introduction to written discovery propounding and responding written discovery in civil cases: the...

Introduction to Introduction to Written Written

DiscoveryDiscoveryPropounding and RespondingPropounding and Responding

Written Discovery in Civil Written Discovery in Civil Cases:Cases:

The BasicsThe Basics

What is Discovery?What is Discovery? The formal process that a party in a lawsuit The formal process that a party in a lawsuit

uses to obtain information and evidence uses to obtain information and evidence from another party in that lawsuit.from another party in that lawsuit.

Discovery is available to bothDiscovery is available to bothplaintiffs and defendants.plaintiffs and defendants.

Most discovery is in writing, Most discovery is in writing, some of which we willsome of which we willcover today.cover today.

Discovery not covered today includesDiscovery not covered today includesdepositions, medical and physical depositions, medical and physical examinations, etc.examinations, etc.

Why?Why?

To “discover” what To “discover” what evidenceevidencethe other side has.the other side has.

To “discovery” the other To “discovery” the other side’sside’sversion of the story.version of the story.

To hold the other side to To hold the other side to thatthatversion of the story at trial. version of the story at trial.

Ideal Flow of Written Ideal Flow of Written Discovery:Discovery:

Discovery is conducted between the parties, without theInvolvement of the Court.

Note: If there are more than 2 parties, courtesy copiesAre served on all other parties/attorneys.

Plaintiff must wait at least 10 days afterPlaintiff must wait at least 10 days afterdefendant is served with the Summonsdefendant is served with the Summonsto serve a discovery request (unless a to serve a discovery request (unless a motion grants permission). This is rarely motion grants permission). This is rarely an issue.an issue.

Discovery must be Discovery must be completedcompleted at least 30 at least 30 days before first date set for trial (or 15 days before first date set for trial (or 15 days before judicial arbitration), and days before judicial arbitration), and discovery motions heard 15 days before discovery motions heard 15 days before trial.trial.

When Can Discovery When Can Discovery Happen?Happen?

•Anticipate problems. The time runs very quickly, so don’t delay.

Limits on Scope of Limits on Scope of DiscoveryDiscovery

Discovery requests must be reasonably Discovery requests must be reasonably calculated to lead to the discovery of calculated to lead to the discovery of relevant, admissible evidence.relevant, admissible evidence.

The evidence discovered does not itself The evidence discovered does not itself need to be admissible at trial.need to be admissible at trial.

Privileged information (i.e. protected by Privileged information (i.e. protected by a privilege such as the attorney-client a privilege such as the attorney-client relationship) cannot be discovered.relationship) cannot be discovered.

Other limitations exist.Other limitations exist.

Request for AdmissionsRequest for Admissions

Purpose: To ask another party to admit to Purpose: To ask another party to admit to certain facts, or to admit that certain certain facts, or to admit that certain documents are authentic, so that these documents are authentic, so that these facts do not need to be proven or facts do not need to be proven or documents authenticated at trial.documents authenticated at trial.

Form: Can be hand-plead, or Judicial Form: Can be hand-plead, or Judicial Council form DISC-020 with attachments.Council form DISC-020 with attachments.

Frequently used to “sucker punch” self-Frequently used to “sucker punch” self-represented litigants who do not respond.represented litigants who do not respond.

Procedure for Propounding Procedure for Propounding Request for AdmissionsRequest for Admissions

1.1. Complete Request for Admissions form.Complete Request for Admissions form.

2.2. Copy of Request for Admissions is served Copy of Request for Admissions is served on responding party (service by mail is on responding party (service by mail is OK if the responding party is the plaintiff, OK if the responding party is the plaintiff, or a defendant who has filed an Answer), or a defendant who has filed an Answer), along with an unsigned copy of the Proof along with an unsigned copy of the Proof of Service, if mailed.of Service, if mailed.

3.3. Original Request for Admissions and Original Request for Admissions and Proof of Service are retained. They are Proof of Service are retained. They are notnot filed with the Court at this time. filed with the Court at this time.

Judicial Council Form Judicial Council Form Disc-020Disc-020 Your name and address.Your name and address.

The Court’s addressThe Court’s address The case nameThe case name Fill your name in as the Fill your name in as the

Requesting Party. Then Requesting Party. Then responding party is the responding party is the Answering Party. The Answering Party. The Set No. is “1” or “One” Set No. is “1” or “One” if this is your first set.if this is your first set.

Check box 1 to list facts Check box 1 to list facts that you want admitted, that you want admitted, and box 2 for and box 2 for authentication of authentication of documents. You will documents. You will likely need to attach likely need to attach pages.pages.

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PAUL SAMPLE 123 ANYSTREET SACRAMENTO, CA, 95814 916-515-1593 Defendant, In Pro Per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

ACME, INC.

Plaintiff(s)

vs.

PAUL SAMPLE

Defendant(s)

) ) ) ) ) ) ) ) ) )

Case No.: 34-2008-00009999 DEFENDANT PAUL SAMPLE'S RESPONSES TO PLAINTIFF ACME, INC.'S REQUEST FOR ADMISSIONS SET ONE

PROPOUNDING PARTY: ACME, INC. RESPONDING PARTY: PAUL SAMPLE SET NUMBER: ONE (1) RESPONDING PARTY hereby answers PROPOUNDING PARTY’s Request for Admissions: REQUEST FOR ADMISSION NO. 1: Admit. REQUEST FOR ADMISSION NO. 2:

Admits the fact that he was involved in an accident on May 2, 2007, but denies that he was at fault for the accident.

REQUEST FOR ADMISSION NO. 3:

Cannot trutyfully admit or deny the matters set forth in this request because he does not have knowledge of these matters, and despite reasonable inquiry into the matter by reviewing all of the records and information available to him, to obtain information from which the truth or falsity of the matter might be learned.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct. Dated:

Paul Sample, Defendant In Pro Per

Sample Responses to Request Sample Responses to Request for Admissionfor Admission

Your name and Your name and address goes at the address goes at the top of the form.top of the form.

The caption contains The caption contains information about the information about the case.case.

Your answer can admit Your answer can admit part of a question, but part of a question, but deny other parts.deny other parts.

The response must be The response must be verified, meaning you verified, meaning you must swear that the must swear that the responses given are responses given are true.true.

Procedure for Propounding Procedure for Propounding InterrogatoriesInterrogatories

1.1. Complete appropriate Interrogatories Complete appropriate Interrogatories (Form or Special).(Form or Special).

2.2. Copy of Interrogatories is served on Copy of Interrogatories is served on responding party (service by mail is OK responding party (service by mail is OK if the responding party is the plaintiff, if the responding party is the plaintiff, or a defendant who has filed an or a defendant who has filed an Answer), along with an unsigned copy Answer), along with an unsigned copy of the Proof of Service, if mailed.of the Proof of Service, if mailed.

3.3. Original Interrogatories and Proof of Original Interrogatories and Proof of Service are retained. They are Service are retained. They are notnot filed filed with the Court at this time.with the Court at this time.

Form InterrogatoriesForm Interrogatories

Easy to use Judicial Council form for Easy to use Judicial Council form for commonly asked interrogatories.commonly asked interrogatories.

In limited civil cases (under $25,000), use In limited civil cases (under $25,000), use Form Interrogatories- Limited Civil Cases Form Interrogatories- Limited Civil Cases (Economic Litigation) (DISC-004)that have (Economic Litigation) (DISC-004)that have no subparts.no subparts.

In unlimited cases, chose one or more of In unlimited cases, chose one or more of forms DISC-001 Form Interrogatories – forms DISC-001 Form Interrogatories – General, or DISC-002, Form General, or DISC-002, Form Interrogatories- Employment Law (you can Interrogatories- Employment Law (you can also use DISC-004, if you wish).also use DISC-004, if you wish).

Completing Form Completing Form InterrogatoriesInterrogatories Your name and address.Your name and address.

The Court’s nameThe Court’s name The title of the caseThe title of the case Case numberCase number Fill your name in as the Fill your name in as the

Requesting Party. Then Requesting Party. Then responding party is the responding party is the Answering Party. The Set Answering Party. The Set No. is “1” or “One” if this No. is “1” or “One” if this is your first set.is your first set.

On the following pages, On the following pages, choose which questions choose which questions you wish to ask by you wish to ask by checking boxes next to the checking boxes next to the questions you wish to ask.questions you wish to ask.

Note: There is no place Note: There is no place for you to sign the Form for you to sign the Form Interrogatories.Interrogatories.

Responding to Responding to InterrogatoriesInterrogatories

Response must be in writing.Response must be in writing. No Judicial Council form.No Judicial Council form. Typically on “pleading paper,” which Typically on “pleading paper,” which

can be created in any modern word can be created in any modern word processor.processor.

Answers are numbered, and answers Answers are numbered, and answers are given in the same order that the are given in the same order that the questions are asked.questions are asked.

Must be Must be verifiedverified (sworn as true). (sworn as true).

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ACME, INC.

Plaintiff(s)

vs.

PAUL SAMPLE

Defendant(s)

) ) ) ) ) ) ) ) ) )

Case No.: 34-2008-00009999 DEFENDANT PAUL SAMPLE’S RESPONSES TO PLAINTIFF ACME, INC'S FORM INTERROGATORIES- GENERAL SET ONE

PROPOUNDING PARTY: ACME, INC. RESPONDING PARTY: PAUL SAMPLE SET NUMBER: ONE (1) RESPONDING PARTY hereby answers PROPOUNDING PARTY’s Request for Admissions: RESPONSE TO FORM INTERROGATORY 2.3: Yes, I had a driver's license at the time of the incident. It was issued by California, number U0132327, last issued on November 12, 2005. It is a class C license with no restrictions. RESPONSE TO FORM INTERROGATORY 2.4:

I had no other permits at the time of the incident. RESPONSE TO FORM INTERROGATORY 2.8:

I have never been convicted of a felony.




Responding to Form Responding to Form InterrogatoriesInterrogatories

Your name and address goes Your name and address goes at the top of the form.at the top of the form.

The caption contains The caption contains information about the case.information about the case.

Each answer is numbered Each answer is numbered like the interrogatory, and like the interrogatory, and are answered in the same are answered in the same order.order.

Answer each question, being Answer each question, being careful to answer each careful to answer each subpart, if one exists. Read subpart, if one exists. Read the question carefully, and the question carefully, and answer only what it asks. answer only what it asks. You may attach exhibits, if You may attach exhibits, if necessary.necessary.

The response must be The response must be verified, meaning you must verified, meaning you must swear that the responses swear that the responses given are true.given are true.

Propounding Special Propounding Special InterrogatoriesInterrogatories

Special interrogatories ask questions Special interrogatories ask questions that are not included in the Form that are not included in the Form Interrogatories.Interrogatories.

Hand-drafted on pleading paper.Hand-drafted on pleading paper. Cannot have subparts.Cannot have subparts. Should be drafted with care to avoid Should be drafted with care to avoid

common pitfalls.common pitfalls.

Completing Special Completing Special InterrogatoriesInterrogatories

Your name and address goes Your name and address goes at the top of the form.at the top of the form.

The caption contains The caption contains information about the case.information about the case.

General information and General information and definitions are listed.definitions are listed.

Each question is numbered Each question is numbered sequentially. Do not include a sequentially. Do not include a preface, instructions, preface, instructions, subparts, or a compound, subparts, or a compound, conjunctive, or disjunctive conjunctive, or disjunctive question. Do not include any question. Do not include any continuing interrogatories. continuing interrogatories. Any term specially defined Any term specially defined must be typed in all capital must be typed in all capital letters.letters.

Sign and date the Special Sign and date the Special Interrogatories at the end.Interrogatories at the end.

See the full sample in your See the full sample in your handout.handout.

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ACME, INC.

Plaintiff(s)

vs.

PAUL SAMPLE

Defendant(s)

) ) ) ) ) ) ) ) ) )

Case No.: 34-2008-00009999 DEFENDANT PAUL SAMPLE’S SPECIAL INTERROGATORIES TO PLAINTIFF ACME, INC'S SET ONE

PROPOUNDING PARTY: PAUL SAMPLE. RESPONDING PARTY: ACME INC. SET NUMBER: ONE (1)

To plaintiff, Acme, Inc. and to its attorney:

Defendant, Paul Sample, requests that Plaintiff, Acme, Inc. respond to the following

interrogatories separately and fully in writing and under oath, pursuant to Section 2030.010 et

seq. of the Code of Civil Procedure, and that the response be signed by the person making them

and be served on Defendant, Paul Sample within 30 days (35 days if these Interrogatories were

served by mail within California) from the date of service.

In answering these interrogatories, furnish all information that is available to you. If you

cannot answer an interrogatory completely, answer it to the extent possible. If you do not have

personal knowledge sufficient to respond fully to an interrogatory, so state, but make a

reasonable and good faith effort to obtain the information by inquiry to other natural persons or

organizations, unless the information is equally available to the propounding party.

Responding to Special Responding to Special InterrogatoriesInterrogatories

Form and Special Form and Special Interrogatories are Interrogatories are answered the same answered the same way, only the titles way, only the titles and numbers and numbers change.change.

Be sure to verify Be sure to verify your response!your response!

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ACME, INC.

Plaintiff(s)

vs.

PAUL SAMPLE

Defendant(s)

) ) ) ) ) ) ) ) ) )

Case No.: 34-2008-00009999 DEFENDANT PAUL SAMPLE’S RESPONSES TO PLAINTIFF ACME, INC'S SPECIAL INTERROGATORIES SET ONE

PROPOUNDING PARTY: ACME, INC. RESPONDING PARTY: PAUL SAMPLE SET NUMBER: ONE (1) RESPONDING PARTY hereby answers PROPOUNDING PARTY’s Special Interrogatories: RESPONSE TO SPECIAL INTERROGATORY 1: The road conditions were clear on May 2, 2007. RESPONSE TO SPECIAL INTERROGATORY 2:

Just prior to the accident I was traveling at approximately 35 MPH. RESPONSE TO SPECIAL INTERROGATORY 3:

I was not talking on a cell phone at the time of the accident.




Requests for Production/Requests for Production/Demand for InspectionDemand for Inspection

Used by one side to inspect and Used by one side to inspect and copy documents or other tangible copy documents or other tangible evidence held by another party evidence held by another party (it cannot be used to get (it cannot be used to get information from a non-party).information from a non-party).

No Judicial Council form, instead, No Judicial Council form, instead, it is created on pleading paper.it is created on pleading paper.

Production is typically of the Production is typically of the original documents, to be original documents, to be inspected and copied while a inspected and copied while a someone waits, however the someone waits, however the request may allow copies to be request may allow copies to be sent instead.sent instead.

Request for ProductionRequest for Production Your name and Your name and

address goes at the address goes at the top of the form.top of the form.


Describe what you Describe what you are requesting (i.e. are requesting (i.e. inspection and inspection and copying, testing, etc).copying, testing, etc).

Describe each Describe each category of document category of document or thing to be or thing to be produced.produced.

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ACME, INC.

Plaintiff(s)

vs.

PAUL SAMPLE

Defendant(s)

) ) ) ) ) ) ) ) ) )

Case No.: 34-2008-00009999 DEFENDANT PAUL SAMPLE’S REQUEST FOR PRODUCTION OF DOCUMENTS OR THINGS SET ONE

PROPOUNDING PARTY: PAUL SAMPLE. RESPONDING PARTY: ACME, INC. SET NUMBER: ONE (1)

To Plaintiff, Acme, Inc. and to its attorney of record:

Defendant, Paul Sample, demands that you produce and permit the inspection and copying by or

on behalf of himself/herself of the following documents and/or tangible things:

1. Any photographs in your possession and control of the accident scene of the May 2, 2007

accident.

2. Any non-privileged notes, recordings, statements, or other documents commemorating,

recording, or otherwise documenting any interview, meeting, or other contact with any witness

concerning the May 2, 2007 accident.

3. Any and all repair invoices or estimates for the repair of any damages Acme, Inc. contends

were caused by the May 2, 2007 accident.

Request for Production Request for Production (cont.)(cont.)

Describe the time and place Describe the time and place the production is to take the production is to take place (time must be at least place (time must be at least 30 days after personal 30 days after personal service, or 35 days after service, or 35 days after service by mail inside of service by mail inside of California), and, optionally, California), and, optionally, whether you will accept whether you will accept copies instead with a sworn copies instead with a sworn statement that they are statement that they are authentic.authentic.

Date and sign.Date and sign. You should chose a location You should chose a location

for production where you will for production where you will be able to perform the be able to perform the copying, since you will not be copying, since you will not be able to hold onto the original able to hold onto the original documents beyond the time documents beyond the time needed to inspect and copy needed to inspect and copy them.them.

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Defendant Paul Sample demands that the above-listed items be produced on January 15, 2008 at

9:00 a.m., at Bob's Copy Shop, located at 987 Elm St., Sacramento, California, for the purpose of

inspection and copying.

Dated: ____________________

By: ______________________


Responding to Request for Responding to Request for ProductionProduction

Your name and address Your name and address goes at the top of the form.goes at the top of the form.


Respond to each request Respond to each request indicating that you will indicating that you will comply, or why you cannot comply, or why you cannot comply (i.e. what comply (i.e. what happened to the happened to the documents, or who has documents, or who has them), or make your them), or make your objection.objection.

Must be verified unless it Must be verified unless it contains only objections contains only objections (objections do not need to (objections do not need to be verified)be verified)

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ACME, INC.

Plaintiff(s)

vs.

PAUL SAMPLE

Defendant(s)

) ) ) ) ) ) ) ) ) )

Case No.: 34-2008-00009999 DEFENDANT PAUL SAMPLE’S RESPONSES TO PLAINTIFF ACME, INC'S REQUEST FOR PRODUCTION SET ONE

PROPOUNDING PARTY: ACME, INC. RESPONDING PARTY: PAUL SAMPLE SET NUMBER: ONE (1) RESPONDING PARTY hereby answers PROPOUNDING PARTY’s Request for Production:

1. The production demanded in Item No. 1 will be allowed in whole. The documents requested

are in possession of the Defendant and will be included in this production.

2. Is unable to comply with Item No. 2 because no such documents exist. A diligent search, and

a reasonable inquiry has been made in an effort to comply with this demand.

3. The production demanded in Item No. 1 will be allowed in whole. The documents requested

are in possession of the Defendant and will be included in this production.

I declare under penalty of perjury under the laws of the State of California that the foregoing is

true and correct. Dated:


Timing the Request for Timing the Request for ProductionProduction

Give at least 30 days fromGive at least 30 days fromdate of service (35 days ifdate of service (35 days ifby mail in California) toby mail in California) toproduce.produce.

Written response must beWritten response must beserved within 30 days (35 daysserved within 30 days (35 daysif served by mail in California), and if served by mail in California), and is independent from the actual is independent from the actual production.production.

Limits on Quantity of Limits on Quantity of DiscoveryDiscovery

Limited civil cases (Under $25,000):Limited civil cases (Under $25,000): 35 35 combinedcombined form interrogatories with no form interrogatories with no

subparts, special interrogatories, request for subparts, special interrogatories, request for admission, and request for production.admission, and request for production.

If more discovery is required, must seek leave of If more discovery is required, must seek leave of the court through a motion.the court through a motion.

Unlimitied civil cases (Over $25,000):Unlimitied civil cases (Over $25,000): Unlimited form interrogatories, request for Unlimited form interrogatories, request for

production.production. 35 35 eacheach special interrogatories, request for special interrogatories, request for

admission, more can be obtained if declaration admission, more can be obtained if declaration justifying need is completed.justifying need is completed.

If discovery is abusive, responding party may file a If discovery is abusive, responding party may file a motion seeking a protective order limiting motion seeking a protective order limiting discovery.discovery.

General TipsGeneral Tips Discovery is conducted outsideDiscovery is conducted outside

the Court. The Court anticipatesthe Court. The Court anticipatesminor issues to be worked outminor issues to be worked outinformally between the parties.informally between the parties.Communicate.Communicate.

Plan on completing yourPlan on completing yourdiscovery early. Because discovery must be discovery early. Because discovery must be completedcompleted at least thirty days before the first at least thirty days before the first date set for trial, or 15 days before date set for trial, or 15 days before arbitration, whichever is earlier. This means arbitration, whichever is earlier. This means that the last round of discovery must be out at that the last round of discovery must be out at least 60 days before trial or 45 days before least 60 days before trial or 45 days before arbitration (add 5 days if served by mail in arbitration (add 5 days if served by mail in California).California).

General Tips (cont.)General Tips (cont.)

Create a strategy.Create a strategy.Determine what youDetermine what youneed to prove to winneed to prove to winyour case, and makeyour case, and makediscovery requestsdiscovery requeststhat help you obtainthat help you obtainthe information you need.the information you need.

Sometimes establishing what the other Sometimes establishing what the other side doesn’t have is more important side doesn’t have is more important than establishing what they do have.than establishing what they do have.

General Tips (cont.)General Tips (cont.)

Don’t use all of your discovery requests Don’t use all of your discovery requests at once. Save at least a few in case you at once. Save at least a few in case you have follow-up questions, or the first have follow-up questions, or the first set of discovery reveals new avenues set of discovery reveals new avenues that need to be investigated.that need to be investigated.

Remember- all discovery requests must Remember- all discovery requests must be “served” by a person over the age of be “served” by a person over the age of 18 who is not a party to the case (i.e. 18 who is not a party to the case (i.e. not you).not you).

Penalties for Non Penalties for Non ComplianceCompliance

If a side fails to complyIf a side fails to complythe asking side files athe asking side files amotion with the court tomotion with the court toorder compliance (or in theorder compliance (or in thecase of Request forcase of Request forAdmissions, a motion to deem each of Admissions, a motion to deem each of the facts asserted as true.the facts asserted as true.

The result of these motions could The result of these motions could include financial sanctions, or even the include financial sanctions, or even the loss of the case.loss of the case.

Other Resources:Other Resources: Win Your LawsuitWin Your Lawsuit by Nolo Press, Chapter 10 by Nolo Press, Chapter 10

(Self-Help Section)(Self-Help Section) California Practice Guide: Civil Procedure Before California Practice Guide: Civil Procedure Before

TrialTrial by The Rutter Group, Chapter 8, by The Rutter Group, Chapter 8, (KFC995.W45 v.2)(KFC995.W45 v.2)

CEB Action Guide- Obtaining Discovery: CEB Action Guide- Obtaining Discovery: Initiating and Responding to Discovery Initiating and Responding to Discovery ProceduresProcedures (KFC 1020.Z9 T53 or OnLaw) (KFC 1020.Z9 T53 or OnLaw)

CEB Action Guide- Creating Your Discovery PlanCEB Action Guide- Creating Your Discovery Plan (KFC 1020.Z9 C74 or OnLaw)(KFC 1020.Z9 C74 or OnLaw)

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