2.15.11

2.15.11

This is what you will receive if you send your interrogatories too soon:

"Unknown at this time. Discovery and investigation are continuing and ongoing and nowhere near completion at this time. Consequently, this responding party reserves (his/her/its) right to update and supplement this response if and when additional information/evidence is obtained."

Judicial Notice- If one party objects to evidence, other party may ask court for Judicial Notice. As a practical matter, evidence which is likely to accepted will not be objected to.

MIDTERM- No Discovery questions, up through and including chapter 7.
- Evidence Rules

Interrogatories- Purpose is to think about your unique case and LEARN. Copying does not accomplish this goal. Clear, cogent, concise, open-ended, non-yes/no, information gathering questions.

News- Outrage at Italy's slander law. Same in U.S., republish defamation, even when attributed to original source, is slander.

Interrogatories-
- Instructions not necessary, but should be included if you intend to use as a writing sample.
- Purpose- who to depose, what documents to request, find out what is there to be obtained.
- Identify- people, documents, facts.
- Contention Interrogatories- INCLUDE 3-4 IN DISCOVERY PROJECT
• "Do you contend/deny....that the property of Gruel & Druel was negligently maintained?"
• Answer is always YES
• "If so, please identify
➢ a. All persons with knowledge of your contention/denial
➢ b. All facts which support or tend to support your contention/denial
➢ c. All documents which support or tend to support your contention/denial

• "For each affirmative defense in your answer please identify
➢ a....
➢ Great use of interrogatories, addresses multiple defenses with a single question.

p 281 Summary Paragraph- DO NOT USE/ANSWER (overbroad, vague, includes privileged info)

Overuse of N/A (not applicable). N/A does NOT mean no. It is an improper response.
1. Were you drinking? N/A- improper response, yes or no.
2. How fast were you driving? N/A- proper if person was not driving.

How to answer interrogatories
- 1. Engrossed- Incorporate question in answer.
- 2. Separate Sheet- Answer questions on a separate sheet.
- 3. Same Sheet- Answer questions in space left after question. (Even easier in electronic form)

- Answers must come from client and should be written in first person.
- Procedure-
A.Send to client the day that the rogs arrive.
B.Indicate in advance the questions that the client cannot answer (experts, legal theories, etc.)
C. Always allow client to write first draft of answers. (Include pre-paid return envelope)
D. Go over responses with client, clarify, rephrase. Client must be comfortable with answers.

Objections to Interrogatories
1. Privilege
2. Irrelevant
3. Overbroad/Vague/Unintelligible- narrow as to time and scope
4. Unduly Burdensome

Identification of document in which answer can be found is an acceptable answer.

Interrogatories & RTPs may be combined in same document or drafted separately.
Request to Admit may not be combined with any other discovery device.

CR 35-
When liability has been established.
-Parties only.
-Only when physical or mental condition is at issue in the case.
Used to determine
- If there is objective evidence of subjective claim
- If there were previous/subsequent injuries that were the cause of stated injuries
- Paternity, etc.
- Fraudulent/Exaggerated Claim
and prepare expert to testify as to nature and severity of injuries

Motion to Compel- Must be preceded by Meet & Confer CR 26i
If party refuses to cooperate- CR 37 Motion to Dismiss for failure to cooperate in discovery, claim does not state a cause of action

Arranging for the Examination of an Opposing Party
- CR 35 By Adverse/Third Party (at fault party)
- L&I/PIP- IME- Independent (insurance) Medical Exam - First Party
- Companies that provide- MCN, Haelen, OMAC
- No such thing as an impartial expert
Create detailed chart of all treatment, doctors, medications, etc. received.

Preparing the Client
- Clients will be apprehensive, but reassured by your presence. Never let them go alone.
- CR 35 allows you to attend and record (audio) the exam
- Not unlike deposition preparation
- Client should be prepared to discuss their history/condition/medication

During the Exam
- As in deposition, you will not win. Play not to lose.
1. You are heading into the Lion's Den. Expect to be observed from the moment you pull into the parking lot.
2. Everybody is a spy. No discussion of case at the office, at all.
3. Exams almost always involve tricks. "Hop up on the table." Accidentally drop things to see if you'll bend to pick them up. "Does that make your teeth itch?" Listen carefully to questions and be honest.
4. Don't be Sara Burnhart or John Wayne. No dramatizations, no tough-guy routine. Just be honest.

Medical Reports
- You have an absolute right to a copy of the report.

CR 34- Most Underutilized Discovery Technique
- Not just for documents!
- Any physical evidence can be produced with this device
- "There are 4 ways to get documents, one point for each you can name."
• SDT- Subpoena duces tecum, documents from non-party
• RTP- Request to Produce CR 34, docs from party
• CR 30b(5) docs from party at depo
• CR 33c business records as answer to interrogatory
EX Please ID all guests of the Chalet who rented snowmobiles from 1/1/09 to present. Answer- A. John, Bill, Ted, etc. Or B. The information called for by this rog is contained in the rental ledger of the Defendant. (Must produce ledgers).
CR 30b(5) may also be used to produce documents at deposition
- Drawback- can't review and ask follow up questions
CR 34 Glitch
- Does not require you to produce the documents in 30 days, requires you to respond to the request in 30 days. In document heavy cases it may be helpful to produce a list of documents that will be produced as a response.