Civil Procedure I

13 October

• Do a discovery plan and get ready for a Ruls(26)(f) conference with an opposing team.
• Discovery plan is just an internal planning document. The claims and defenses should be the skeleton for this: what do we need to prove all these things?
• E.G.: for pattern and practice, we need to see if there's a history of this stuff.
• Defendants are going to try to establish that deadly force was justified.
• So: who has the evidence? What is it
• Made the discovery plan document
• Agreed to produce voluntary disclosures by end of next Monday (10/20), agreed to resolve all pertinent productions by 12/1.
• The scheduling conference (Rule 16) is optional-- not all courts do it.
• Plaintiff wants their rule 26(f) conference ASAP, because no written discovery can happen prior to that.
• The scheduling conference may well be the first time that both counsel have appeared before the judge
• Meeting
  • Identify counsel
  • When will we be ready to try this case
  • Trial is set for 11/18-25
  • Settle summary judgment timine: oral argument: 12/4-5 Briefs due on 12/19.
  • Settlement negotiation (can use a mediator or magistrate of the court): prior to 11/17
  • Magistrate will decide discovery disputes
  • Written discovery requests due by 5:PM on 16th, 3:PM on the 20th- file responses
  • Discovery cutoff on 10/27, except for expert witnesses (11/7)
  • Depositions on 27th?
• Begin drafting discovery techniques before Wednesday: be agressive, be ready to object.
• Monday: meet and confer letter- dear counsel, you didn't give us X, Y, Z. We request that you give these things over.
• Rule 11: regulation of litigation conduct. The signature warrants that there's a legal basis for everything we file (not just complaints). Sanctions include striking the offending paper, award of expenses, including attorney fees. (The court will issue an order to show cause: show me why I shouldn't sanction you for this). Before you make a rule 11 motion, you need to call the other side and ask them to withdraw.
• Rule 11 attacks on complaints: this case is just frivolous. This is not the means to litigate a case: use 12(b)(6) or 56 (Summary Judgment) to get the case decided on its merits.
• The repercussions go beyond the sanctions: they are very bad for attorney reputations.

15 October

• Contention interrogatories: state all facts on which you base your claim that _____. This might come in handy.
• Rule 11 does not apply to discovery requests and responses, but Rule 37 does cover discovery misconduct.
• Responding to requests, we can just generally talk to the party in question (Ofcr Long, did you beat anyone up in the past)? With a city (or other organization), it can be harder: if anyone in the organization has the info, then "the client" has the info. And we have to make a good faith reasonable effort to respond to questions that are not objectionable

17 October

• Confidentiality and attorney-client privilege infuses all of law practice. But keeping secrets is one of the hardest things.
• Generally when you get a bunch of discovery requests, you will have to go and talk to clients to get the answers. There won't be answers to everything.
• Rule 29: we can stipulate extensions (or other changes) to the discovery procedure.
• Requests for admissions are a little bit like pleadings: responding to them is like answering a complaint. (see Rule 36(b): what you admit is conclusively established). You admit, deny, or neither admit nor deny and explain why.
• Two points in tension with one another. 1: discovery is supposed to be regulated by the lawyers, and conducted in good faith. So we turn over anything that is reasonably calculated to lead to useful information. So refusing to turn something over because it hurts us is not legitimate. We need to assert that it's too vague, or too burdensome, etc. There's a bias in favor of disclosure. This doesn't give away all bargaining chips: you can still get your opponent into trouble with sanctions if they are being unreasonable. 2: there's a tendency to feel wimpy and to be cowed by requests.
• Both sides have the video.
• Most attorney work product is absolutely privileged. Some gets only a qualified privilege. See 26(b)(3): trial preparation materials. Some stuff is a combination of thought processes and other information. Ordinarily, a party can not discover things prepared in anticipation of a trial, except for 26(b)(4): substantial need, should be disclosed, court order
• Privacy interests, trade secrets, etc., don't get the same kinds of privilege. These are the subject of argument, and the court will balance the interests of the parties.
• In this case, we can say that we *will* produce some stuff, or just make it up.