weight to interest and have a distinctly social value than to purely private interests and must consider the possibility of reconciling the competing interests through a carefully crafted protective order.
          1. Balancing test
    3. Special issues presented by protective orders.
      1. Non sharing protective order
        1. Forbids sharing information with other plaintiffs.
      2. Umbrella protective order
        1. Which forbids the requesting party from disclosing to other any information that the producing party designated as confidential"
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