Professionalism/Ethics Series: Ethical Issues Arising While Conducting Discovery in 42 U.S.C Cases

Transcription

1 Professionalism/Ethics Series: Ethical Issues Arising While Conducting Discovery in 42 U.S.C Cases Seminar Topic: This course is designed to discuss common discovery tactics in the prosecution of section 1983 cases. In addition, we will discuss some inventive tactics that could be employed and some new developments in case law. This material is intended to be a guide in general. As always, if you have any specific question regarding the state of the law in any particular jurisdiction, we recommend that you seek legal guidance relating to your particular fact situation. The course materials will provide the attendee with the knowledge and tools necessary to identify the current legal trends with respect to these issues. The course materials are designed to provide the attendee with current law, impending issues and future trends that can be applied in practical situations. Page 1

2 Copyright 2015 Printed in the United States of America. All rights reserved. No part of this monograph may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, except for citation within legal documents filed with a tribunal, without permission in writing from the publisher. Disclaimer: The views expressed herein are not a legal opinion. Every fact situation is different and the reader is encouraged to seek legal advice for their particular situation. The Apex Jurist, is Published by ApexCLE, Inc South Emerson St., Suite 248 Mount Prospect, Illinois Toll Free South Spring Street Springfield, Illinois Toll Free Ordering Information: Copies of this monograph may be ordered direct from the publisher for $24.95 plus $4.25 shipping and handling. Please enclose your check or money order and shipping information. For educational, government or multiple copy pricing, please contact the publisher. Library of Congress Cataloging-in-Publication Data ApexCLE, Inc. 1. ApexCLE, Inc. 2. Law-United States Guide-books. 3. Legal Guide 4. Legal Education. Page 2

3 About The Author Kellie Walters graduated from DePaul University with a baccalaureate in Sociology in She then spent two years working as a domestic violence counselor in an emergency shelter before enrolling in John Marshall Law School beginning in January During that time she was an intern at the John Marshall Fair Housing Legal Clinic for four semesters and spent several semesters employed as a legal research assistant. In 2006, Walters graduated John Marshall and enrolled in Northwestern Lewis and Clark Law School in Portland, Oregon to receive her L.L.M. in Environmental and Natural Resources Law. During that time, she wrote her L.L.M. thesis on the oil drilling in southeast Nigeria, its effect on the Ogoni tribe and the ongoing litigation. She also taught seminars at the Portland Community College about the relationship between Environmental Law and Human Rights. Upon returning to Chicago, she worked with the Civil Rights Center litigating cases involving police misconduct until they closed their doors in Ms. Walters started a solo practice focusing on state civil litigation, bankruptcy, and transactional law. Author s Address: Author s Website: Author s Mailing Address: kelliewalters@gmail.com W. Huron St. Suite 4E Chicago, Il Author s Phone Number: Page 3

4 Professionalism/Ethics Series: Ethical Issues Arising While Conducting Discovery in 42 U.S.C Cases I. Prior to filing a Complaint a. Letters i. Send litigation hold letter to client ii. Send letter to preserve to any Defendant or third party b. FOIA Requests i. A way of obtaining information when you don t have a pending case to attach the request. ii. Might keep you on the right side of Rule 11 c. 27(a) Depositions Fed. R. Civ. P. 27 i. prior to filing of an action, petition the court to perpetuate testimony from a party that will not be available later ii. must file a VERIFIED petition and there are extremely stringent requirements for petition to be granted DON T RELY ON THIS Page 4

5 II. After Filing a Complaint a. Written Discovery i. 26(a) Disclosures Fed. R. Civ. P name, address and phone number of anyone with information 2. documents and tangible items 3. computation of damages 4. insurance info 5. expert witnesses 6. DO NOT NEED TO DISCLOSE ANYTHING SOLELY USED FOR IMPEACHMENT ii. Interrogatories Fed. R. Civ. P May serve on any other party 2. Limited to 25 interrogatories, INCLUDING SUBPARTS 3. Respond with answers and objections within 30 days of service a. If not objected to in a timely fashion, it is waived Page 5

6 4. Verification a. Signature of person answering b. Signature of attorney making objections iii. Requests to Produce or Inspect Fed. R. Civ. P May serve on any other party 2. Must a. Give reasonable particularity of the objects to be produced b. Specify a reasonable time, manner and place for inspection c. Specify form in which electronically stored information is to be produced 3. Respond with answers and objections within 30 days of service 4. Depending on the level of security of the place you intend to inspect, you may require a court order 5. Nonparties can be compelled to produce tangible objects or provide inspections too Page 6

7 iv. Requests to Admit Fed. R. Civ. P Any other party a. Requesting admission of i. Facts, application of law to fact or opinions; and ii. Genuineness of described documents 2. Admit, deny or object within 30 days of service a. If not answered, its deemed admitted b. Objection that cannot simply state the request contains an issue for trial v. Written Depositions Fed. R. Civ. P Normally depositions are oral, but sometimes a written deposition is more appropriate a. Oral deposition or written depositions? 2. Can be conducted on any party a. Sometimes will need leave of court 3. Notice must be served on all other parties a. Notice of completion must also be sent Page 7

8 4. Follow up a. Cross examination questions must be sent within 14 days after being served with the notice and direct questions; b. redirect examination questions must be sent within 7 days after being served with cross-questions; and c. recross examination questions must be sent within 7 days after being served with redirect questions. vi. Subpoenas 1. Don t forget about subpoenas! 2. Issue subpoenas to non-parties re: relevant Information b. Oral Discovery i. Oral Depositions Fed. R. Civ. P Any person, including the party a. May need leave of court in certain circumstances Page 8

9 2. Can be conducted any time or place 3. Must provide reasonable written notice a. Notice of Deposition for parties to the case and subpoenas for non-parties b. Time and place c. Deponents name and address 4. Should you videotape depositions? 5. Objections a. Must answer the questions anyway, except i. when information is privileged ii. when information violates a limitation imposed by the court iii. when a Motion to terminate or limit becomes necessary ii. 30(b)(6) Depositions Fed. R. Civ. P. 30(b)(6) 1. through subpoena 2. deposing an organization Page 9

10 III. Discovery Disputes 3. deponent organization names the party that will testify on its behalf. 4. For the purpose of getting policy information a (NDIL Local Rules) i. requires a statement that 1. there was consultation between the parties and made good faith attempts to resolve discovery disputes 2. attempts to engage were unsuccessful ii. with particularity b. Motion to Compel Fed. R. Civ. P. 37 i. Can be made against a party or non-party ii. The court will not hear a Motion to Compel without the 37.2 correspondence iii. Be specific about what you re looking for in your Motion 1. Seeking disclosure or response? a. Evasive or incomplete answers may be treated as incomplete answers Page 10

11 IV. Other Facts iv. Reimbursement of expenses appropriate? 1. Expenses associated with having to file the motion, including attorney s fees must be awarded in certain circumstances if the motion is granted v. Give the procedural history vi. A court may not hear or grant a Motion to Compel if discovery is already closed, so stay aware of deadlines. a. Motions to Extend Discovery i. See whether you can file it as agreed ii. Do it early, if possible. iii. Tips 1. Procedural history 2. Reason for extension 3. How many previous extensions a. Damn good reason if this is your 6 th extension 4. Not an attempt at delay Page 11

12 b. Protective Orders 5. Assure the judge this will not prejudice any party i. Extremely common in 1983 cases. ii. However, is it necessary? V. Things to Consider when Drafting Discovery Requests a. Identify evidence required for all elements of each claim, defense, and damages (as viewed from all sides of the case) VI. Things to Consider When Reviewing Responses to Discovery a. Review opposing party s disclosures and index by which element of claim, damages, or credibility to which they pertain discovery Page 12