Civil Litigation

• Interrogatories
•     Party-only
•     Rule: 30 days to answer - Exception: 45 days to answer (if with summons and complaint)
•     Unlimited sets of Interrogatories, maybe a limited number of questions in each set (CHECK LOCAL COURT RULES)
• Request for Production
•     Party Only
•     Documents, Tangible Things, Entry Upon  Designated Land
• Depositions
•     Party and NON-PARTY 
•     Must give REASONABLE notice
•     Send Notice of Deposition to parties, Notice of Deposition and Subpoena to Out-of-State parties and NON-parties
•     ONLY type of discovery that can be done prior to lawsuit
•     Costly
•     TYPES: Oral Deposition, Deposition upon written questions, Deposition to perpetuate testimony
• Mental and Physical Exams
•     Party Only
•     Independent Medical Exam
• Request for Admissions
•   Party Only
•   You reply to request for admissions
•   Rule: 30 days to answer - Exception: 45 days to answer (if with summons and complaint)

• Narrow issues for trial
• Avoid Surprises
• Assess the credibility of witnesses
• Reveal Strengths and weaknesses
• Promote Settlement
• Preserve Evidence
• Promote Consistency

• Husband/Wife
• Atty/Client
• Doctor/Patient
• Clergy/Parishioner
• Work Product
• Patents/Trademarks

Must be in writing

Must state the grounds with particularity

Must state the relief being sought

(Party Only)

• Documents
• Entry unto designated land
• Tangible things

Up to 100 miles from home, work, or place that they transact business

Good Cause - Before deadline

Excusable neglect - After deadline

Summary Judgment considers the pleadings and beyond - so discovery is considered.  Question of LAW

Judgment on the Pleadings - is the pleadings and is a Question of FACT

Testifying Experts - they are discoverable

Consulting Experts - Qualified discovery - meaning - Discoverable under exceptional circumstances when impractical to obtain facts or opinion by other means

Informal Experts - not discoverable

Applies only to ESI

Clawback is when you retrieve information that you disclosed in inadvertently produced ESI which you want to take back (for example if it was work product or you didn't scrub the metadata

(the trial continues)

• motion to compel
• motion to strike
• motion for an enlargement of time
• motion for protective order

• motion for summary judgment
• motion for judgment on the pleadings
• motion to dismiss

• A written question
• Party only
• answered under oath
• party signs answers
• atty signs for objections

• Wisconsin - unlimited number of sets
• Check local court rules for number of interrogatories

Answers due within 30 days - exception is 45 days if the interrogatories were served with the summons and complaint

Engrossing

• Admit
• Deny
• Admit in part/Deny in part
• Objection stating specific grounds
• Neither admit or deny:  After a reasonable inquiry argue that you have insufficient information or knowledge to form a belief.

A preservation letter

Deponent

• 1. oral deposition
• 2. deposition upon written questions
• 3. deposition to perpetuate testimony

Must be reasonably calculated to lead to the discovery of admissible evidence

Paralegals can...

• schedule depositions
• prepare questions
• find a location
• send the Notice of Deposition and/or subpoena

Subpoena Ducus Tecum

• Substantial need
• AND
• Undue Hardship
• AND
• Substantial Equivalent not available

There is no sequence - it is flexible

The party

The burden of deriving the information must be substantially the same for the person answering as for the person asking the interrogatory.

If response to discovery request was COMPLETE when made - there is no duty to supplement.

• EXCEPT:
• New Witness
• New Expert

Must seasonably amend if -

The party knows that the response was incorrect when made

unlimited

• Documents
• Entry unto land
• Tangible Things

• Written statement to admit or deny statements
• *opinion of facts, or the application of Law to Fact

• Written request to admit or to deny genuineness of documents
• *serve documents with request unless they have otherwise been made available for inspection and copying.

(So you don't have to get the party to admit or deny at trial - and don't have to authenticate)

Blackening out

If you don't screen documents (this is not for ESI docs) for a request for production then you negligently disclose information

the next move is a motion for sanctions

If granted - then they can be charged with contempt, sanctions or even dismiss case

• use to impeach witness
• use if witness is dead
• use for expert testimony (if not present)

use to bolster credibility of witness (NO!!!!)

If you do not answer the request for admission, then it is like automatically admitting and it is entered into the court record as fact

If you don't answer completely, it is the same as if not answered at all

Set specific limits on ESI

Can not answer interoggatories or serve a request to inspect until after all parties confir regarding ESI -

• A. Subjects on which ESI discovery may be needed
• B. When such discovery should be completed by
• C. Whether discovery should be in phases or limited to a particular issue

comes in forms of .tiff and .pdf docs

• Too Vague
• Too Broad
• Irrelevant

• Not valid:
• Inadmissible

Yes

other notes:

• deposition is party or non-party
• can be done before trial
• usually have a court reporter, attys, paralegal, videographer...

expensive

Reasonable notice