Tomorrow Night- Review for Final- Bring Questions
Tonight Guest Speaker- Greg Sheldon
E-Discovery Certification Instructor- 9months beginning in Fall
Federal E-Discovery
• Formal information gathering process
• Not the only way to gather useful info
Records Management
• Identify, control and retain records to protect business interests
• Reduce burden, cost, and risk of maintaining records
• Destroy documents that have no legitimate business interest
• There is nothing wrong with a policy of destroying documents after there is no good business reason to keep it.
Legal Hold
• Obtain confirmation of receipt/compliance
• Monitor and quality assure collection and preservation of relevant information, periodic reminders
U.S. v. Philip Morris USA, Inc.
• $2.5 million in fines for failure of 11 employees to follow litigation hold on email
• Employees in question not permitted to testify
Bright v. United Corp.
• Defendant had won case on summary judgment at trial
• defendant's employee preserved digital video footage of the incident, but deliberately chose not to preserve the footage immediately before and after incident.
• Appellate court ruled plaintiff was entitled to "adverse inference" instruction (assume damaging to defendant) and overturned the trial court
Civil Rules
• 16, 26-37, 45
➢ Pretrial conferences
➢ Duty to disclose
➢ Depositions- oral or written
➢ Interrogatories
➢ Production of documents
➢ Inspections
➢ Physical or Mental Examinations
➢ Request for admission
Overview of Amendments
• Effective Dec. 1, 2006
• "Lay down discovery"- as soon as you are notified of suit, you automatically turn over relevant documents.
• ESI included in mandatory initial disclosure
• Counsel required to discuss ESI at initial pre-trial conference
• Encourage early cooperation of counsel
• Empower courts to incorporate agreements into CMOs (Case Management Order)
• Limited protection from production for ESI that is not reasonably accessible
• Address inadvertent production
• Protection from sanctions for deletion/loss in regular course of business
• Safe-harbor from sanctions
New Terminology
• Electronically Stored Information ESI
• Not defined in the new rules
• Meant to be "flexible enough to encompass future changes and developments"
• Update boilerplate document requests and interrogatories
Rule 1. Scope and Purpose
• These rules govern the procedure in all civil actions in the US District Courts.
• "They should be construed and administered to secure the jus, speedy, and inexpensive determination of every action and proceeding."
Early Attention to e-discovery
• Rules 16, 26(a), and 26(f)
• Mandates pre-trial conference in Federal Court
• Scheduling order provides timeline
• Rule 29 allows modification to discovery deadlines
• Rule 26(a)- requires parties to disclose "a copy of or a description ... of ESI"
➢ Required disclosure
• Names and contract info of witnesses
• Rule 26(f)- preservation of evidence, form of production
➢ Conference- know what your client has, and how it's being stored, etc.
Coleman v. Morgan Stanley
• $1.5 billion verdict
➢ Suit over Sunbeam meltdown
➢ Partial default judgment
➢ $15 million fine to SEC for violating e-mail retention laws
➢ Mistakes happen, but if not revealed can be extremely damaging
RTP CR 34
• Testing and Sampling
➢ "test or sample any designated documents or ESI"
• Not effective
➢ Disruptive
➢ Encroaches on protections
➢ Not meant to create a routine right of direct access to opposing parties ESI
Form of Production
• Producing party can object to format
• "in a form in which it is ordinarily maintained or in a form that is reasonably usable"
• Avoid producing in "native" format
➢ Subject to manipulation
➢ Cannot be redacted or bates stamped
➢ Need same software to view
Two-Tiered Production
• 26(b)(2)(B) allows a party to withhold information it identifies as "not reasonably accessible because of undue burden or cost"
Aubuchon v. BeneFirst
• Medical bills were "not reasonably accessible"
• BeneFirst must produce the requested information and bear the cost of production
• No reward for sloppy filing
Capitol Records v. MP3Tunes
• Unable to conduct centralized email searches of groups of users without downloading them to a separate file and relying on the service of an outside vendor
Cost Shifting
• Cost may be shifted to requesting party if information is on source that is not reasonably accessible
• Requesting party: share or bear costs
• Responding party: costs related to review
Privilege and Work Product Issues
• 26(b)(5)(B) added to formalize procedure regarding inadvertent production
➢ If disclosed, must take reasonable steps to retrieve
➢ Receiving party "must promptly return, sequester or destroy"
• ER 502
➢ Inadvertent production not a waiver
Thursday, March 10, 2011
Wednesday, March 9, 2011
3.8.11
Handout #19 Sample Jury Instructions
Discovery Project returned Thursday
Remaining Classes
3.8- Trial
3.9- Electronic Discovery
3.10- Review
3.15- Appellate
One free class- move final to 3.16?
Trial Continued
Asking questions you don't know the answer to at trial is walking a minefield.
Preparation for depositions will help reduce new information from surfacing at trial.
Knowing when to quit- more is not necessarily better.
Subtle is best, don't alienate the jury.
Direct- unlimited
Cross- unlimited
Re-direct & Re-cross- limited by the questions that preceded
(may request question outside scope)
Most difficult part of defense is sitting through plaintiff's case.
Rebuttal Evidence- Evidence, witnesses, or testimony solely for the purpose of rebutting
Closing argument- all about preparation. Don't re-hash the evidence. Tie it all together, but in a new way. Think about the closing every day after trial- quotes, exhibits, "gems", and assemble closing around them.
WPI- Washington Pattern Instructions
Jury Instructions- Basic
Custom jury instructions frequently needed
Top 10 Jury Mistakes (Appeal-able)
1. Juror who conceals facts of prejudices or lies in voir dire (particularly facts that could lead to objection for cause)
2. Consulting any unauthorized evidence; jury must make decision solely on evidence submitted in trial.
3. Conducting experiments- facts are different, cannot replicate with certainty.
4. Private studying of the evidence. (ie. taking evidence home, etc.)
5. Private viewing of the scene without court approval.
6. Outside reviews or consultations.
7. Arguing facts or experience not in evidence.
8. Private consultation with attorneys or parties in the case. (EX "good morning", no speaking)
9. Chance and quotient verdicts.
Chance verdict- Based on an event that may or may not happen, not discussion. (EX flipping a coin, etc.)
Quotient verdict- Everyone votes and value is averaged. Must come to agreement about number, otherwise 12 separate verdicts.
10. Early judging of the evidence. (announcing conclusion before discussion has commenced)
Allowed:
- You are allowed to use your previous experience and knowledge.
- Additional review of the deposition, testimony, or trial record.
- Asking court questions
- Taking notes- Judges are split on allowing this, some do and some don't. Juror notes are destroyed after trial.
Jury Deliberations
Only Admitted Evidence
-Demonstrative exhibits do not go with jury
-Pleadings do not go with jury
Jury #s- top to bottom, left to right. Starting in upper left corner
1 2 3 4 5 6
7 8 9 10 11 12
Defense must convince 10/12
Plaintiff must convince 3/12
Mistrial-
Curative instructions- Judge instructs jury to disregard
Motion for reconsideration CR 59- gives Judge the opportunity to correct prejudicial errors of law.
The Paralegal's Part at Trial
- Making sure that the people you need are there. Subpoenas, etc.
- Keeping track of exhibits
- Be careful about mannerisms. Be professional, calm, confident.
- Taking notes during trial- Always breakdown by day and time
-- Key quotes for closing (write down word for word)
-- Every time Judge rules it is a potential appeal
Appeals
- Mostly specialty work
- Rules of Appellate Procedure- RAP
- Appellant and Appellee
- Appeals are expensive, time consuming and almost always unsuccessful. Chance of prevailing at appeal is less than 5 to 1.
- Appeals used for negotiation
Cross Appeal
Plaintiff wins $100k, wanted $200k
Defendant appeals, how long do we have to cross appeal? State RAP 5.2(f)(1)
Federal FRAP 4(a)(3)
Appellant/Appellee and vice versa
Discovery Project returned Thursday
Remaining Classes
3.8- Trial
3.9- Electronic Discovery
3.10- Review
3.15- Appellate
One free class- move final to 3.16?
Trial Continued
Asking questions you don't know the answer to at trial is walking a minefield.
Preparation for depositions will help reduce new information from surfacing at trial.
Knowing when to quit- more is not necessarily better.
Subtle is best, don't alienate the jury.
Direct- unlimited
Cross- unlimited
Re-direct & Re-cross- limited by the questions that preceded
(may request question outside scope)
Most difficult part of defense is sitting through plaintiff's case.
Rebuttal Evidence- Evidence, witnesses, or testimony solely for the purpose of rebutting
Closing argument- all about preparation. Don't re-hash the evidence. Tie it all together, but in a new way. Think about the closing every day after trial- quotes, exhibits, "gems", and assemble closing around them.
WPI- Washington Pattern Instructions
Jury Instructions- Basic
Custom jury instructions frequently needed
Top 10 Jury Mistakes (Appeal-able)
1. Juror who conceals facts of prejudices or lies in voir dire (particularly facts that could lead to objection for cause)
2. Consulting any unauthorized evidence; jury must make decision solely on evidence submitted in trial.
3. Conducting experiments- facts are different, cannot replicate with certainty.
4. Private studying of the evidence. (ie. taking evidence home, etc.)
5. Private viewing of the scene without court approval.
6. Outside reviews or consultations.
7. Arguing facts or experience not in evidence.
8. Private consultation with attorneys or parties in the case. (EX "good morning", no speaking)
9. Chance and quotient verdicts.
Chance verdict- Based on an event that may or may not happen, not discussion. (EX flipping a coin, etc.)
Quotient verdict- Everyone votes and value is averaged. Must come to agreement about number, otherwise 12 separate verdicts.
10. Early judging of the evidence. (announcing conclusion before discussion has commenced)
Allowed:
- You are allowed to use your previous experience and knowledge.
- Additional review of the deposition, testimony, or trial record.
- Asking court questions
- Taking notes- Judges are split on allowing this, some do and some don't. Juror notes are destroyed after trial.
Jury Deliberations
Only Admitted Evidence
-Demonstrative exhibits do not go with jury
-Pleadings do not go with jury
Jury #s- top to bottom, left to right. Starting in upper left corner
1 2 3 4 5 6
7 8 9 10 11 12
Defense must convince 10/12
Plaintiff must convince 3/12
Mistrial-
Curative instructions- Judge instructs jury to disregard
Motion for reconsideration CR 59- gives Judge the opportunity to correct prejudicial errors of law.
The Paralegal's Part at Trial
- Making sure that the people you need are there. Subpoenas, etc.
- Keeping track of exhibits
- Be careful about mannerisms. Be professional, calm, confident.
- Taking notes during trial- Always breakdown by day and time
-- Key quotes for closing (write down word for word)
-- Every time Judge rules it is a potential appeal
Appeals
- Mostly specialty work
- Rules of Appellate Procedure- RAP
- Appellant and Appellee
- Appeals are expensive, time consuming and almost always unsuccessful. Chance of prevailing at appeal is less than 5 to 1.
- Appeals used for negotiation
Cross Appeal
Plaintiff wins $100k, wanted $200k
Defendant appeals, how long do we have to cross appeal? State RAP 5.2(f)(1)
Federal FRAP 4(a)(3)
Appellant/Appellee and vice versa
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