Table of Contents
CHAPTER 1. Fundamental Overview
§1.10 Introduction
§1.20 Contents
§1.30 Scope and Range
§1.40 Goals and Targets
§1.50 Boot Camp
§1.51 Step 1: Client Interrogation
§1.52 Step 2: Third Party Assistance [Lay and Expert]
§1.53 Step 3: Mandatory Disclosure
§1.54 Step 4: Judicially Approved Forms
§1.55 Step 5: Attorney Initiated Discovery
§1.56 Step 6: The War Begins
§1.60 Universal Strategy
§1.61 Universal Orders
§1.62 The Discovery Plan (i.e., The Battle Plan)
CHAPTER 2. Is It Discoverable?
§2.10 What is the Scope of Discovery?
§2.11 Does Discovery Equate To Admissibility?
§2.20 Is It Discoverable?
§2.21 Degree 1: Immediately Discoverable
§2.22 Degree 2: Discoverable
§2.23 Degree 3: Discovery Qualified
§2.24 Degree 4: Discovery Unlikely
§2.25 Degree 5: Not Discoverable
§2.26 Degree 6: Never Discoverable
§2.30 Are Electronic and Digital
Information Discoverable?
§2.40 What are the Available Discovery
Weapons?
§2.50 Is There a List of Every
Conceivable Defense to any Discovery Demand?
§2.60 When Can My Client Destroy
Records?
CHAPTER 3. Electronic, Digital and Other
Media
§3.10 Preservation and Destruction
§3.11 Arguments and Authority
§3.11(a) For the Discovering Party
§3.11(b) For the Target
§3.12 Spoliation
§3.20 Evidentiary Analysis
§3.21 Testimonial Evidence
§3.22 Documentary Evidence
§3.22(a) Sample Notice to Preserve
§3.22(b) Media Preservation
§3.22(c) Compliance
§3.22(d) Cost Shifting
§3.23 Real Evidence
§3.24 Demonstrative Evidence
§3.30 Terminology
CHAPTER 4. Weapon Selection, Attack and
Enforcement
§4.10 The Attack
§4.11 Weapons
§4.11(a) Requests for Admissions
§4.11(b) Interrogatories
§4.11(c) Notices for Production
§4.11(d) Demands for Inspection
§4.11(e) Physical and Mental Examinations
§4.11(f) Depositions
§4.12 The Range and Scope of Discovery [Rule 26]
§4.12(a) Rule 26(a)—Required Disclosures
§4.12(b) Rule 26(b)—Attorney Initiated Discovery
§4.12(c) Rule 26(c)—Protective Orders
§4.12(d) Rule 26(d)—Timing
§4.12(e) Rule 26(e)—Supplementation
§4.12(f) Rule 26(f)—Conference & Discovery Plan
§4.12(g) Rule 26(g)—Signatures
§4.13 State Counterparts [of Rule 26]
§4.20 Examination of Response
§4.30 Enforcement
§4.31 37-Caliber Ordinance [Rule 37]
§4.32 Other Enforcement Tools
§4.32(a) Rule 26(g)
§4.32(b) Rule 11
§4.32(c) Rule 16
§4.40 Follow-Up
§4.50 Appeals
§4.60 The Forms That You Need
Form 4.1 Report Outlining
Discovery Plan
Form 4.2 Combined Discovery Request
CHAPTER 5. Requests for Admissions
§5.10 Basic Training and Strategy
§5.20 Drafting Your Requests and Timing
Your Attack
§5.21 Drafting—Rules and Suggestions
§5.30 Admissions to Target and Capture
§5.31 Facts Relevant to the Dispute
§5.32 Opinions
§5.33 Application of Law to Facts
§5.34 Foundations for Document Admissibility
§5.40 The Rules That You Need
§5.41 Federal Rules Pertaining to Requests and Refusals
§5.50 Responding to the Requests
§5.51 Denial
§5.52 Admission
§5.53 Partial Admission
§5.54 Qualified Admission
§5.55 Statement of Lack of Information
§5.56 Objection To Requests
§5.57 Motion for Protective Order
§5.60 Enforcing the Requests
§5.70 The Forms That You Need
Form 5.1 Requests for Admissions
Form 5.2 Response to Requests for Admissions
Form 5.3 Initial Request Letter (Requiring Respondent to Research Document)
Form 5.4 Initial Request Letter (Requiring Respondent to Conduct
Investigation)
Form 5.5 Motion in Limine to Preclude the Introduction of Evidence
Contradicting Respondent’s Admissions
CHAPTER 6. Interrogatories
§6.10 Basic Training and Strategy
§6.11 Anatomy of a Single Interrogatory
§6.12 The Interrogatory’s Advantages
§6.13 The Interrogatory’s Disadvantages
§6.14 Three Critical Considerations
§6.20 Tips for Timing Your Attack
§6.30 Information to Target and Capture
§6.31 Identity and Capacity of Responding Person
§6.32 Identity and Location of Witnesses and Parties
§6.33 Identity and Location of Evidence
§6.34 Elements of Your Claim or Defense
§6.35 The Enemy’s Pleading
§6.36 Non-Evidentiary Disclosures
§6.37 Enemy Expert Information
§6.40 The Rules That You Need
§6.41 Federal Rules Pertaining to Interrogatories
§6.42 The States’ Rules
§6.50 Constructing Your Interrogatories
§6.51 Preliminary Considerations
§6.52 Rules of Construction
§6.60 Responding to Interrogatories
§6.61 Provide Answers
§6.62 State That Answers are Subject to Pending Discovery
§6.63 State a Lack of Information or Knowledge
§6.64 Elect To Produce Business Records
§6.65 Object To Questions
§6.66 Seek a Protective Order
§6.70 Enforcing the Requests
§6.80 The Forms That You Need
Form 6.1 Plaintiff’s Interrogatories to Defendant
Form 6.2 Defendant’s Interrogatories to Plaintiff
Form 6.3 Interrogatories - Contract/Accounting Related Actions
Form 6.4 Interrogatories - Tort Related Actions
Form 6.5 Interrogatories - Defamation
Form 6.6 Interrogatories - Fraud
Form 6.7 Interrogatories - Vehicular Negligence
Form 6.8 Interrogatories - Malpractice
Form 6.9 Interrogatories - Premises Liability
Form 6.10 Interrogatories - Product Liability
Form 6.11 Interrogatories - Domestic Relations
Form 6.12 Interrogatories - Testamentary Challenges
Form 6.13 Defendant’s Motion for a Protective Order
Form 6.14 Answers to Interrogatories
Form 6.15 Motion to Permit Service of Additional Interrogatories
Form 6.16 Answers to Requesting Party’s First Set of Interrogatories
Form 6.17 Objections to the Requesting Party’s First Set of Interrogatories
Form 6.18 Responding Party’s Exercise of Option to Produce Business Records
in Response to Requesting Party’s First Set of Interrogatories
Form 6.19 Enforcement for Interrogatories - Letters
Form 6.20 Motion to Compel Answers to Interrogatories
Form 6.21 Motion to Compel Supplemental Answers to Interrogatories
Form 6.22 Motion to Compel Additional Answers to Interrogatories
Form 6.23 Motion for Contempt Citation, Sanctions and Dispositive Relief
Form 6.24 Answer to Motion to Compel Discovery
Form 6.25 Agreement for Extension - Letter
Form 6.26 Response to Motion to Compel Answers to Interrogatories
Form 6.27 Response to Motion for Sanctions and Dispositive Relief
CHAPTER 7. Notices for Production
§7.10 Basic Training and Strategy
§7.11 Mixing Other Weapons
§7.12 The Document’s Strategic Significance
§7.20 Tips For Timing Your Attack
§7.30 Identifying Your Quarry
§7.40 The Rules That You Need
§7.41 Federal Rules Pertaining to Production of Documents
§7.42 The State Rules Pertaining to Production
§7.50 Constructing Your Demands
§7.51 Three-Step Program
§7.52 Basic Rules of Construction
§7.52(a) Size Doesn’t Matter
§7.52(b) Little Big Words
§7.52(c) Safety In Numbers
§7.52(d) Mix Generals with Privates
§7.52(e) Keep it Simple
§7.60 Responding to the Requests
§7.61 Burial Alive
§7.62 The Sorcerer’s Mixture
§7.63 Exorcism
§7.64 Document Destruction
§7.70 Enforcing Compliance
§7.80 The Forms That You Need
Form 7.1 Notice for Production of Documents
Form 7.2 Response to Notice for Production (Documents Attached)
Form 7.3 Response to Notice for Production (Documents Located Elsewhere)
Form 7.4 Response to Notice for Productions (Objections)
Form 7.5 Motion to Compel Production
CHAPTER 8. Requests for Inspection
§8.10 Basic Training and Strategy
§8.20 Tips for Timing Your Attack
§8.30 Dealing with Real Evidence
§8.31 Care and Handling of Real Evidence
§8.32 Five Degrees of Inspection
§8.32(a) Degree One—Pure Observation
§8.32(b) Degree Two—Recording
§8.32(c) Degree Three—Possessory Inspection
§8.32(d) Degree Four—Non-Destructive Testing
§8.32(e) Degree Five—Destructive Testing
§8.40 The Rules That You Need
§8.41 Federal Rules Pertaining to Inspection
§8.42 State Rules Pertaining to Inspection
§8.50 Constructing Your Requests
§8.60 Responding to the Requests
§8.61 Compliance
§8.62 Objection and Delay
§8.63 Spoliation
§8.70 Enforcing Compliance
§8.80 The Forms That You Need
Form 8.1 Notice for Inspection of Property
Form 8.2 Notice for Inspection and Examination of Real Property
Form 8.3 Notice for Inspection and Examination of Personal Property
Form 8.4 Response to Notice for Inspection of Property (Acquiescence)
Form 8.5 Response to Notice for Inspection of Property
Form 8.6 Motion to Permit Inspection
CHAPTER 9. Physical and Mental
Examinations
§9.10 Basic Training and Strategy
§9.20 Constructing and Timing Your
Attack
§9.21 Ordering the Examination
§9.21(a) Notice
§9.21(b) Timing
§9.22 Obtaining the Examiner’s Reports
§9.30 Targets
§9.31 People Subject to Examination
§9.32 Taking Aim at the Examiner’s Reports
§9.40 The Rules That You Need
§9.41 Federal Rules Pertaining to Physical and Mental Examinations
§9.42 State Rules Pertaining to Physical and Mental Examinations
§9.50 Defenses and Countermeasures
§9.51 Compliance—Preparation for the Examination
§9.52 Bringing an Observer
§9.53 Taping the Examination
§9.54 Objecting to the Examination
§9.60 Enforcing Compliance
§9.70 The Forms That You Need
Form 9.1 Notice of Physical and Mental Examination
Form 9.2 Response to Notice for Physical and Mental Examination
Form 9.3 Motion to Compel Physical/Mental Examination
CHAPTER 10. Depositions
§10.10 Basic Training and Strategy
§10.11 Introducing Hand to Hand Combat
§10.20 The People That You Intend to
Depose
§10.21 Parties in General
§10.21(a) Enemy Parties
§10.21(b) Allied Parties
§10.22 Lay Witnesses
§10.23 Expert Witnesses
§10.23(a) Enemy Experts
§10.23(b) Allied Experts
§10.30 Tips for Timing and Positioning
Your Attack
§10.40 The Rules That You Need
§10.41 Federal Rules Pertaining to Depositions
§10.50 Scheduling and Taking the
Deposition
§10.51 The Skills of Direct Examination
§10.51(a) Client Preparation
§10.51(b) Tips for General Interrogation
§10.52 The Art of Cross-Examination [Direct Examination of Opponent]
§10.52(a) Cross-Examination Goals
§10.52(b) Critical Tips for an Effective Attack on the Deponent
§10.52(c) Quips and Tricks for Handling Difficult Deponents
§10.52(d) The Ten Commandments of Cross-Examination
§10.53 How to Combat Obnoxious Lawyers
§10.53(a) Generally Obnoxious Behavior
§10.53(b) Coaching During Interrogation
§10.53(c) Coaching Off-the-Record
§10.53(d) Obnoxious Objections
§10.60 Defending the Deposition
§10.61 Preparing and Defending Your Client
§10.61(a) Attacking the Notice of Deposition
§10.61(b) The Client Preparation Checklist
§10.61(c) Simulated Examination
§10.61(d) Attending the Deposition
§10.61(e) Terminating the Deposition
§10.61(f) Crash Course in Objection Warfare
§10.62 Preparing and Defending Your Expert
§10.70 Enforcement
§10.80 The Forms That You Need
Form 10.1 Notice of Deposition (Basic)
Form 10.2 Petition to Allow Deposition Prior to Commencement of Action to
Preserve and Perpetuate Testimony
Form 10.3 Notice of Deposition to Preserve and Perpetuate Testimony (Prior
to Commencement)
Form 10.4 Stipulations of Counsel Pertaining to Discovery Depositions
Form 10.5 Notice of Deposition (To a Business Entity, Agent Identified)
Form 10.6 Notice of Deposition (To a Business Entity, Agent Unidentified)
Form 10.7 Notice of Deposition (To Records Custodian)
Form 10.8 Notice of Deposition (Non-Stenographic)
Form 10.9 Petition to Allow Deposition Pending Appeal
Form 10.10 Motion for Deposition Pending Appeal
Form 10.11 Motion for Additional Deposition
Form 10.12 Application for Commission
Form 10.13 Commission
Form 10.14 Combined Discovery Request
Form 10.15 Notice of Deposition and Notice for Production of Documents
(Non-Party)
Form 10.16 Objections to Notice of Deposition
Form 10.17 Motion to Quash Deposition Subpoena
Form 10.18 Motion to Terminate Deposition
Form 10.19 Motion for Costs for Failure to Issue Deposition Subpoena
Form 10.20 Motion to Suppress Deposition
Form 10.21 Set-up Letter (Failure to Attend Depositions)
Form 10.22 Motion to Compel Deposition
Form 10.23 Motion to Compel Deposition Upon Oral Testimony
Form 10.24 Motion for Contempt Citation, Sanctions, and Dispositive Relief
Form 10.25 Response to Set-up Letter (Failure to Attend Depositions)
Form 10.26 Answer to Motion to Compel Deposition
Form 10.27 Answer to Motion for Sanctions and Dispositive Relief
CHAPTER 11. [Reserved]
CHAPTER 12. Defending and Responding in
General
§12.10 Strategy and Philosophy
§12.20 Strategic Compliance
§12.30 Strategic Non-Compliance
§12.40 Paths Of Non-Compliance
§12.41 Circumvention
§12.41(a) The Burial Technique
§12.41(b) The Conference Demand
§12.41(c) Turnaround Refusal of Requesting Party to Comply
§12.42 Objection
§12.43 Motion for Protective Order
§12.50 The Forms That You Need
Form 12.1 Your Dream Checklist
CHAPTER 13. Defending Discovery's Limits
§13.10 Threshold Defense Strategy
§13.20 The Scope of Discovery
§13.21 Discovery’s Outer Perimeters—Relevance Redefined
§13.22 Discovery’s Defined Limitations
§13.23 Boundary-Defense Checklist
§13.30 Inability To Comply
§13.31 Non-Existence of Subject Matter
§13.32 Lack of Control
§13.33 Lack of Knowledge
§13.34 Incoherent Request
§13.40 Jurisdictional Challenges
CHAPTER 14. Using The Work Product
Doctrine
§14.10 Basic Training
§14.11 Definition and Description
§14.12 Brief History
§14.20 The Basic Rules That You Need
§14.21 Federal Rule of Civil Procedure 26(b)
§14.22 The States’ Rules
§14.30 Instant Answer Chart
§14.31 Raw Facts, Legal Claims and Real Evidence
§14.32 Expert Witness Opinions
§14.33 Ordinary Work Product
§14.34 Expert Advisory Assistance
§14.35 Opinion Work Product
§14.36 Unwritten Work Product
§14.40 Weapon-by-Weapon Defense
§14.41 Defense to Requests for Admissions
§14.42 Defense to Interrogatories
§14.43 Defense to Notices For Production
§14.44 Defense to Demands For Inspection
§14.45 Defense to Demands For Examinations
§14.46 Defense to Depositions
§14.50 Waivers
§14.60 Counteroffensives
CHAPTER 15. Using Traditional Privileges
§15.10 Confidential Relationships in
General
§15.11 Professional Privileges
§15.11(a) Attorney-Client Privilege
§15.11(b) Physician-Patient Privilege
§15.11(c) Therapist-Patient Privilege
§15.11(d) Clergyman-Penitent Privilege
§15.11(e) Accountant-Client Privilege
§15.11(f) Journalist-News Source Privilege
§15.12 Business and Administrative Privileges
§15.12(a) Trade Secrets and Business Confidences
§15.12(b) Legislative Deliberative Privileges
§15.12(c) Self-Critical Analysis Privilege
§15.13 Domestic Privileges
§15.13(a) Confidential Marital Communications
§15.13(b) Marital Testimonial Privilege
§15.13(c) Parent-Child Privilege
§15.14 Criminal Privileges
§15.14(a) Privilege Against Self-Incrimination
§15.14(b) Informant’s Privilege
§15.20 The Work Product Doctrine
CHAPTER 16. Exposing Burdensome and
Abusive Tactics
§16.10 Abuse in General
§16.11 Ulterior Motives
§16.11(a) Blackmail
§16.11(b) Subterfuge
§16.11(c) Hostage Trade Off
§16.12 Interior Motives
§16.12(a) Aggressive Discovery
§16.12(b) Excessive Discovery
§16.20 Running for Cover
§16.21 Your Guiding Rules
§16.21(a) Step 1—Check for Certification-Rule Compliance
§16.21(b) Step 2—Apply For A Protective Order
§16.21(c) Step 3—Check Weapon-Specific Rules
§16.21(d) Step 4—Check Local Rules and Standing Orders
§16.22 Prepare Your Motion
INDEX
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