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1 Table of Contents See also Summary of Contents starting on page xi. Chapter One: Understanding Discovery... 1 Discovery Overview Honorable Paul P. Panepinto... 3 I. Strategies for getting the right information... 5 II. The best timing and order of taking discovery... 5 III. How to effectively depose the difficult witness or party... 6 IV. Civility in the courtroom... 6 V. Navigating ediscovery... 7 VI. Discovery court Do s... 7 VII. Discovery court Don ts... 8 PowerPoint Presentation: Discovery and Civility for Young Lawyers Twanda Turner-Hawkins, Esquire... 9 Chapter Two: Preparing for Depositions Litigation Theory as it Applies to Depositions James R. Ronca, Esquire Definitions Bayes Theorem of Probability Real World Example 1: 2012 Election Real World Example 2: Poker. Texas Hold em From Theory to Practice: Deposition Strategy and Tactics Bias Preparation Example of Strategy Constructing Your Opponent s Case Tactics The Principle of Momentum xv

2 The Opening Move To Question or not to Question, that is the Question The Difficult Witness PowerPoint Presentation: Preparing For & Defending Depositions in Civil Matters from Defense Counsel s Perspective Veronica M. Nelson, Esquire I. Prepping a Witness A. Know the Case B. Quality Time & Tough Love with Your Witness(es) II. Defending a Deposition A. Know the Rules B. Taming of the Egos C. Defining the Win Top Ten Rules: Witness Preparation for Plaintiff s Adrianne W. Webb, Esquire Section Four: Coping with Deposition Disasters Adrianne W. Webb, Esquire Determine the goal of the deposition Prepare an outline Use the funnel technique Anticipate what your opponent wants Think ahead to jury selection Avoid Disaster Don t be afraid to leave an issue open Take a break Get Out of a Disaster Discredit bad testimony De-opinionize the witness Embrace the facts Section Five: Example General Witness Preparation Outline Veronica M. Nelson, Esquire I. Introduction II. Case Overview III. Purpose of Deposition In General IV. Witness s Background V. Case Specific Issues/Concerns Regarding Elements of Legal Claims xvi

3 VI. VII. Case Specific Issues/Concerns Regarding Documents, Electronically Stored Information and Social Media Case Specific Issues/Concerns Regarding Personal Knowledge of Witness That is Limited to This Witness or Essential to Case VIII. Witness s Testimony IX. General Do s and Don ts to Share with Witnesses Section Six: Sample Depositions and Deposition Outlines Adrianne W. Webb, Esquire Deposition of Corporate Designee Sales Representative Deposition Outline Treating Physician Deposition Outline Chapter Three: Written Discovery Written Discovery Strategies in Civil Litigation Bernard A. Williams, Esquire I. Introduction II. Discovery in Context of the Civil Action A. Pre-Filing Phase B. Pleadings Phase Complaint Motions to Dismiss and Preliminary Objections Answer C. Summary Judgment Motions D. Trial III. Overview of Discovery Themes and General Considerations A. What is Discovery? B. Attorney Work Product C. Attorney Client Privilege IV. Nuts and Bolts of Particular Discovery Methods A. Pre-Complaint Discovery Limited Pre-Complaint Discovery under the Pennsylvania Rules No Pre-Complaint Discovery under the Federal Rules B. Initial Discovery under the Federal Rules Rule 26(f) Conference The Discovery Plan Initial Disclosures under the Federal Rule C. Document Requests Propounding Document Requests Responding to Document Requests xvii

4 3. Producing Requested Documents Working with Documents Obtained During Discovery D. Special Considerations Concerning Electronic Discovery Types of E-Discovery Sources of E-Discovery Preservation of ESI Responding to Requests for ESI Format of ESI Production Strategic considerations for ESI discovery E. Interrogatories Propounding Interrogatories Responding to Interrogatories Supplementing Responses to Interrogatories F. Expert Witnesses Pre-Trial Disclosure of Expert Opinions and Reports Consulting Experts Work Product Protection Concerning Duty to Supplement Expert-Related Information G. Requests for Admission Propounding Requests for Admission Responding to Requests for Admission V. Conclusion A. Be Purposeful and Work Toward a Goal B. Be Cognizant of the Human Element Inherent in Every Civil Action Areas of Inquiry for Plaintiff s Request for Production of Documents Directed to Medical Provider Defendant in Medical Malpractice Case Adrianne W. Webb, Esquire Areas of Inquiry for Plaintiff s Request for Production of Documents Directed to Defendant in an Auto Accident Case Adrianne W. Webb, Esquire Section Four: Sample Interrogatories Directed to Defendant in a Medical Malpractice Case Adrianne W. Webb, Esquire Section Five: Sample Interrogatories Directed to Defendant in an Auto Accident Case Adrianne W. Webb, Esquire xviii

5 Chapter Four: ediscovery and Technology-Assisted Review The ESI/E-Discovery Cheat Sheets Veronica M. Nelson, Esquire The ESI/E-Discovery Cheat Sheet Cheat Sheet Hot Topics Significant Cases Submitted by: Adrianne W. Webb, Esquire and Christine Zaremski-Young, Esquire Technology Assisted Review: Driving ediscovery Efficiencies in the Era of Big Data Kroll Ontrack, Inc Introduction: Managing Big Data with Technology Assisted Review Key Components of TAR Training Analyzing Evaluating Metrics in TAR Classification Effectiveness Precision exactness Recall completeness F-measure Sampling TAR is Legally Defensible Da Silva Moore v. Publicis Groupe Kleen Products, LLC, et al. v. Packaging Corporation of America Global Aerospace, Inc. v. Landow Aviation, L.P In re Actos (Pioglitazone) Products Liability Litigation EORHB, Inc., et al. v. HOA Holdings, LLC In re Biomet No one-size-fits-all TAR Ontrack Inview and TAR Workflow Prioritization Categorization Conclusion Section Four: Kroll Ontrack Materials Kroll Ontrack, Inc xix

6 Technology Assisted Review Saves Clients Almost $200, Technology Assisted Review Helps Client End Review 2 Weeks Early Machine Learning in Ontrack Inview Speeds Document Review New Documents Mid-way through a Document Review.Now What? Technology Assisted Review Aids in Quality Control of 55,000 Production Documents Chapter Five: The Ethics of Discovery The Philadelphia Bar Association Professional Guidance Committee Opinion (March 2009) Submitted by: Riley H. Ross, III, Esquire McMillen v. Hummingbird Speedway Submitted by: Riley H. Ross, III, Esquire Selected Pennsylvania Rules of Professional Conduct Submitted by: Riley H. Ross, III, Esquire Rule 4.1 Truthfulness in Statements to Others Rule 5.3 Responsibilities Regarding Nonlawyer Assistants Rule 8.4 Misconduct Chapter Six: Discovery in Federal Court An Overview of Discovery in Federal Court Marla N. Presley, Esquire I. First Steps: Rule 26(1) and Rule 16 Conferences a. Discovery Moratorium b. Rule 26(f) Conference c. Federal Rules d. FRCP 16 Scheduling Conference e. Scheduling Order f. Modifying Dates/Limits II. Forms of Discovery in Federal Court a. Initial Disclosures 26(a)(1) b. Oral Depositions c. Depositions on Written Questions d. Interrogatories e. Requests for Admissions xx

7 f. Requests for Production g. Motion for Physical/Mental Examination h. Request for Entry on Land III. Discovery Issues in Federal Court a. Discovery Deadlines b. Scope of Discovery c. Supplementation d. Supplementation Sanctions e. Resisting Discovery f. Motion for Protective Order g. Expert Discovery 26(a)(2) h. Expert Discovery: Who Pays? i. Pretrial Disclosures 26(a)(3) j. Objections to Pretrial Disclosures IV. State & Federal Courts General Observations V. Pennsylvania State Court Discovery Variations a. Allegheny Court Rules b. Western District of Pennsylvania c. Judge-Specific Rules d. Conclusions Exhibits to An Overview of Discovery in Federal Court Submitted by: Marla N. Presley, Esquire Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Changes to the Federal Rules of Civil Procedure - Discovery Submitted by: Marla N. Presley, Esquire Section Four: Proposed Amendments to the Federal Rules American Association for Justice Section Five: Federal Court Discovery Issues Submitted by: Marla N. Presley, Esquire xxi

8 Ehling v. Monmouth-Ocean Hospital Service Corp November 16, 2010 Order Establishing a Panel of Special Masters for Electronic Discovery Virginia State Bar Disciplinary Board Opinion: In the Matter of Matthew B. Murray Link: NYCLA Ethics Opinion 745, July 2, Chapter Seven: Motions Submitted by: Royce W. Smith, Esquire and Adrianne W. Webb, Esquire Motion to Compel Mass Tort Motion to Compel Answers to Interrogatories Motion for Sanctions Appendix: Reference List Veronica M. Nelson, Esquire xxii

Table of Contents. See also Summary of Contents beginning on page vii.

Table of Contents. See also Summary of Contents beginning on page vii. Table of Contents See also Summary of Contents beginning on page vii. Chapter One General Discovery Duties and Obligations in Pennsylvania Courts... 1 Brian W. Waerig, Esq. I. The Scope of Discovery...