Discovery- did not exist in modern form until 1930's
- Your case is only as good as your discovery
- Criminal, everything inculpatory and exculpatory must be disclosed
- Civil, not so
- Playing 20 Questions will improve your discovery skills
- Based on Questions- should be able to determine your theory
CR 26
Discovery is the process of learning about the case
Interrogatories, Depositions, CR 35 Exams.
Three Purposes
1. To preserve testimony
- How? All are under oath, and penalty of perjury, cannot be changed.
2. Eliminate undisputed facts/issues
- In every case there will be some agreement. Narrows the area of dispute.
3. Ascertain facts and information ("learn stuff")
- Find out how strong the respective cases are, what theories the other side has, other parties that may be added, etc.
CR 401- Relevancy- evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
-You can ask about anything!
-Cast with broad net, be creative.
"Fishing Expedition" - Not allowed
- Unreasonably cumulative/duplication
- Obtainable from a more convenient, less expensive source
- Unduly burdensome/expensive
Admissibility vs. Discoverability
Can you ask questions that are not a matter of law, but solely for purpose of impeachment?
EX Have you claimed bankruptcy, had substance abuse problem, etc.
Yes. But- it is not necessarily admissible.
Business Documentation
Ordinary course of business vs. Anticipation of litigation
EX Incident report after a fall in a store. May or not be discoverable depending on which category it falls under:
Anticipation of litigation = Work product- privileged, undiscoverable. May be invaded- Must show "Substantial Need". EX Evidence destroyed by testing, scene that has been destroyed. Not doing your own work does not constitute substantial need.
Ordinary course of business = Discoverable, EX always prepare incident report no matter what.
Be PRO-active. The best defense is a good offense.
Experts
Work Product until they're not work product.
Once you designate as to who will testify, they are discoverable
Interrogatories- Have you retained an experts? If so please.... Waste of a question, won't tell you until they have to.
County will tell you deadline for designating experts.
Wait for designation, and then take deposition.
Experts used for preparation of case are considered work product, and are privileged unless you can show substantial need. EX They are the only expert.
Protective Orders CR 26c
When discovery is abused, questions design for:
1. Annoyance
2. Embarrassment
3. Oppression
4. Un-due Burden/Expense
EX Personal, embarrassing questions. "Paper you to death"
Judge has substantial power- can deny discovery, limit breadth, limit number of people deposed, limit discovery to one method, gag orders (discovery designed to illicit trade secrets, etc., prevents info from becoming public), in camera review (court review in private to determine relevancy).
CR 26e
Do you have to supplement your interrogatories if you acquire new information?
In WA- No. With many exceptions. Experts, Person Most Knowledgeable, etc.
As a practical matter you DO need to supplement.
CR 26i
Meet and Confer
Court will not hear any motions or objections to discovery unless counsels have conferred. Judges do not like to get involved with this. Do your best to resolve it on your own.
CR 27
Perpetuation Deposition
For people who will not be available at trial. Used in place of testimony.
CR 30
Depositions- Only non-party device for discovery
From time you file complaint, cannot take deposition for 30 days, unless defendant has already started discovery. (To give defendant adequate time to retain counsel to protect their interest.)
Parties- Do not need to subpoena a party, need only give notice of deposition. Professional Courtesy- call to set date with other side.
Everybody Else- you ALWAYS subpoena. (Witnesses, even relatives, etc.)
- How to soften blow. Call them, let them know that "a subpoena is a necessary formality, subpoena will help you justify to your employer that you must attend, can change the date if you need to. Thank you so much, we'll see you then."
- Non-Party, Must be served in County of Residence.
- Party, may be served in county where case is filed.
- Non-Washington Domiciliary, must be deposed in county of residence.
CR 30b(6) Subpoena for Unknown People
"Subpoena for Person Most Knowledgeable" literally. Other side must provide name.
Depositions
Typed and signed by deposed party, may make changes, but these changes may be noted by other party.
CR 30h
May not confer with attorney during deposition unless discussing a privilege. (But you may need to go to the bathroom, and your attorney may need to go to the bathroom too).
CR 31
Allows you to write out questions, other side types their questions, questions are then read to deponent.
Drawback - Can't see reaction, time to compose answer, etc., basically become interrogatories. Why would you do this? It's CHEAP. No travel, attorney time, etc. But if they're worth deposing, they're worth deposing in person.
Interrogatories CR 33
General Form- Write Question- Leave space to leave answer
But in Discovery Project- DO NOT leave space.
You can read the other sides interrogatory response into record, but not your own. Why? Attorney helped right them, and they are incredibly self-serving. Contain hearsay.
CR 34 Request to Produce - RTP's
Documents and THINGS!
Broad and encompassing, highly underutilized. EX guns, machinery, anything relevant. Can enter property for examination of scene, etc.
*Discovery Project- use for something other than documents. Be aggressive and proactive.
CR 35
Physical and Mental Examination
Both parties now entitled to copy of examination.
CR 36
Request to Admit
Technically not a discovery, in order to get admission, you must already have documents.
Advantage- No need to authenticate. Saves time. Key facts only here.
EX admit that you were drunk, admit that you have never driven a snowmobile, etc.
The more you can get the other side to admit, the less you have to prove.
Even if not enough for summary judgment, it will significantly simplify your case.
Admission in Error- Can ask court to allow a retraction (CR 60). But good luck.
WA- Deemed Admitted State- If you don't answer, deemed admitted. DO NOT fail to timely respond.
CR 37
Discovery Sanctions
Wa. State Physicians Inc Exchange v. Fisons Corp (1993)
122 Wa. 2d 299/ 858 p.2d 1054
Changed law on "hide the ball discovery"
Prior law- "intentional withholding of documents or information" = violation of discovery
Subsequent law
+ "Fair and reasoned resistance to discovery is not sanctionable"
- "misleading, concealing, or evasive responses" are not permitted
You must be careful when resisting discovery.
Makanvand v. Allstate Insurance
Summary Judgment entered by Judge due to non-cooperation in discovery.
