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SCOPE OF DISCOVERY

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SCOPE OF DISCOVERY Powered By Docstoc
					Advanced Civil Litigation

       Joanne Hames
        Winter 2012


         (c) Joanne Hames   1
              Introduction
• California Supplement

• The Doyle Case

• Class Website:
  – www.deanza.edu/faculty/hames


                   (c) Joanne Hames   2
     Pre-discovery Procedures
• Preliminary investigation by each side
• Pleadings filed and served
  – Summons & Complaint
  – Answer (or Demurrer or Motions)
  – Cross Complaints and Answers
• Case management or other conferences
• Possible ADR
                   (c) Joanne Hames        3
               Paralegal Role
• Preparing for discovery/disclosure
• Drafting discovery requests
• Responding to discovery requests
   – Client interviews
   – Document reviews (relevancy & privilege)
• Reviewing/summarizing discovery responses
• Drafting and responding to motions
• Integrating discovery into case management
  software
                       (c) Joanne Hames         4
     Preliminary Investigation
• Client Interview

• Locating and interviewing fact witnesses

• Locating and interviewing expert witnesses
  for your client
• Investigating all expert witnesses
                     (c) Joanne Hames          5
         The Client Interview
• Be Prepared
  – Find out as much about case as possible before
  – develop interview form or checklist
• Determine Location
• Gather forms for client signature
  – Retainer Agreement
  – Releases


                    (c) Joanne Hames                 6
        Client Interview, cont
• Run conflict check prior to interview
• Paralegal Role
  – Note taking
  – Written memorandum




                   (c) Joanne Hames       7
    Locating Fact Witnesses/Defs
• Client                            • Ambulance co.
• Internet
    – Social Networks               • Advertisements
•   Commercial Internet Sites
•   accident reports                • If a corp: Secretary of
•   court records                   State
•   DMV
•   Friends/neighbors               • The Internet
•   telephone book
•   county assessor/recorder

                          (c) Joanne Hames                      8
    WEB SITES FOR LOCATING
    PEOPLE AND BUSINESSES
•   Telephone and Address Directories
     –   http://www.infobel.com
     –   http://www.four11.com
     –   http://www.anywho.com
     –   http://www.switchboard.com
•   National Listing of Real Estate Assessors
     – http://indorgs.virginia.edu/portico/assessors.html
•   Company Information
     – http://www.hoovers.com
     – http://www.sec.gov/edgar.shtml
•   Social Networks
     – http://www.facebook.com/
     – http://twitter.com/
•   General Information
     – http://www.google.com


                                      (c) Joanne Hames      9
          After the Interview
• Prepare statement for witness signature

• Prepare memo summarizing findings and
  observations.




                   (c) Joanne Hames         10
        Interview Techniques
• Always Identify yourself and who you
  represent
• Prepare ahead of time: have form or
  checklist
• Avoid leading questions
• Take copious notes or with permission,
  record

                  (c) Joanne Hames         11
                  Evidence
• Importance to investigation, discovery and
  litigation
  – Different rules apply
• Litigation: Must follow all rules of
  admissibility and be relevant
• Discovery: Must be relevant and not
  privileged
• Investigation: Anything goes
                     (c) Joanne Hames          12
                  Evidence
• How you prove your point
  –   witnesses
  –   records
  –   documents
  –   exhibits
  –   objects
  –   photos

                   (c) Joanne Hames   13
                 Evidence
• Direct: evidence the witness personally
  observed; if believed it proves your point

• circumstantial: evidence from which an
  inference can be drawn



                   (c) Joanne Hames            14
 FORMS OF EVIDENCE

   ●Testimony        Statements from witnesses made
                         under penalty of perjury
 ●Documentary          Documents such as medical or
                      employment records; e-mails or
                          other correspondence
 ●Demonstrative      Any physical items related to the
                        case or evidence created
   ●Evidence          for trial such as photographs or
                                   models
 ●Presumptions           Inferences allowed by law
 ●Judicial Notice    Allows the court to accept the
                     truth of certain facts because the
                     facts are common knowledge or
                     are found in irrefutable sources
●Electronically       Information created or stored in
Stored                  electronic format, including
Information           computer generated documents,
                       email, web pages and the like.




                  (c) Joanne Hames                        15
          Rules of Evidence
• Federal: In Federal Rules of Evidence

• State: California Evidence Code

• Very similar



                  (c) Joanne Hames        16
                  Relevance
• All evidence must be relevant
  – tends to prove the point you are using it for


• Not all relevant evidence admissible
     • privileges
     • probative value outweighed by prejudice of time




                      (c) Joanne Hames                   17
       Documentary Evidence
• Authentication/foundation
  – document is what it purports to be (photos,
    writings, etc.)
• Self-Authentication:
     • certified copies of public documents/judicial notice
• Best Evidence rule


                       (c) Joanne Hames                       18
                         Hearsay
• Generally discoverable
• Inadmissible at trial unless it comes under one of
  the many exceptions.
• Out of court statement used to prove the truth of
  the matter asserted.
• Exceptions:
   – State of mind                     -declaration against
   – excited utterance                 interest
   – business records                  impeachment
                          (c) Joanne Hames                    19
                  Privileges
•   Attorney/client
•   doctor/patient
•   clergyman/pentitent
•   trade secrets
•   government secrets
•   Constitutional privileges
•   Work Product
                     (c) Joanne Hames   20
             Expert Witnesses
• Purpose: Can give an opinion in their area
  of expertise
• Paralegal Role:
  –   Locating Experts
  –   Interviewing
  –   Researching credentials
  –   Researching prior litigation

                       (c) Joanne Hames        21
        Preserving Evidence
• Integrity of evidence must be preserved

• Evidence log

• Preserving potential ESI



                   (c) Joanne Hames         22
SCOPE OF DISCOVERY-Relationship
       to Rules of Evidence


• ALL RELEVANT INFORMATION
     Admissible evidence or evidence that
  might lead to admissible evidence
• NOT OTHERWISE PRIVILEGED


                  (c) Joanne Hames          23
      Disclosure v. Discovery
• Disclosure
  – Federal Court Only (Rule 26)
  – Automatic exchanges of information
• Discovery
  – Both state and federal courts
  – Not automatic—requires a request


                   (c) Joanne Hames      24
  DISCOVERY IN GENERAL
• PROPOUNDING             • DOCUMENTS NOT
  PARTY--                   FILED WITH
  REQUESTING                COURT
  PARTY
                          • PROPOUNDING
• RESPONDING                PARTY KEEPS
  PARTY                     ORIGINALS


                (c) Joanne Hames            25
 Forms of Discoverable Information
• Testimony of Parties
   – In writing
   – Personal questioning (depositions)
• Testimony of Witnesses
   – Personal questioning
• Documents
   – Evidence Code Definition
• ESI
   – Electronically stored information

                        (c) Joanne Hames   26
                     E-Discovery
• New aspect of traditional discovery
   – Electronic documents
   – Hardware used to create electronic docs

• New Federal Rules of Civil Procedure (2006)

• New State Codes—California Electronic
  Discovery Act (2009)
   – http://www.nixonpeabody.com/publications_detail3.asp?ID=2815


                             (c) Joanne Hames                       27
        Scope of Cyber Evidence
              Digital vs. Non-Digital

                                              Digital
                                              Non-Digital




•Over 93 percent of all information generated in 1999 was in
digital format.
(In Re Bristol-Myers Squibb Securities Litigation 205 F.R.D.
437, 440, fn2 (2002) [citing UC Berkeley Study])
                          (c) Joanne Hames                  28
  What is potential digital evidence?

           User-Created Files
Address   Books
 Email files
 Audio/Video files
 Image/graphics files
 Calendars
 Internet bookmarks/favorites
 Database files
 Spreadsheet files
                   text files
 Documents and (c) Joanne Hames        29
 What is potential digital evidence?
         User-Protected Files
Compressed Files
 Misnamed files
 Encrypted Files
 Password-Protected
Files
 Hidden Files
 Steganography
                    (c) Joanne Hames   30
   What is potential digital evidence?
                   Computer Created Files
Backup    files
Log   files
Configuration      files
Printer   spool files
Cookies

Swap    files
Hidden    files
System    files
History   files
Temporary       files
                            (c) Joanne Hames   31
Where do I look for it?




           (c) Joanne Hames   32
Where do I look for it?




          (c) Joanne Hames   33
               Where do I look for it?
                         Hardware
 Stand alone computers vs. Local Area Networks
    Wired vs. Wireless

 Printers




 PDAs; i.e.. Palm, Handspring, CIE
 Digital Cameras
 Scanners

                          (c) Joanne Hames        34
                    Where do I look for it?
                         Storage
Hard Drives
    SCSI and EIDE
    USB and FireWire


   Floppy Disks
LS120s


Iomega media, i.e.. Zip, Jaz,
Peerless
Memory Sticks

                            (c) Joanne Hames   35
           Where do I look for it?
            Storage (cont’d)
CDs



   DVDs


   Backup Tape



                    (c) Joanne Hames   36
             Data Storage
              Hard Drives
Data is stored on the surface of a platter in
sectors and tracks. Tracks are concentric
circles, and sectors are pie-shaped wedges on
a track, like this:




                   (c) Joanne Hames      37
                               Data Storage
                                Floppy Disks
The computer program passes an instruction to the computer hardware to write
a data file on a floppy disk, which is very similar to a single platter in a hard disk
drive except that it is spinning much slower, with far less capacity and slower
access time.




                                     (c) Joanne Hames                         38
           E-Discovery Issues
•   Does it exist
•   Is it discoverable
•   Who pays for the discovery
•   Is it admissible at trial




                    (c) Joanne Hames   39
        Is ESI discoverable?
• Rule 26 expressly includes ESI as being
  subject to disclosure and discovery

• Relevant—or leads to admissible evidence




                  (c) Joanne Hames           40
                    Cost
• Often a contentious issue

• Court ultimately can decide

• Zubalake cases



                   (c) Joanne Hames   41
      Discoverable Information:
        Admissibility at trial
• Discoverable does not equal admissible

• Requires foundation
  – Authentication
  – Best evidence rule
  – reliable


                    (c) Joanne Hames       42
   MUTUAL DISCLOSURE
        RULE 26

• INITIAL DISCLOSURES

• DISCLOSURE OF EXPERTS

• PRETRIAL DISCLOSURES

              (c) Joanne Hames   43
  PRETRIAL DISCLOSURES
• NAME, ADDRESS, PHONE OF EACH
  WITNESS AND WHETHER THEY WILL
  BE CALLED
• WITNESSES THROUGH DEPOS AND
  COPY OF TRANSCRIPT
• IDENTIFICATION OF EACH
  DOCUMENT OR OTHER EXHIBIT TO
  BE OFFERED
             (c) Joanne Hames   44
  INITIAL DISCLOSURES
• NAME, ADDRESS, PHONE OF
  ANYONE LIKELY TO HAVE
  RELEVANT AND DISCOVERABLE
  INFO.
• COPY OR DESCRIPTION OF ALL
  DOCUMENTS OR OTHER TANGIBLE
  THINGS IN PARTY’S CONTROL

            (c) Joanne Hames    45
   INITIAL DISCLOSURES
          (CONT.)
• COMPUTATION OF DAMAGES
  CLAIMED

• COPIES OF INSURANCE
  AGREEMENTS



             (c) Joanne Hames   46
     EXPERT DISCLOSURE
• STATEMENTS OF OPINIONS
• BASIS FOR OPINION
• DATA RELIED UPON FOR OPINION
• EXHIBITS TO BE USED AS SUMMARY
• QUALIFICATIONS: PUBLICATIONS
  WITHIN LAST 10 YEARS
• COMPENSATION
• OTHER CASES (c) Joanne Hames FOUR YEARS 47
               WITHIN
      Rule 26 and E-discovery
• Now uses term: "electronically stored
  information” (ESI)
• Provision deals with excuse because of
  undue burden in accessing information
• Provision regarding maintaining
  confidentiality


                  (c) Joanne Hames         48
E-Discovery




   (c) Joanne Hames   49
  FORM OF DISCLOSURES
• WRITING
• SIGNED BY ONE ATTORNEY OF
  RECORD
• SERVED
• FILED WITH COURT
• SIGNATURE CONSTITUTES
  VERIFICATION
             (c) Joanne Hames   50
     DISCOVERY METHODS
•   Depositions
•   Interrogatories
•   Request for Production or Inspection
•   Request for Physical or Mental Exam
•   Request for Admissions
•   Disclosure of Experts

                    (c) Joanne Hames       51
            PRIVILEGES
• ATTORNEY/CLIENT • SELF-
                    INCRIMINATION
• MD./PATIENT
                          • GOV’T SECRETS
• CLERGYMAN/PEN-
  ITENT                   • TRADE SECRETS

• SPOUSAL                 • WORK PRODUCT
                (c) Joanne Hames            52
         SANCTIONS
• MONETARY

• EVIDENTIARY

• TERMINATING

• CONTEMPT
                (c) Joanne Hames   53
        TIMING (State)
• DISCOVERY MUST BE COMPLETED 30
  DAYS BEFORE INITIAL TRIAL DATE

• MOTIONS TO BE HEARD 15 DAYS
  BEFORE TRIAL DATE

• DISCLOSURE OF EXPERTS 15 DAYS
  BEFORE TRIAL DATE
             (c) Joanne Hames     54
           TIMING
• ARBITRATION CLOSES DISCOVERY

• INFORMAL STIPULATIONS CAN
  CHANGE




             (c) Joanne Hames    55
DISCOVERY REQUESTS AND
      RESPONSES
• PREPARED ON PLEADING PAPER

• USE CAPTION

• SERVE COPIES ON ALL PARTIES



                (c) Joanne Hames   56
   Discovery Documents, cont.
• Not filed with the court (unless subsequent
  motion filed.)

• Propounding party retains originals




                   (c) Joanne Hames             57
DEPOSITION
             • EXAMINATION OF
               WITNESS UNDER
               OATH OUTSIDE
               COURT IN
               PRESENCE OF
               COURT REPORTER




   (c) Joanne Hames         58
 PURPOSE OF DEPOSITION
• DISCOVERY

• EVIDENCE AT TRIAL

• IMPEACHMENT AT TRIAL

• PERPETUATE TESTIMONY
              (c) Joanne Hames   59
    SETTING UP A PARTY
        DEPOSITION

• SELECT A LOCATION
• PREPARE AND SERVE NOTICE OF
  TAKING DEPOSITION
• KEEP ORIGINALS IN OFFICE FILE
• ARRANGE FOR COURT REPORTER
• CALENDAR DATE
              (c) Joanne Hames    60
        Notice of Taking Depo
• Notice is served on all parties through their
  attorneys
• 10 days notice must be given, unless time waived
• Notice can be by mail, fax, express mail--
  CCP1013 applies
   – Mail—add 5 calendar days
   – Other Methods—add 2 court days
   – Fax—requires stipulation

                      (c) Joanne Hames               61
 Notice of Depo—Special Concerns

• Videotaping
• Instant access to transcript
• Depos of corporations and other entities




                   (c) Joanne Hames          62
           Proof of Service
• Signed POS (now a JC form) kept with
  original.

• Unsigned POS attached to document that is
  served



                  (c) Joanne Hames            63
 SETTING UP A NON-PARTY
       DEPOSITION
• SELECT LOCATION
• PREPARE AND SERVE SUBPENA
• PREPARE AND SERVE NOTICE OF
  TAKING DEPOSITION
• KEEP ORIGINALS IN OFFICE FILE
• ARRANGE FOR COURT REPORTER
• CALENDAR DATE
              (c) Joanne Hames    64
  DEPOSITION LOCATION
• WITHIN 75 MILES OF DEPONENTS
  RESIDENCE

• WITHIN 150 MILES OF DEPONENTS
  RESIDENCE IF IN FORUM COUNTY

• WHEREVER COURT ALLOWS
              (c) Joanne Hames    65
   SPECIAL DEPOSITIONS
• DEPOSITIONS ON WRITTEN
  INTERROGATORIES

• INTERJURISDICTIONAL DEPOSITIONS

• DEPOSITIONS TO PERPETUATE
  TESTIMONY
             (c) Joanne Hames   66
(c) Joanne Hames   67
   GUIDELINES FOR DEPO
        SUMMARY
• GET CLEAR              • INCLUDE PAGE
  INSTRUCTIONS             AND LINE
• PARAPHRASE OR          • CHECK OFFICE
  QUOTE?                   MANUAL
• KNOW THE CASE          • INDEX EXTENSIVE
• DON’T EXPECT             SUMMARIES
  CONSISTENCY            • UPDATE
• THINK IN TERMS           SUMMARY
  OF CATEGORIES
               (c) Joanne Hames          68
 DEPOSITION CATEGORIES
      (EXAMPLES)
• BACKGROUND            •   PRIOR CLAIMS
• EDUCATION             •   FACTS OF CLAIM
• PAST                  •   INJURIES
  EMPLOYMENT            •   OTHER DAMAGES
• PRESENT               •   EXPENSES
  EMPLOYMENT            •   PRIOR
• MEDICAL HISTORY           STATEMENTS
• INSURANCE
              (c) Joanne Hames               69
       INTERROGATORIES
• Written questions served by one party to
  another in a civil action

• Must be answered in writing under oath




                   (c) Joanne Hames          70
            PURPOSE OF
         INTERROGATORIES
•   Form basis of pretrial motions
•   Help settlement
•   Narrow disputed issues
•   Impeachment at trial
•   Discover general information



                     (c) Joanne Hames   71
       Interrogatories -- Content
•   General information
•   Party’s factual and legal contentions
•   Factual basis for party’s contentions
•   Description of documents
•   Identity of witnesses



                     (c) Joanne Hames       72
Interrogatories in Superior Court
• Judicial Council Form Interrogatories

• 35 Specially Prepared Questions (or more if
  accompanied by proper declaration.)




                   (c) Joanne Hames         73
          Specially Prepared
            Interrogatories
• Limited to 35 unless good cause shown

• No subparts or conjunctive or disjunctive
  questions

• Multiple sets are O.K., but total questions
  limited to 35
                   (c) Joanne Hames             74
     Contention Interrogatories
• 1. Do you contend that Dr. Crowley is an
  agent of defendant St. Catherine’s?
• 2. If your answer to the above question is
  yes, please state all facts upon which you
  base your contention.
• Or
• 1. If you content that Dr. Crowley is an
  agent of defendant St. Catherine’s, please
  state all facts upon which you base your
  contention         (c) Joanne Hames          75
Before Drafting Questions
                   • Know the case and
                     review file
                   • List elements of
                     causes of action in
                     pleadings
                   • Check form books or
                     other cases in office


         (c) Joanne Hames                    76
         Drafting Questions
• Avoid compound questions
• Use definitions
• Keep language simple and direct; avoid
  “legalese”
• Watch verb tense
• Avoid “yes” or “no” questions

                  (c) Joanne Hames         77
  Responding to Interrogatories
• Answer or object within 30 days
• Answer should be complete; good faith
  effort to obtain information except where
  information is equally available to other
  side.
• Answered under oath (verified).


                   (c) Joanne Hames           78
           Drafting Answers
• Format: Caption and Introduction should be
  similar to Specially Prepared Interrogatories
  – Designate Propounding Party, Responding
    Party and Set No.
• Preliminary Paragraphs sometimes used:
  – Investigation and discovery are continuing and
    answers are based on information known to
    date
                    (c) Joanne Hames                 79
      Drafting Answers, cont.
• Preliminary Paragraphs, cont.
  – All privileges are asserted and not waived
• Respond to each question separately by
  number
  – Answer, object or both
  – Objecting—Must state basis
  – If answer unknown—state this, but remember
    there is a duty to make reasonable inquiry

                     (c) Joanne Hames            80
     Review, Verify and Serve
• Review answers
• Client verifies
• Attorney signs (CA: must sign if any
  objections, but usually does anyway)
• Serve original answers w. verification and
  POS on propounding party; other parties
  receive copies

                   (c) Joanne Hames            81
             Duty to Update
• Federal rules require

• California does not require
  – Follow up interrogatories usually sent before
    trial




                     (c) Joanne Hames               82
     Questions re: Documents
• Rather than summarize or compile
  documents, answering party can allow
  inspection




                  (c) Joanne Hames       83
               OBJECTIONS
•   Must be timely
•   Can be to all or part of question
•   Must state basis of objection
•   Must be signed by attorney




                      (c) Joanne Hames   84
   Motion for Protective Order

• Too many questions (more than 35 with
  declaration)
• oppressive, annoying questions




                 (c) Joanne Hames         85
              MOTIONS
• Motion for Protective Order

• Motion to Compel Answers

• Motion to Compel Further Answers



                  (c) Joanne Hames   86
     Motion to Compel Further
             Answers
• If inadequate response or improper
  objection

• Notice given within 45 days of service of
  response

• Meet and Confer declaration
                   (c) Joanne Hames           87
             OBJECTIONS
• Irrelevant                 • Work Product
• More than 35               • Other Privilege
• Annoyance,                 • Uncertain, Ambiguous
  Embarrassment,               and Unintelligible
  Oppressive or Unduly       • Continuing
  Burdensome                   Interrogatories (State
• Information equally          Court only)
  available

                   (c) Joanne Hames                 88
      MOTIONS TO COMPEL
      FURTHER ANSWERS
•   Notice of Motion
•   Declaration in Support of Motion
•   Memorandum of Points and Authorities
•   Meet and Confer Declaration
•   Separate Statement
       • Set forth each disputed question and answer
       • Give legal and factual reason for request

                         (c) Joanne Hames              89
  PHYSICAL AND MENTAL
 EXAMINATIONS (CCP 2032)
• PARTIES SUBJECT TO EXAM:
    • PARTY TO ACTION

    • AGENT OF ANY PARTY

    • NATURAL PERSON IN CUSTODY OR UNDER
      LEGAL CONTROL OF PARTY



                (c) Joanne Hames           90
  PARTIES QUALIFIED TO
        EXAMINE
• M.D.
• APPROPRIATE LICENSED HEALTH
  CARE PRACTITIONER
• LICENSED CLINICAL PSYCHOLOGIST
  WITH PHD AND 5 YEARS
  EXPERIENCE


             (c) Joanne Hames   91
   PLAINTIFF IN P.I. CASE
• BY DEMAND WITHOUT LEAVE OF
  COURT
• EXAM CANNOT BE PAINFUL,
  PROTRACTED OR INTRUSIVE
• CONDUCTED WITHIN 75 MILES OF P’S
  RESIDENCE


              (c) Joanne Hames   92
  DEMAND FOR PHYSICAL
        EXAM
• SPECIFY TIME, PLACE, MANNER,
  CONDITIONS, SCOPE AND NATURE
• IDENTITY AND SPECIALTY OF M.D.
• SCHEDULED FOR AT LEAST 30 DAYS
  AFTER SERVICE OF DEMAND
• SERVED ON PLAINTIFF AND ALL
  OTHER PARTIES
• NOT FILED WITH COURT
             (c) Joanne Hames      93
  PLAINTIFF’S RESPONSE
• WRITTEN RESPONSE WITHIN 20
  DAYS
• AGREE
• AGREE WITH MODIFICATIONS
• REFUSE
• NOT FILED WITH COURT

             (c) Joanne Hames   94
   FAILURE TO RESPOND
• OBJECTIONS WAIVED

• CAN BE RELIEVED OF WAIVER BY
  MOTION
   • RESPONSE FILED
   • FAILURE DUE TO MISTAKE, INADVERTENCE
     OR EXCUSABLE NEGLECT


               (c) Joanne Hames         95
MENTAL EXAMS AND NON -
 PLAINTIFF P.I. PHYSICAL
• ONLY BY MOTION or

• STIPULATION OF PARTIES

• NEED A SHOWING OF GOOD CAUSE



              (c) Joanne Hames   96
    SANCTIONS FOR FAILURE
•   MONETARY SANCTION
•   ISSUE SANCTION
•   EVIDENCE SANCTION
•   TERMINATING SANCTION
•   WHATEVER COURT THINKS IS JUST



               (c) Joanne Hames     97
     A PHYSICAL EXAM
• CAN BE MONITORED BY ATTORNEY
  OR ATTORNEY’S REPRESENTATIVE
• ATTORNEY CANNOT INTERFERE
  WITH EXAM BUT CAN SUSPEND IT IF
  VIOLATIONS OCCUR
    • MUST GET PROTECTIVE ORDER




                (c) Joanne Hames   98
      MENTAL EXAMS
• NO OBSERVATIONS ALLOWED

• RECORDING IS ALLOWED




             (c) Joanne Hames   99
 REPORT OF EXAMINATION
• COPY CAN BE DEMANDED BY
  EXAMINEE
• COPIES OF EXAMINEE’S REPORTS OF
  SAME CONDITIONS MUST BE
  EXCHANGED
• REPORT DELIVERED WITHIN 30 DAYS
  OF REQUEST OR 15 DAYS PRIOR TO
  TRIAL
             (c) Joanne Hames   100
  Requesting Documents and Other
        Tangible Evidence
• CCP 2031: Allows inspection of things in
  control of a party by making a
  demand/request

• CCP 2020.410-2020.440 Procedure for
  requesting business records from non
  party


                  (c) Joanne Hames           101
        Document Production
• Docs in custody of other party
• Docs in custody of third party
• Public docs




                   (c) Joanne Hames   102
           CCP 2031 et seq.
• Demand to produce/inspect/photograph/ test
  or sample :
  – Documents
  – Photos
  – Any tangible thing
• In custody, control of possession of a party


                    (c) Joanne Hames         103
 DOCUMENT PRODUCTION
• DEMAND TO PRODUCE DOCUMENTS-
  CCP 2031

• DEPOSITION SUBPENA FOR
  BUSINESS RECORDS--CCP 2020



              (c) Joanne Hames   104
            CCP 2031
• RELATES TO ITEMS IN POSSESSION,
  CUSTODY OR CONTROL OF PARTY
• INSPECTION OF DOCUMENTS
• INSPECTION OF TANGIBLE THINGS
• INSPECTION OF LAND



              (c) Joanne Hames      105
    INSPECTION UNDER 2031
•   INSPECT
•   PHOTOGRAPH
•   TEST
•   SAMPLE
•   COPY
•   MEASURE
•   SURVEY
•   BY PARTY OR REPRESENTATIVE
                (c) Joanne Hames   106
DEMAND FOR PRODUCTION
• FIRST PARAGRAPH: DEMANDING
  PARTY, SET NUMBER AND
  RESPONSIDNG PARTY

• EACH DEMAND IN A SET TO BE
  SEPARTELY NUMBERED


             (c) Joanne Hames   107
DEMAND FOR PRODUCTION
        (C0NT)
• DOCUMENTS OR ITEMS TO BE
  SPECIFICALLY DESCRIBED BY ITEM
  OR CATEGORY

• SPECIFY REASONABLE TIME FOR
  INSPECTION AT LEAST 30 DAYS IN
  FUTURE

              (c) Joanne Hames     108
DEMAND FOR PRODUCTION
        (CONT)
• SPECIFY PLACE FOR INSPECTION

• SPECIFY ANY RELATED ACTIVITY
  (I.E. TEST)

• SERVE ON ALL PARTIES

              (c) Joanne Hames   109
     RESPONSE TO DEMAND
• MOTION FOR PROTECTIVE ORDER
• WRITTEN RESPONS
 –   AGREE TO COMPLY
 –   OBJECT
 –   STATEMENT OF INABILITY TO COMPLY
 –   RESPOND TO EACH ITEM
 –   SIGNED BY PARTY UNDER OATH
 –   SERVED WITHIN 20 DAYS OF SERVICE
                (c) Joanne Hames    110
FAILURE TO FILE WRITTEN
       RESPONSE
• WAIVER OF OBJECTIONS

• RELIEVED BY MOTION

• DEMANDING PARTY MAKES MOTION
  TO COMPEL (AFTER MEET AND
  CONFER)
             (c) Joanne Hames   111
    MOTION TO COMPEL
    FURTHER RESPONSE
• CONTESTS OBJECTIONS OR
  STATEMENT OF INABILITY TO
  PRODUCE

• MADE WITHIN 45 DAYS OF SERVICE
  OF WRITTEN RESPONSE


             (c) Joanne Hames      112
MOTION FOR COMPLIANCE
• MADE AS A RESULT OF FAILURE TO
  ACTUALLY PRODUCE




             (c) Joanne Hames      113
 DEPOSITION OF BUSINESS
  RECORDS-- CCP 2020 (d)
• RECORDS NOT IN POSSESSION OF
  PARTY
• DEPOSITION SUBPENA
• COMPLIANCE NO EARLIER THAN 20
  DAYS AFTER ISSUANCE OR 15 DAYS
  AFTER SERVICE WHICHEVER IS
  LATER
• NO DECLARATION OF GOOD CAUSE
  REQUIRED    (c) Joanne Hames   114
    DEPOSITION OFFICER
• PROFESSIONAL, REGISTERED
  PHOTOCOPIER

• NO FINANCIAL INTEREST IN MATTER




             (c) Joanne Hames   115
  DELIVERY OF RECORDS
• MADE EITHER AT PLACE OF DEPO
  OFFICER OR

• INSPECTION TAKES PLACE AT
  OFFICE OF BUSINESS WHOSE
  RECORDS ARE SOUGHT


             (c) Joanne Hames    116
  DELIVERY OF RECORDS,
          cont
• COMPLY WITH REQUIREMENTS OF
  EVIDENCE CODE 1560 THROUGH 1563

• COMPLY WITH REQUIREMENTS OF
  NOTICE TO CONSUMER



             (c) Joanne Hames   117
  EVIDENCE CODE 1560-63
• CUSTODIAN CAN DELIVER COPY TO
  DEPO OFFICER WITH PROPER
  AFFIDAVIT

• DEMANDING PARTY MUST PAY FOR
  COPIES (COST PER PAGE AND PER
  HOUR FOR PERSON COPYING)

             (c) Joanne Hames     118
   CCP 1985.3--NOTICE TO
        CONSUMER
• REQUIRED PRIOR TO DATE FOR
  PRODUCTION

• SERVED AT LEAST 10 DAYS PRIOR TO
  PRODUCTION AND 5 DAYS PRIOR TO
  SERVICE ON CUSTODIAN


              (c) Joanne Hames   119
     Practical Aspects of Document
      Production: Producing Party
•   Organize documents
•   Read and identify documents
•   Code documents
•   Create privilege log




                   (c) Joanne Hames   120
REQUEST FOR ADMISSIONS
       CCP 2033
• REQUEST TO ADMIT GENUINESS OF
  DOCUMENT OR
• TRUTHFULNESS OF FACT, OPINION
  RELATING TO FACT OR APPLICATION
  OF LAW TO FACT
• MAY RELATE TO ANY MATTER IN
  CONTROVERSY BETWEEN PARTIES

             (c) Joanne Hames   121
         ADMISSIONS
• 35 QUESTION LIMIT EXCEPT FOR
  GENUINESS OF DOCUMENTS
• CAN ASK MORE WITH DECLARATION
  OF GOOD CAUSE
• OBJECT TO MORE THAN 35 LIKE YOU
  DO WITH INTERROGATORIES


             (c) Joanne Hames   122
    FORMAT OF REQUEST FOR
         ADMISSIONS
• SIMILAR TO INTERROGATORIES
• JUDICIAL COUNCIL FORMS OPTIONAL
• NO COMPOUND QUESTIONS
• DEFINITIONS O.K.
• INSTRUCTIONS O.K. IS FOUND IN J.C.
  FORMS
• OFTEN ACCOMPANIED WITH SET OF
  INTERROGATORIES
                (c) Joanne Hames       123
RESPONSE TO REQUEST FOR
      ADMISSIONS
• 30 DAYS TO RESPOND
• MOTION FOR PROTECTIVE ORDER
• ADMISSION/DENIAL/INABILITY TO
  RESPOND
• OBJECTION TO REQUEST



             (c) Joanne Hames     124
   FAILURE TO RESPOND
• RESPONDING PARTY WAIVES
  OBJECTIONS SUBJECT TO COURT
  ORDER GRANTING RELIEF
• REQUESTING PARTY MOVES FOR
  ORDER HAVING ADMISSIONS
  DEEMED ADMITTED AND
  SANCTIONS

             (c) Joanne Hames   125
    MOTION TO COMPEL
    FURTHER RESPONSE
• CHALLENGES OBJECTION

• CHALLENGES INCOMPLETE ANSWER

• NOTICE GIVEN WITHIN 45 DAYS OF
  SERVICE OF RESPONSE

              (c) Joanne Hames     126
MOTION TO WITHDRAW OR
   AMEND RESPONSE
• IS ADMISSION A RESULT OF
  MISTAKE, ETC.

• COURT CAN GRNT ADDITION
  DISCOERY AND COSTS



              (c) Joanne Hames   127
   EFFECT OF ADMISSION
• MATTER DEEMED CONCLUSIVELY
  PROVED AT TRIAL AGAINST PARTY
  MAKING ADMISSION




             (c) Joanne Hames     128
     EFFECT OF DENIAL
• IF MATTER PROVED AT TRIAL, COST
  OF PROVING MATTER CAN BE
  ASSESSED AGAINST PARTY
  DENYING IT




              (c) Joanne Hames   129
    EXPERT DISCLOSURE
        (CCP 2034)
• DEMAND FOR SIMULTANEOUS
  DXCHANGE
• MADE NO LATER THAN 70 DAYS
  PRIOR TO TRIAL OR 10TH DAY AFTER
  INITIAL TRIAL DATE SET
• DISCLOSURE TO TAKE PLACE 50
  DAYS PRIOR TO TRIAL OR 20 DAYS
  AFTER SERVICE, WHICHEVER IS
               (c) Joanne DATE
  CLOSER TO TRIAL Hames          130
MATTERS TO BE DISCLOSED
• IDENTITY OF EXPERTS WHO WILL
  TESTIFY
• INFORMATION ABOUT EXPERT
• COPIES OF EXPERT REPORTS




             (c) Joanne Hames    131
RESPONSE TO DEMAND FOR
      DISCLOSURE
• NAME AND ADDRESS OF WITHESS
• OR STATEMENT THAT NO WITNESS
  TO BE USED
• EXPERT WITNESS DECLARATION
  SIGNED BY ATTORNEY



             (c) Joanne Hames    132
       EXPERT WITNESS
        DECLARATION
• EXPERT QUALIFICATIONS
• SUBSTANCE OF PROPOSED TESTIMONY
• REPRESENTATION THAT EXPERT HAS
  AGREED TO TESTIFY
• EXPERT’S HOURLY AND DAILY FEE FOR
  DEPOSITION AND CONSULTATION WITH
  RETAINING ATTORNEY


               (c) Joanne Hames       133
     SUPPLEMENTING AND
        AUGMENTING
• WITHIN 20 DAYS OF EXCHANGE A
  PARTY CAN ADD A NEW EXPERT
  AND MUST DISCLOSE
• AFTER 20 DAYS, PARTY CAN MAKE
  MOTION TO AUGMENT LIST WITH
  NEWLY RETAINED EXPERT


             (c) Joanne Hames     134
  AMENDING EXPERT LIST
• MOTION TO SUBMIT TARDY EXPERT
  LIST

• FAILURE TO DISCLOSE A RESULT OF
  MISTAKE, ETC.

• CANCTIONS CAN BE IMPOSED
              (c) Joanne Hames   135
  DEPOSITION OF EXPERT
• CCP 2034
• WITHIN 75 MILES OF COURT
• EXPERT ENTITLED TO REASONABLE
  FEE
• NO SUBPENA NEEDED FOR WITNESS



             (c) Joanne Hames   136
   DISCOVERY MOTIONS
• MOTION FOR PROTECTIVE ORDER
• MOTION TO COMPEL RESPONSE
• MOTION TO COMPEL FURTHER
  RESPONSE
• MOTION FOR SANCTIONS
• MISCELLANEOUS MOTIONS

             (c) Joanne Hames   137
  DISCOVERY MOTIONS
• DISCOVERY ACT--CCP 2016 ET SEQ.

• CALIFORNIA RULES OF COURT:
    • RULE 301 ET SEQ.




                  (c) Joanne Hames   138
       GENERAL FORMAT
•   NOTICE OF MOTION
•   DECLARATIONS
•   SEPARATE STATEMENT
•   MEMORANDUM OF POINTS AND
    AUTHORITIES



              (c) Joanne Hames   139
       NOTICE OF MOTION
• NATURE OF MOTION AND GROUNDS
• BELOW CASE NUMBER:
   •   DATE
   •   TIME
   •   LOCATION OF HEARING
   •   NAME OF HEARING JUDGE
   •   FILING DATE OF ACTION
   •   TRIAL DATE

                 (c) Joanne Hames   140
           EXHIBITS
• EACH EXHIBIT SEPARATED WITH
  HARD PAPER OR PLATIC TAB
  EXTENDING BELOW BOTTOM OF
  PAGE WITH EXHIBIT DESIGNATION

• INDEX TO EXHIBITS

• ENGLISH TRANSLATION IF NEEDED
              (c) Joanne Hames    141
      MEMO OF POINTS AND
      AUTHORITIES (Rule 313)
•   Statement of facts
•   Concise statement of law, evidence and arguments
•   Discussion of law
•   Cases--only official cite needed
•   California Style Manual or Bluebook
•   Copies of non-California authorities to be attached
    (also Calif. Authorities if prior to publication in
    Advance Sheet)
                       (c) Joanne Hames              142
      MEMO OF P AND A’S
• 15 page limit for opening and responding
  memo
• 10 page limit for reply
• Memo’s in excess of 10 pages require TOA
  and TOC
• Memo’s in excess of 15 pages require
  summary of argument

                 (c) Joanne Hames        143
 DECLARATIONS/AFFIDAVITS

• FIRST PERSON NARRATIVE
• FACTUAL BASIS FOR MAKING OR
  OPPOSING MOTION
• MEET AND CONFER REQUIREMENT
• CAPTION: NAME OF DECLARANT
  AND IDENTIFICATION OF MOTION IT
  SUPPORTS OR OPPOSES

              (c) Joanne Hames   144
   RULE 335--FORMAT OF
   DISCOVERY MOTIONS
• REQUIRES SEPARATE STATEMENT
  WHERE FURTHER RESPONSES
  REQUESTED\
• INCLUDES REQUEST, RESPONSE
  GIVEN, FACTUAL AND LEGAL
  REASONS FOR COMPELLING
   • CAN’T INCORPORATE REQUESTS AND
     RESPONSES BY ATTACHING DISCOVERY

               (c) Joanne Hames         145
         Rule 335, cont.
• ALL INTERROGS, ETC, MUST BE
  IDENTIFIED BY SET AND NUMBER

• IF OTHER DOCUMENTS ARE
  RELEVANT, THEY ARE TO BE
  SUMMARIZED


             (c) Joanne Hames    146
 DEPOSITION TESTIMONY
• ATTACH FOLLOWING:
   • TITLE PAGE
   • ONLY RELELVANT PAGES OF TRANSCRIPT
     WITH PAGE NUMBERS VISIBLE
   • HIGHLIGHT RELEVANT PORTIONS OF
     TRANSCRIPT




               (c) Joanne Hames           147
 PROPOSED ORDER/ORDER
• FILE AND SERVE PROPOSED ORDER,
  BUT DO NOT ATTACH TO OTHER
  PAPERS

• PREVAILING PARTY ALWAYS
  PREPARES


             (c) Joanne Hames   148
      DISCOVERY IN LIMITED
       JURISDICTION CASES
     (ECONOMIC LITIGATION)
• CCP 90 - 100

• NOTICE AND FORMAT
  REQUIREMENTS LIKE SUPERIOR
  COURT


                 (c) Joanne Hames   149
DISCOVERY IN LIMITED JURIS.
         CASES
• PERMISSIBLE FORMS:
    • COMBINATION OF 35 OF: INTERROGS,
      DEMANDS TO PRODUCE, REQUESTS FOR
      ADMISSIONS
    • ONE ORAL OR WRITTEN DEPO
    • DEPO SUBPENAS FOR DOCUMENTS
    • PHYSICAL/MENTAL EXAM
• EXTENDED BY COURT ORDER OR
  STIPULATION
                (c) Joanne Hames         150
   CASE QUESTIONNAIRE
• JUDICIAL COUNCIL FORM
• DESIGNED TO ELICIT
  FUNDAMENTAL INFORMATION
• PLAINTIFF CAN SERVE WITH
  COMPLAINT, BUT MUST ALSO
  SERVED COMPLETED COPY


            (c) Joanne Hames   151
 REQUEST FOR STATEMENT IDENTIFYING
      WITNESSES AND EVIDENCE


• ANY PARTY CAN REQUEST 45- 30
  DAYS PRIOR TO TRIAL

• 20 DAYS TO RESPOND

• COURT WILL EXCLUDE EVIDENCE
  NOT INCLUDED
              (c) Joanne Hames       152
 PREPARED TESTIMONY BY
      DECLARATION
• IN LIEU OF CALLING WITNESS (LAY
  OR EXPERT) IF
• COPY SERVED ON OTHER PARTY 30
  DAYS PRIOR TO TRIAL
• AFFIANT LIVES WITHIN 150 MILES OF
  COURT AND ADDRESS IS PROVIDED
  TO OTHER SIDE AND WITNESS
  AVAILABLE FOR SERVICE OF
  SUBPOENA      (c) Joanne Hames  153
         SETTLEMENT
• GOVERNED BY CONTRACT LAW

• DISPOSES OF CASE

• ALSO KNOWN AS COMPROMISE AND
  RELEASE (C & R)

              (c) Joanne Hames   154
       PREPARING FOR
        SETTLEMENT
• ORGANIZE FILE AND “SPECIALS”

• DEMAND LETTERS

• SETTLEMENT BROCHURES



              (c) Joanne Hames   155
      SPECIAL CALIFORNIA
       RULES/CONCERNS
•   CCP 998 OFFER
•   CCP 877.5 --SLIDING SCALE
•   STRUCTURED SETTLEMENT
•   MINORS




                 (c) Joanne Hames   156
TORT CASES: SETTLEMENT
 AND MULTI-DEFENDANTS
• LIABILITY OF JOINT TORTFEASORS
  – COMMON LAW: EACH DEF. LIABLE FOR
    ALL DAMAGES TO PLAINTIFF

  – CALIF: CHANGES COMMON LAW AS TO
    GENERAL DAMAGES
    • SETTLEMENT BY ONE DEF CREATES
      PROBLEMS

                (c) Joanne Hames      157
       HYPOTHETICAL
• P SUES D & E
• P SETTLES WITH D FOR 100K
• P GOES TO TRIAL AND GETS
  JUDGMENT AGAINST E FOR 500K

• WHAT RIGHTS DOES E HAVE
  AGAINST D?
             (c) Joanne Hames   158
GOOD FAITH SETTLEMENT
• GOOD FAITH SETTLEMENT BY ONE
  OF MANY DEFENDANTS RELEASES
  SETTLING DEFENDANT FROM ALL
  LIABILITY
• MUST BE IN GOOD FAITH
• DETERMINED BY MOTION


             (c) Joanne Hames    159
           DISMISSAL
• VOLUNTARY
   • BY PARTIES
   • JUDICIAL COUNCIL FORM


• INVOLUNTARY
   • BY COURT: DISCOVERY SANCTIONS
               TIME VIOLATIONS


                (c) Joanne Hames     160
          DISMISSAL

• CLEARS COURT RECORD

• CAN INCLUDE ENTIRE CASE OR PART
  OF CASE

• WITH PREJUDICE OR WITHOUT

             (c) Joanne Hames   161
    WITH AND WITHOUT
        PREJUDICE
• WITHOUT PREJUDICE--CAN REFILE IF
  SOL ALLOWS

• WITH PREJUDICE--CANNOT REFILE;
  SETTLEMENTS ARE WITH PREJUDICE



              (c) Joanne Hames   162
   ALTERNATIVES TO
SETTLEMENT AGREEMENT
• CONSENT DECREE

• CONFESSION OF JUDGMENT

• STIPULATED JUDGMENT



             (c) Joanne Hames   163
               ADR
•   BINDING OR NON-BINDING
•   MEDIATION
•   ARBITRATION
•   MEDIATION/ARBITRATION
•   EARLY NEUTRAL EVALUATION
•   MINI TRIALS

               (c) Joanne Hames   164
            PRETRIAL
• SUBPOENA WITNESSES
• ORGANIZE FILE/EXHIBITS
• MARK AND COPY EXHIBITS
• PREPARE TRIAL NOTEBOOK
• ARRANGE DEMONSTRATIVE EVIDENCE
• ARRANGE FOR AUTHENTICATION OF
  EXHIBITS
• PREPARE PROPOSED JURY INSTRUCTIONS
• TRIAL BRIEF   (c) Joanne Hames   165
            Settlement Conference
• (c) [Settlement conference statement] No later than five court days
  before the date set for the settlement conference, each party must
  submit to the court and serve on each party a mandatory settlement
  conference statement containing a good faith settlement demand and
  an itemization of economic and non-economic damages by each
  plaintiff and a good faith offer of settlement by each defendant. The
  statement must set forth and discuss in detail all facts and law pertinent
  to the issues of liability and damages involved in the case as to that
  party and comply with any additional requirement imposed by local
  rule.
• (Subd (c)relettered and amended effective July 1, 2002; adopted as
  subd (d) effective January 1, 1985; previously amended effective
  January



                               (c) Joanne Hames                          166
    EXHIBITS PRESUMED
      AUTHTHENTIC
• CERTIFIED COPIES OF PUBLIC DOCS
• OFFICIAL PUBLICATIONS
• NEWSPAPERS AND PERIODICALS
• TRANDE INSCRIPTIONS
• NOTARIZED DOCS (BUT THEY CANNOT BE
  HEARSAY)
• COMMERCIAL PAPER
• SIGNATURES OF PUBLIC EMPLOYEES AND
  FOREIGN OFFICIALS Hames
                (c) Joanne         167
     AUTHENTICATING
    BUSINESS RECORDS
• DRAFT DECLARATION OF
  CUSTODIAN OF RECORDS
 – RECORDS ARE TRUE AND CORRECT
   COPIES
 – RECORDS ARE KEPT IN ORDINARY
   COURSE OF BUSINESS
 – SIGNED BY CUSTODIAN
 – EVID. CODE 1561
             (c) Joanne Hames     168
 AUTHENTICATING OTHER
      EVIDENCE
• WITNESS TESTIFIES THAT IT IS
  WHAT IT PURPORTS TO BE

• I.E. PHOTOS




                (c) Joanne Hames   169
      JURY INSTRUCTIONS
• California Civil Jury Instructions (Judicial
  Council)

• B.A.J.I.

• Special Instructions

                    (c) Joanne Hames             170
           Drafting Proposed Jury
                 Instructions
•
    [1]--Format
  Each proposed instruction must [Cal. Rules of Ct., Rule
  229(c) ]:
• - Be on a separate page or pages;
    - Contain the instruction number and title of the instruction
    at the top of the first page of the instruction; and
    - Be prepared without any blank lines or unused bracketed
    portions, so that it can be read directly to the jury.

                           (c) Joanne Hames                    171
     Drafting Jury Instructions
• Each instruction presented, except
  instructions presented by CACI number
  reference, must have at the bottom of the
  page a citation of authorities which supports
  the instruction. No citation is required for
  approved instructions [Cal. Rules of Ct.,
  Rule 229(d)

                   (c) Joanne Hames          172
Format of CACI Instructions

Each proposed instruction must [Cal. Rules of Ct., Rule 229(c) ]:
- Be on a separate page or pages;
- Contain the instruction number and title of the instruction at the top of the first page of the
instruction; and
- Be prepared without any blank lines or unused bracketed portions, so that it can be read
directly to the jury.

Each set of proposed jury instructions must have a cover page, containing the caption of the
case and stating the name of the party proposing the instructions, and an index listing all the
proposed instructions [Cal. Rules of Ct., Rule 229(b)(2) ].

In the index, approved jury instructions must be identified by their reference numbers. The
index must contain a checklist that the court can utilize to indicate whether the instruction
was [Cal. Rules of Ct., Rule 229(b)(3) ]:
(1) Given as proposed;
(2) Given as modified;
(3) Refused; or
(4) Withdrawn.

Each set of proposed jury instructions must be bound loosely [Cal. Rules of Ct., Rule
229(b)(4) ].                            (c) Joanne Hames                             173
              TRIAL
•   VOIR DIRE
•   OPENING STATEMENTS
•   CASE IN CHIEF
•   DEFENSE
•   REBUTTAL
•   CLOSING ARGUMENTS
•   JURY INSTRUCTIONS
               (c) Joanne Hames   174
            EVIDENCE
•   TESTIMONY
•   DEMONSTRATIVE
•   DOCUMENTARY
•   JUDICIAL NOTICE




                (c) Joanne Hames   175
       TRIAL MOTIONS
• IN LIMINE—EVIDENTIARY

• NON SUIT

• DIRECTED VERDICT



             (c) Joanne Hames   176
POST TRIAL PROCEEDINGS--
   PREVAILING PARTY
• NOTICE OF ENTRY OF JUDGMENT
• COST BILL (MEMORANDUM OF
  COSTS)
• COLLECTION
   •   RECORDING ABSTRACT OF JUDGMENT
   •   ORDER OF EXAMINATION
   •   WRIT OF EXECUTION/WAGE ATTACHMENT
   •   FILE SATISFACTION OF JUDGMENT

                 (c) Joanne Hames      177
POST TRIAL PROCEEDINGS -
         -LOSER
• STATEMENT OF DECISION (CT.
  TRIAL)
• MOTIONS
    • NEW TRIAL
    • JUDGMENT N.O.V.
    • TAX COST
• APPEAL
• TIME LIMITS CRITICAL
                 (c) Joanne Hames   178
     MOTION PROCEDURE
• Similar to pretrial motions
  – File appropriate motions
  – Call trial department for date




                     (c) Joanne Hames   179
                   Appeal
• Unlimited Jurisdiction
  – 60 days


• Limited Jurisdiction
  – 30 days
  – Appellate division of Superior Court


                    (c) Joanne Hames       180
                 Appeal
• Notice of Appeal/Filing fee/Where filed
• Request for Clerk’s Transcript and
  Reporter’s Transcript
• Brief Requirements
  – Due dates
  – Covers
  – Content

                  (c) Joanne Hames          181
                 1000
      Essential Factual Elements
Paula Perry claims that she was harmed because of
   the way Joe Buff managed his property. To
   establish this claim, Paula Perry must prove all of
   the following:
1. That Joe Buff owned the property,
2. That Joe Buff was negligent in the use or
   maintenance of the pr operty,
3. That Paula Perry was harmed, and
4. That Joe Buff’s negligence was a substantial
   factor in causing Paula Perry’s harm.

                      (c) Joanne Hames              182
       What is Computer Forensics?


“Computer Forensics is simply the
application of computer investigation
and analysis techniques in the
interest of determining potential legal
evidence.”

                                    Judd Robbins
                 (c) Joanne Hames             183
           The Three A’s

Basic methodology

Acquire

Authenticate

Analyze
                (c) Joanne Hames   184
  Bit Stream Image Copy




Original                      Copy


           (c) Joanne Hames          185
                   The Process
It is critical that you obtain an exact image

Computer evidence is fragile

The forensic methodology used must be completely
 non-invasive to the original data

Special forensic tools allow for safe recovery

The forensic process is run on the image
                        (c) Joanne Hames          186
Bit Stream Image vs File Copy




             versus



Bit Stream                       File


              (c) Joanne Hames          187
         So, what’s missing?



Deleted Files

File Remnants

Swap File Data
                                    File Copy
                 (c) Joanne Hames               188
      What is capable from a CF exam?
The nature of data storage on computer disks also often allows recovery
of data from:

                            File slack




                         Formatted disks
                              (c) Joanne Hames                  189
Who cares about the missing data?
  Steinberg, Moorad, & Dunn vs. David Dunn
            "This is a case about
             greed, fraud, betrayal,
             theft, attempted cover-up
             and extortion."

            Departing partner
                                         $45 million
             stealing company client
             lists and/or files and
             contracts.

            Memo had been deleted
             from a computer, but has
             been uncovered by
             forensic examiner.

                     (c) Joanne Hames           190

				
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