Overview n Discovery-Related Considerations n Scope of Discovery n Typical Types of Fact Discovery n Expert Discovery 1
Discovery-Related Considerations n Preservation obligations n Local rules n Scope of discovery n Supplementation obligations n Costs 2
Initiating & Supplementing Discovery (FRCP 26(d) & (e)) n Rule 26(f) conference involves discussion of various issues, including discovery. n Discovery starts after Rule 26(f) conference: o New exception Document requests permitted before Rule 26(f) conference n Rule 26(e) ongoing duty to supplement or correct discovery responses: o Can be sanctioned for failure to supplement 3
Failure to Preserve (FRCP 37(e)) n Changed as of December 1, 2015 n Party that fails to take reasonable steps to preserve relevant data/ documents: o Must restore or replace the data/documents o If data/document cannot be restored and another party is prejudiced, court may order measures to cure the prejudice o If data/document cannot be restored and court finds that the party acted with the intent to deprive use in the litigation, court may: Presume that the lost information was unfavorable to the party Instruct the jury that it may, or must, presume that the information was unfavorable or Dismiss the action or enter a default judgment. 4
New Scope of Discovery n Federal rules changed as of December 1, 2015 n One potentially significant change to the scope of discovery n Rule 26(b)(1) previously allowed discovery so long as it: o Was relevant o [A]ppear[ed] reasonably calculated to lead to the discovery of admissible evidence n Now discovery is permitted so long as what is sought is: o [R]elevant... and o [P]roportional to the needs of the case n Revision emphasizes proportionality of discovery burden to discovery benefit: o Revisions of other rules now contain references to 26(b)(1). 5
New Scope of Discovery (continued) n Revision lists the factors to be considered in evaluating proportionality: o Importance of issues at stake o Amount in controversy o Parties relative access to relevant information o Parties resources o Importance of the discovery in resolving the issues o Whether burden of proposed discovery outweighs its likely benefit. 6
Typical Types of Fact Discovery n Depositions (Rule 30) n Interrogatories (Rule 33) n Requests for Documents (Rule 34) n Requests for Admission (Rule 36) n Third-Party Subpoenas (Rule 45) 7
Depositions (FRCP 30) n Number of depositions limited to 10 per side: o Parties can consent to additional depositions. o Additional depositions are also permitted with leave. n Depositions are limited to one 7-hour day. n Depositions are typically taken in person. n Upon stipulation or court order, a deposition may be taken by phone or other remote means. 8
Depositions (FRCP 30) (continued) n During deposition: o The deponent may be instructed not to answer: To preserve privilege To enforce court-ordered limitation or When bringing motion to limit or terminate the deposition. o Motion to limit or terminate can be sought when: Deposition appears to be being taken in bad faith Unreasonably annoys, embarrasses or oppresses the deponent or party Such motion can be made in court where action is pending or where deposition occurs. n On request before deposition is over, deponent can request 30 days to review and correct the transcript. 9
Corporate Depositions (FRCP 30(B)(6)) n Rule 30(b)(6) subpoena: o Notice must describe with reasonable particularity the matters for examination o No limit on number of topics. n Company designates who will testify on noticed topics: o Can choose one or multiple individuals o Is responsible for preparing witnesses. 10
Interrogatories (FRCP 33) n Permits 25 interrogatories, including subparts: o Parties can consent to additional interrogatories. o Additional interrogatories are also permitted with leave (subject to new proportionality rule). o Contention interrogatories are permitted. n Responses are due within 30 days of service, unless otherwise agreed between the parties: o May reference document production rather than specifically answering. 11
Document Production (FRCP 34) n Technically, there is no limit on the number of requests but 2015 revisions add a proportionality requirement. n Responses are due 30 days after document requests are served: o 2015 revisions allow a party to produce copies of documents electronically, rather than permit inspection. o Objections should state whether any materials are being withheld on the basis of objection. n Documents should be produced as kept in normal course or must be organized and labeled to correspond to categories in the request. 12
Document Production (FRCP 34) n The 2015 revision to FRCP 26(d)(2) provides for Early Rule 34 Requests : o Can be served 21 days after service of complaint o Considered served at Rule 26(f) conference: Responses due 30 days after 26(f) conference o Early document requests designed to: Facilitate discussion during Rule 26(f) conference Help ensure that preservation matches actual requests 13
Requests for Admission (Rule 36) n May request admission (or denial) of: o Facts, application of law to fact or opinions about either o Genuineness of any described documents n Responses due within 30 days: o The failure to respond is deemed an admission. o Denials should respond to the substance of the request. n The court can permit admission to be withdrawn or amended. 14
Expert Testimony (FRCP 26(a)(2) & (b)(4)) n The date of disclosure of the expert is usually set by court o If not, must accompany expert report or o If no expert report, provided 90 days prior to trial or o If a rebuttal expert, provided 30 days after receiving opposing counsel s expert report. n Expert report should include: o Statement of opinions (and basis for them) o Facts or data considered by the witness in forming opinions o Any exhibits that will be used to summarize or support them o Witness s qualifications, including list of publications in last 10 years o List of cases in past four years where witness testified as expert o Statement of the compensation to be paid to expert. n Draft reports are protected by the work-product doctrine. 15
QUESTIONS 16
Sam Ramer sramer@symplicity.com Anthony T. Pierce 703.351.0200 Sam Romero is general counsel and VP of Government Relations for Symplicity Corporation, a software company. At Symplicity, Sam oversees all of the company s legal, government affairs, and compliance functions, including privacy issues. Prior to joining Symplicity, he was senior counsel for the House Judiciary Committee, Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. In that capacity he advised and helped craft legislation for the Chairman and Judiciary Committee members on matters related to cybersecurity, privacy issues, crime, law enforcement, and constitutional law. He has also served as counsel for the Senate Judiciary Committee. Before working on the Hill, Sam was an assistant U.S. attorney for the U.S. Attorney's Office for the District of Columbia. He began his legal career as an assistant district attorney in Manhattan and the Bronx. 17
Corey W. Roush croush@akingump.com Anthony T. Pierce 202.887.4115 Corey Roush has over twenty years of experience representing clients in federal antitrust, consumer protection, intellectual property and qui tam litigation cases in district and appellate courts around the country. In addition, he has represented clients before the Federal Trade Commission (FTC), the Antitrust Division of the U.S. Department of Justice and various attorneys general around the country. He also has experience in a wide range of issues related to mergers, acquisitions and joint ventures and has litigated against the FTC and the Department of Justice. Additionally, Corey regularly conducts internal investigations for companies arising out of whistle-blower allegations, qui tam lawsuits and other allegations of misconduct. He also has extensive experience responding to administrative subpoenas, civil investigative demands and other government requests for information. 18
Paul H. Teague pteague@washgas.com Anthony T. Pierce 202.624.6576 Paul Teague is program director, Litigation Management & Operations for Washington Gas Light Company. He manages the day-to-day operations of the litigation group, including selection and oversight of outside counsel, as well as budget and reporting obligations. Paul provides strategic direction concerning policies and processes in the Office of the General Counsel. Previously, Paul litigated numerous personal injury and property damage matters arising from utility operations. The views expressed today are his personal opinions. 19