Production of Documents/Inspection of “things”

February 16, 2011

Advanced Civil Litigation

Agenda

Deposition assignment Document production/ Inspection of “things”

General overview under Federal and California rules

Paralegal role Preparing for later discovery Procedures for making request or demand Compliance procedures

Documents in possession of third parties

Requesting Documents and Other Tangible Evidence

CCP 2031: Allows inspection of things in control of a party by making a demand/request

Fed. Rules Civ. Proc. 34—similar to state rule

CCP 2031/ FRCP 34

RELATES TO ITEMS IN POSSESSION, CUSTODY OR CONTROL OF PARTY

INSPECTION (COPY) OF DOCUMENTS INSPECTION OF TANGIBLE THINGS INSPECTION OF LAND

Document Production: “The Smoking Gun”

Larry Ellison job harassment case

Why it is important

Special problems with ESI

Paralegal Role—document production

Organize documents prior to requests Help draft documents for request Help locate and produce documents that are

requested Monitor for privileged documents Maintain privilege log Maintain production log

Review—Do you remember other ways to obtain Documents in possession of a party?

Documents in possession of a third person?

Public documents?

The Way Document Production Works

One party requests documents from other party

Requests must be fairly specific: All documents sent to Laura Cross after

1/1/2009 All documents written by Laura Cross after…. All documents dealing with the IVP procedure

of Leo Bradshaw

Another example:

REQUEST FOR PRODUCTION NO. 5: Please produce each and every document, if any, containing notes of any conversation during which was mentioned any one or more of the following individuals:

a. Paula Jones; b. Frank Tappin; c. Larry Patterson; d. Roger Perry; e. Danny Ferguson; f. Ronnie Anderson; g. Pamela Blackard; h. Debra Ballentine; i. Raymond L. "Buddy" Young.

Before you begin

A lawsuit involves 1 million documents. How do you find specific requested documents?

Document Coding See page 338 in text for database fields

“Predictive Coding” Read article on Web site

Let’s Try It

CCP 2031.010 et seq.

Demand to produce/inspect/photograph/ test or sample : Documents Photos Any tangible thing

In custody, control of possession of a party

INSPECTION UNDER 2031

INSPECT PHOTOGRAPH TEST SAMPLE COPY MEASURE SURVEY BY PARTY OR REPRESENTATIVE

The Documents:DEMAND FOR PRODUCTION FIRST PARAGRAPH: DEMANDING PARTY,

SET NUMBER AND RESPONSIDNG PARTY

EACH DEMAND IN A SET TO BE SEPARTELY NUMBERED

DEMAND FOR PRODUCTION (C0NT) DOCUMENTS OR ITEMS TO BE

SPECIFICALLY DESCRIBED BY ITEM OR CATEGORY

SPECIFY REASONABLE TIME FOR INSPECTION AT LEAST 30 DAYS IN FUTURE

DEMAND FOR PRODUCTION (CONT) SPECIFY PLACE FOR INSPECTION

SPECIFY ANY RELATED ACTIVITY (I.E. TEST)

SERVE ON ALL PARTIES

Let’s take a look

http://www.scefiling.org/filingdocs/215/4790/7131e_ExxDxtoxDCL.pdf

(Santa Clara County Efiling Website—document 720 Antelope Valley Cases)

RESPONSE TO DEMAND

MOTION FOR PROTECTIVE ORDER WRITTEN RESPONS

AGREE TO COMPLY OBJECT STATEMENT OF INABILITY TO COMPLY RESPOND TO EACH ITEM SIGNED BY PARTY UNDER OATH SERVED WITHIN 20 DAYS OF SERVICE

Let’s take a look

Antelope Valley cases document 694, 688 and 345

FAILURE TO FILE WRITTEN RESPONSE WAIVER OF OBJECTIONS

RELIEVED BY MOTION

DEMANDING PARTY MAKES MOTION TO COMPEL (AFTER MEET AND CONFER)

MOTION TO COMPEL FURTHER RESPONSE CONTESTS OBJECTIONS OR STATEMENT

OF INABILITY TO PRODUCE

MADE WITHIN 45 DAYS OF SERVICE OF WRITTEN RESPONSE

MOTION FOR COMPLIANCE

MADE AS A RESULT OF FAILURE TO ACTUALLY PRODUCE

The Production

Documents Hire businesses to do this (i.e. Cook and

Assoc.) Set up time and place for inspection an

copying

Practical Aspects of Document Production: Producing Party Organize documents Read and identify documents Code documents Create privilege log

Documents in custody of Non-party

Depostion of Records

Why a deposition?

Only discovery allowed against non-party

Nature of this deposition Not a traditional depo

DEPOSITION OF BUSINESS RECORDS-- CCP 2020.020 et seq. RECORDS NOT IN POSSESSION OF PARTY DEPOSITION SUBPOENA (JC Form Subp-010 COMPLIANCE NO EARLIER THAN 20 DAYS

AFTER ISSUANCE OR 15 DAYS AFTER SERVICE WHICHEVER IS LATER Also must comply with consumer records requirement

NO DECLARATION OF GOOD CAUSE REQUIRED

DEPOSITION OFFICER

PROFESSIONAL, REGISTERED PHOTOCOPIER

NO FINANCIAL INTEREST IN MATTER

DELIVERY OF RECORDS

MADE EITHER AT PLACE OF DEPO OFFICER OR

INSPECTION TAKES PLACE AT OFFICE OF BUSINESS WHOSE RECORDS ARE SOUGHT

DELIVERY OF RECORDS, cont

COMPLY WITH REQUIREMENTS OF EVIDENCE CODE 1560 THROUGH 1563

COMPLY WITH REQUIREMENTS OF NOTICE TO CONSUMER

EVIDENCE CODE 1560-63

CUSTODIAN CAN DELIVER COPY TO DEPO OFFICER WITH PROPER AFFIDAVIT

DEMANDING PARTY MUST PAY FOR COPIES (COST PER PAGE AND PER HOUR FOR PERSON COPYING)

CCP 1985.3--NOTICE TO CONSUMER REQUIRED PRIOR TO DATE FOR

PRODUCTION

SERVED AT LEAST 10 DAYS PRIOR TO PRODUCTION AND 5 DAYS PRIOR TO SERVICE ON CUSTODIAN

Putting it into practice:

You want a party’s school records—what are your timing and service requirements?

It’s February 16 and your attorney says to get them as soon as possible: Subpoena Requirements

Consumer record requirements