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DISCOVERY & DEPOSITIONS

SEPTEMBER 6 Password- polisi RULE 34 o Usually first set for production of docs is submitted with first set of interrogatories If non-party, have to service deposition subpoena RULE 34 (a) o Rule 26- overarches and fits everything, so it has to be relevant, etc. RULE 34(b) o Sets out procedure 34(b)(2): supposed to keep doc in the way that its kept Theres no limit to the amount of docs you can request GETTING STARTED o Say this is a set of interrogs pursuant to and this is what you have to do and how you have to do it (instructions) o Costs- American rule is that parties pay for their own discovery o Can sometimes recover costs o Exception if the cost is unduly burdensome, you might be able to file motion to shift costs to other party but you have to make really good cost to judge Give special instructions about privilege this is what you want your other party to know Definitionsdefine the basic terms Requests What documents to request: o Any and all docs and communications containing the name, home and business address and qualifications of all persons who have been retained or specially employed by Plaintiff(s) in anticipation of litigation or preparation for trial and who are not expected to be called as witnesses at trial or as to whom no such decision has yet been made, and attach any docs or communications received from said person(s). If there are no docs or communications, then the name of said person(s) as well as their home and business addresses should be provided o Any and all docs and communications which support Plaintiff(s) claims for wage loss and impairment of earning capacity and/or power o The name, home and business address, background and qualifications of any and all persons in the employ of Plaintiff(s) who in anticipation and/or preparation of litigation, is expected to be called to trial o Any and all documents and communications containing the name and home and business addresses of all individuals contacted as potential witnesses o What docs should be requested in a sexual harassment lawsuit? o Phone calls, surveillance video, sexual harassment policy, REQUESTS FOR DOCS NO. 1 o Any and all docs which support, evidence, relate or otherwise pertain to any and all personnel policies of Defendant in effect from [date] to the present, including but not limited to: (a) employee discipline policies REQUESTS FOR DOCS 2 o Any and all docs relating to or evidencing any investigation by Defendant into Plaintiffs internal complaint of sexual harassment to Defendant including bu t not limited to: (a) written statements of witnesses (b) notes of interviews w/ witnesses tape recording of any and all oral statements and/or interviews of witnesses transcriptions of any tape recordings of any and all oral statements and/or interviews of witnesses
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DISCOVERY & DEPOSITIONS


reports regarding the results of any and all investigations correspondence received from or sent to P Correspondence received from or sent to D Correspondence received from or sent to any person other than Ds counsel Documents relating to or evidencing discussions between P and D Documents relating to or evidencing discussions

REQUESTS FOR DOCS 3 o Any and all docs which support, evidence, relate to, or otherwise reflect any action taken by D Caption- YR-1? Dont ask for docs in context of interrogatories Periods and commas always go on the inside of quotations! Plaintiff/defendant dont always have to be capitalized- just pick one and stick to it If in superior court use mass rules IF YOU RECEIVE A SET OF INTS o Dont be tempted to answer them! o The ints. Are addressed o the client, not you! o The ints must be... YOUR JOB IS o Assist the client to phrase answers so that you satisfy Rule 33 and dont reveal work product or privileged info o Exception: attorney responds to ints that ask about legal theories or what issues will be presented at trial o Exception: attorney asserts objections WHAT THE CLIENT MUST DO o Person answering must provide info within his or her personal knowledge o Person answering must provide info that can be gathered by diligent inquiry of employees, representatives, agents, contractors, legal counsel, and by reviewing records o Harder for corps than individuals o Respond within 30 days BASIC RULES FOR RESPONDING TO INTS o Minimum standards o Client, not attorney, must answer o Answers must be in writing o Answers must be complete and sufficient. Respondent must furnish all info requested, even if it takes addition investigation. Either answer the burdensome int or object to it o Each int must be answered separately. If redundant, you can refer back to an answer o Identical ints served on co-parties must be answer by each party even if answers are the same and all are represented by the same attorney Basic rules (contd) o Ints must be answered under oath and signed by the person who answers them. One sworn affadavit that all answers are true and accurate can be made at the end to cover all; in fed court, oath doesnt have to be notarized, but states vary o Answers must be based on personal knowledge. on information and believe is not sufficient. o If you object you must state grounds in details o If you object in part, you must provide as much info as you can o Attorney signs the objections. One signature at the end is sufficient o Serve answers within 30 days, unless parties have agreed to a dff period in scheduling order

DISCOVERY & DEPOSITIONS


When an int asks for info concerning content of business records, you can give the records instead of answering. If voluminous, you can give the client everything Make sure you understand the question CAPTION AND INTRO INTRUCTIONS AND DEFINITIONS Answering the Ints o The f Valid objections o Privilege Make a clear and specific objection setting forth the factual and legal foundation for the assertion of privilege o Work product o Irrelevant to claims and defenses and therefore beyond scope of rule 26(b) o Too vague or ambiguous to know what is being asked o Too broad; not sufficiently precise to know what is being asked o Exceeds the limit on the number of interrogatories permitted o Unduly burdensome bc of amount of research, time, or cosdt required to find out answer o Asks for a legal conclusion o Seeks docs or contents of docs that require a motion to produce rather than an interrogatory I am a PLAINTIFF Request for production of docs due Sunday at noon- limit is 10
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SEPTEMBER 13 Answering the Request 1- we dont have anything 2- we dont have ETHICS IN DISCOVERY Conflicts of interest, fairness, honesty Witness preparation Rule 3.3: lawyer cant knowingly make false statement of fact or law to a tribunal o Tribunalagency, jury, bench trial, any factfinder or decisionmaker o Also covers failure to disclose Rule 4.1in the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person or fail to disclose a fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client Rule 1.8a lawyer related to another or intimately involved w/ another lawyer shall not represent a client in a representation directly adverse to a person whom the lawyer knows is represented by the other lawyer except upon consent by the client after consultation Rule 1.7== general rule on conflicts of interest rd 3.1candor towards 3 parties Rule 3.4lawyer shall not make frivolous discovery request or fail to make reasonably diligent effort to comply w/ a legally proper discovery request by an opposing party
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SEPTEMBER 20

CASE THEORY Case theory operates at 3 levels: o Legalelements o Factualwhat happened, and why, and what does it look like happened

DISCOVERY & DEPOSITIONS


Persuasive (theme)something that echoes throughout the trial, appeals to the jury In the end, the legal, factual, and persuasive theories of the case will be unitary Legal theory o Why, as a matter of law, we win o Will an order allowing/denying summary judgment withstand a challenge on appeal that the plaintiff was/wasnt entitled o

PLAINTIFFS CLAIMS Claim 1: Gender Discrimination o She can show she didnt make partner and males made partner, other woman didnt make partner, and she deserved the partner position/she was treated differently Claim 2: Quid Pro Quo Sexual Harassment o When their relationship ended she was treated differently, didnt have as many billable hours, had less work Claim 3: Hostile Work Environment o Similar to sexual harassment points o Have to prove it was gender based o Ended a voluntary sexual relationship and in retaliation was denied partnership (by not getting work assignments) Claim 4: Defamation o Letters, phone calls, trying to find new job, something that harmed her rep, something that deterred someone from hiring her o Has to be false info DEFENDANTS DEFENSES D didnt initiate the relationship Deny P received excellent evaluations over the employment period Deny P&G rejected P for partnership in the firm b/c she terminated the relationship Deny quid pro quo Deny Clark sexually harassed P and that there was a hostile workplace Deny Clark maliciously made false statements, deny defamation Deny P&G ratified statements Deny emotional distress, etc. FACTUAL THEORY What are the facts What are the facts we need to be able to establish Are there facts that both sides will agree on How are we going to separate facts from conclusions, impressions, interpretations How do we show what really happened; why Do the facts differ from the perception of the facts LEGAL THEORY One Legal theory Polisi has available to her: strongest one is prob gender discrimination o Weakness: she couldnt do the hours toward the end anyway; Cliff told her to wait and she didnt o She has to show she was declined partnership b/c; men made it o Travel OBJECTIVES OF DEPOSITION The objectives are keyed to the theories and themes you are pursuing. How are you going to: o Discover the story

DISCOVERY & DEPOSITIONS


Yours The other sides Lay the foundations for docs (is it his handwriting, etc) Learn the witnesss spin or perspective; what does Simon/law firm say about case (prob that she wasnt as competent as the men) Obtain admissions and test theory (that she he had 20 gfs, every women he was in relationship w/ no longer at firm) Lock in the witness for trial

o o o o

BRAINSTORMING Discuss facts, not law 8 rules of brainstorming: o There are no bad ideas o Do no self-censor o Do not critique other peoples ideas o Do not comment on other ideas o The rules of evidence are irrelevant o Only facts and not conclusions or inferences may be stated no spinning o All facts must be recorded o The brainstorming session is time limited GOAL #1: Identify the good facts v. bad facts Good: o All the other women left firm o She terminated affair o He initiated affair o Good evaluations o Was given a second chance? o Got letter from NCW saying she did very well on the case o Second version of note Bad: o She never spoke about inappropriate behaviors/actions by Simon o Post on TWEN: Reading, no written assignment due next week
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SEPTEMBER 27

BEGINNING THE DEPOSITION What dont I know? What do I need to know? Want to get a good look at the witness and see what they know Never ask a question to which you dont know the answer - NO! You want to ask question to which you dont know the answer Never ask a why question- NO o Why, Simon, wasnt Polisi made partner? Never ask an open-ended question- NO; in depositions you do want to ask depositions who what, where, when, why Ask only leading questions- NO. Ask open ended too Do not ask a question where the answer would hurt your theory of the case - NO PURPOSES OF TAKING A DEPOSITION See slide Ask what dont I know? not what do I know? What do I have to ask questions about? Write an outline- after youve done research and look at all docs

DISCOVERY & DEPOSITIONS


o o o Topics are already given on our sheet (in real life, have to figure out topics ourselves) Deposition should be about 5 min Can work together

PREPARATION (DEFAMATION) Whats the statement? What facts do I need? Letter- who signed it, whats it say If youre Simon, what facts do you know the she had emotional distress? You only need to know who else saw it, did you consult a doctor: develop facts to be discovered BEGINNING THE DEPOSITION Dont need to sit there and type all witnesss answers Usual stipulations- what are the usual stipulations? Are they not something thats already in the rules? dont waive reading and signing o Objections for matters other than form are reserved for later o Then figure what you want to stipulate to o Should usually stipulate to this deposition will go according to rules of civ pro Build rapport: How did you get to be chairman of the litigation committee? o Introduce yourself, who you represent, ask if the person is comfortable, introduce court reporter and tell them theyll right down what theyre saying, tell them they need to respond with a verbal answer o Ask to call them by their first name (if you want) o Ask if theyve been deposed before; if not, explain relative roles of parties, explain lawyers can object, but explain that under rules they have to answer anyway but only exception is if their lawyer tells them not to answer Close the understand door: o If you (person being deposed) dont understand what I ask, you can say I dont understand, please rephrase the question Is there any reason at all why you might not be able to give fair and truthful answers today? (HUMOROUS EXAMPLE) Q: all your responses must be oral, ok? Be carefully how you frame your questions- ask simple questions, words people understand

THE FUNNEL APPROACH This is the KEY to the deposition! Open ended questions- ask broad questions to get broad answers o Each of us have been assigned 1-3 funnels (within our topics) o What dept did you work in? Did you work with anyone else? anybody else? EXHAUST What else? What else? What else? Is that all? FOLLOW UP Clarifying (you dont remember how many women or what their names are?), narrowing, focusing on the topic, getting all the details. Should I chase that rabbit? (are you going to go down the path witness wants you to go down, or continue on the path youre going?)

DISCOVERY & DEPOSITIONS


Turn generalized conclusion into specific verifiable facts (what is the expectation for the billable hours?) th What usually happens to associate and P&G if they get a C on evaluation in 5 year? Did that happen in Ms. Polisis case?

FILLING IN THE GAPS Gathering additional info Think of facts that should naturally follow Do what you can to limit the witnesss ability to claim to remember something later or at trial What about _____? Was there ____? Have you _____? Is it _____? Did you ____? Try not to use the word remember RECAPITULATE (Summarizing) Start with As I understand it is that right? so theres nothing more than? OCTOBER 18
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DIFFICULT OPPOSING COUNSEL half class- defends or plays part of witness, other half- deposition RESULTS OF IMPROPER TACTICS Cause dissension not inherent in the real differences between the parties Divert communication form the real facts and real issues Obstruct the chance to reach reasonable, acceptable solutions Turn the litigation process so that the tactics, not the merits, are the focus of the dispute LACK OF CIVILITY, WHERE? Depositions In the courtroom On the phone RECOGNIZING THE OBSTREPEROUS LAWYER- common obstructionist tactics Improperly instructing a witness not to answer a question Clarifying questions unnecessarily Speaking objections Interrupting the witness who is answering questions Lengthy colloquies Inappropriate recessing Private consultations while a question is still pending Blatant rudeness Profanity Ad hominem attacks Use of vulgar gestures or threats of violence SCREAMING MEANIES Paramount Communications, Inc. v. QVC Network: FIGHTING RAMBOS

DISCOVERY & DEPOSITIONS


Lawyers who think they can win by intimidation, throw fits in the middle of depositions, coerce w/ threats and psychological pressure, oppose everything

THE OBJECTOR Objects to every questions, objects and improperly instructs the witness not to answer Howell v. Standard Motor Products Mass R. Civ. P. 30(c) RELEVANCE Remember: the question need not call for admissible or relevant evidence, just reasonably calculated to lead to discovery of admissible evidence (FRCP 26(b)(1)) Dont debate it The witness cannot understand the question Lawyer should not declare he doesnt understand the question Tell the witness at the outset that he should feel free to ask for clarification at any time The witness and I agreed at the start that he would tell me when he didnt understand correct way to do it Dont speculate If you know Dont guess Dont speculate You dont want to say these things THE OBJECTOR- SOLUTIONS Ignore Confront- ask the basis of the objection and remind counsel of Mass. R. Civ. P. 30(c) Make a record Ask good questions If you have no been able to get answers, suspend disposition and go to court THE CONSULTOR Objects to every question Objects and improperly instruct the witness not to answer Hall v. Clifton Precision THE CONSULTOR- SOLUTIONS Make a record Ask the hard questions right after the break Cite Hall v. Clifton Precision THE CONTROLLER Coaching witness with multiple or speaking objections Taking breaks/conferring with witness Improperly interjecting even when lawyer doesnt represent witness A combo of all the others Cholfin v. Gordon I instruct the witness not to answer Force the defender to articulate the basis for the instruction If your inquiry is proper, dont abandon it Might ask stenographer to mark the question and instruction ot the witness or create an index

DISCOVERY & DEPOSITIONS


Consider rephrasing the question and asking it later Motion to compel?

THE CONTROLLER-SOLUTIONS Ignore Confront- do not agree to breaks if in the middle of a question or a line of questioning Make a record Ask good questions Go to court THE LEGAL BULLY Bullies the witness with the tone of the questions Bullies the witness by asking the same question over and over Bullies other lawyers This deposition is over! Most of the time, improper to terminate deposition unilaterally See Fed. R. Civ. P. 30(c) Examination continues, subject to objections Or, examination may be suspended to get a protective order- must communicate Make clear record THE LEGAL BULLY- SOLUTIONS Stay calm Confront bully Prepare your witness in advance for how to deal w/ a bully DONT BECOME A BULLY YOURSELF! DIRTY TRICKSTERS DINOSAURS Attorneys that are overly friendly Calls you by your first name THE BEST DEFENSE IS A GOOD OFFENSE Prepare your witness o Listen carefully to each question o Ask that question be repreated or tell lawyer if you dont understand o Answers should be short o Dont guess or speculate o Pause before answering o objection as to formpay attention before responding o Basic concepts of attorney/client or other relevant privileges o Late afternoon slumpfocus o No false sense of security in response to friendliness o Watch out for factual assumptions contained in questions o We will do more with witness preparation at a later date Know your place o You are not a potted plant o Take an active role in protecting the witness and the record o Confidently assert objections o Sit next to deponent and encourage him not to answer until you have a chance to object

DISCOVERY & DEPOSITIONS


o Put an end to aggressiveness but dont be aggressive Dont allow repetitive questioning o Some repetition is unavoidable o Repeated repetitions causes inconsistencies o Take notes so you can object to needless repetition o Other than what the witness has testified too? o If unreasonable, place objection on record then tell witness not to answer o Dont allow double-teaming Protect the privileges o Know your privileges and when you can assert them o Protect the witnesss privileges o Discuss area of sensitivity in advance o Dont waive privilege, for example, by opening the door Insist on proper form o Objections as to form are waived if not asserted o Listen carefully o State grounds precisely o Common objections as to form: Too broad Compound Asked and answered Calls for conjecture, speculation Ambiguous, imprecise, unintelligible Argumentative, abusive, improper characterization Assumes as true facts in dispute Question misquotes a witnesss early testimony Question calls for an opinion from a witness not qualified to give one Dont allow hypothetical questions o Inappropriate of fact witnesses Dont allow abuse Engage in defensive techniques Practice equality
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NOVEMBER 29