PREPARING FOR DISCOVERY AND DEPOSITIONS/ HOW NOT TO LOSE YOUR CASE BEFORE TRIAL*

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Ira Martin French
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1 PREPARING FOR DISCOVERY AND DEPOSITIONS/ HOW NOT TO LOSE YOUR CASE BEFORE TRIAL* Speaker: J. Andrew Nathan Nathan, Bremer, Dumm & Myers 7900 East Union Avenue Suite 600, Denver CO (303) * I wish to thank Nick Poppe, my law clerk and soon to be associate, for his assistance in preparation

2 Understanding the Larger Picture Attorneys and Clients need to understand the entire process of litigation Early actions may affect future options/outcomes Pre-litigation/Pre-loss investigation Discovery Litigation Appeals

3 Cost of Average Cases Average employment law jury verdict is: $325, Edition of Jury Award Trends and Statistics Westlaw Average fees awarded to plaintiff s attorney are: $125,000 to upwards of $750,000 Pre/post judgment interest rate: 9% Average defense costs: $100,000 - $250,000

4 Pre-Litigation Preservation of Documents Spoliation Potential penalties Pfantz v. Kmart Corp., 85 P.3d 564 (Colo. App. 2003) (court would draw adverse inference after defendant destroyed key piece of evidence). Handling Electronically Stored Information Subject to subpoena in same manner as physical documents. C.R.C.P. 45(a)(1)(A)(III). Preserve in its original electronic format

5 Pre-Litigation Continued Witness identification Interview Statements Affidavits

6 Litigation Counsel Benefit of involving litigation counsel early Pre-loss insurance coverage Mitigation of future loss

7 Unique Government Concerns Colorado Open Records Act (C.R.S ) Colorado Criminal Justice Records Act (C.R.S ) Privileged vs. non-privileged information

8 Avoiding Litigation Pre-litigation resolution Settlement/severance Mediation Conciliation Arbitration Colorado Uniform Arbitration Act, C.R.S Federal Arbitration Act, 9 U.S.C. 1

9 Discovery Expensive but necessary Written interrogatories Pattern interrogatories Requests for production Requests for admission Independent medical examinations Depositions

10 Subpoena Duces Tecum Subpoena to compel production of relevant documents Records deposition Must comply with requests within subpoena Unless object in writing or file motion to quash

11 Written Discovery Time consuming Involvement of entire organization

12 Privileges Attorney/Client C.R.S (1)(b) Executive Session C.R.S (3) Deliberative Process Colorado Springs v. White, 967 P.2d 1042 (Colo. 1998) Vaughn Index

13 Privileges - Continued Work Product C.R.C.P. 26(b)(3) Spousal Privilege C.R.S (1)(a)(I-V) Doctor/Patient C.R.S (1)(d) HIPAA Patient privacy and disclosure Accountant/Client C.R.S (1)(f)(I-II)

14 Protecting Privilege Privilege Log Waiver Inadvertent Disclosure

15 Depositions Top Ten Misperceptions by Witnesses 1. A case can be won at deposition 2. I can shorten the deposition by telling the other party what I think they want to know 3. I m better off not preparing for a deposition 4. I can shorten the deposition by not knowing anything 5. I can always answer a hypothetical by requesting more facts

16 Top Ten Misperceptions - Continued 6. This is my chance to explain my side 7. I m smarter than the other side s attorney 8. I can discuss the case with anyone and it won t come up in deposition Tape Recordings Turncoat 9. My attorney can protect me in a deposition How attorneys in a deposition are the same as, and different from, a potted plant 10. I ll be wishy-washy to avoid cross-examination If you can t say it in a deposition, you can t say it at trial

17 Witnesses Good Witnesses are born, not made But can improve Preparation is key Methods

18 Discovery Sanctions Rule 11 Sanctions Rule 37 Sanctions Adverse ruling Expenses Dismissal

19 30(b)(6) Depositions Binding the entity Duty to investigate and educate Former employee as deponent

20 Opportunities in a 30(b)(6) Choose witnesses Preparation for case

21 Video Depositions Advantages Disadvantages

22 Deposition Tricks The Bluff The Stare The Impossible Question The Hypothetical Question

23 Individual Liability 42 U.S.C Qualified Immunity Title VII Colorado Governmental Immunity Act Willful and Wanton Conduct

24 Changes to Colo. Anti-Discrimination Act Most changes effective January 1, 2015 Adoption of Title VII/ADA/ADEA judicial interpretations Primarily affects employers with 1-14 employees Expands protected classes for all size employers Does limit the amount of damages that can be sought Action must proceed in state court Unless combined with a federal claim

25 CADA Changes - Continued Non-pecuniary damages allowed under the statute 1-4 employees: compensatory and punitive damages may not exceed $10, employees: compensatory and punitive damages may not exceed $25,000 Thereafter same as federal caps Front and backpay are not included in the caps

26 Title VII Caps 15 to 100 employees: $50, employees: $100, employees: $200,000 Caps do not include backpay

27 CADA Changes - Continued Age cap for ADEA claims removed Coverage for protected minorities remains the same Broader than Title VII Includes sexual orientation, transgender employees Able to recover attorney s fees No punitive damages against any state entity

28 Questions?

TEXAS DISCOVERY. Brock C. Akers CHAPTER 1 LAW REVISIONS TO TEXAS RULES OF CIVIL PROCEDURE GOVERNING DISCOVERY

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