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Lifecycle of a Case, Phase 5: Discovery · Coopers' Code

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  Howdy and welcome to another episode of Coopers Code Life
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  cycle of a case series where we provide tools and tactics for
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  the different phases of a case. We're compiling all of these
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  episodes into a playlist on our YouTube channel, so head on over
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  there if you want to see them all.
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  Our third section is pre litigation.
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  That's where we do our best document assembly, getting a lot
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  of that information early on to the insurance company and being
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  open and transparent with the insurance company about what
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  this case involves so that they can help get a better sense of
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  things. On the collectability side, we
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  send over a letter of representation.
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  It has an injury bullet point. It will immediately demand the
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  defendant's insurance policy limits.
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  We typically will do a full demand package to send over to
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  the defense adjuster before we file suit.
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  That's the opportunity to file the complaint and make sure that
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  the other side is actually formally brought into a lawsuit
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  and into litigation. The next phase in terms of
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  discovery I'd considered putting before filing suit.
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  Why did I consider that? I considered doing it because
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  one of the things we strive to do with the firm is to have our
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  proactive discovery drafted before we file suit.
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  Why do we do that? Because we will often times
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  serve our discovery hand serve our discovery on the defendant
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  in a short a window after we filed the complaint as possible.
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  And we do that for a couple of reasons.
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  One is the defense almost always will serve their answer with a
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  big pile of discovery and a deposition notice.
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  And they will claim that they get preference because they sent
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  their deposition notice out first.
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  So that's that's one reason it allows us to get our notices of
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  DEPO, our request for reduction or request for admission or
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  interrogatories or personal most knowledgeable depositions.
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  All of those get sent out so that we can claim preference.
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  And it also sends a further message which is this firm is on
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  their toes. They are going to be pushing
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  this litigation, not reacting to this litigation.
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  And that's the way plaintiffs lawyers want to be as they're
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  going through a case. On the discovery front, there
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  are a number of different tools. There are interrogatories.
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  Interrogatories are formal questions, the the most common
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  being form interrogatories. The form interrogatories are
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  just simple check boxes and you get a bunch of data about the
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  other side. They're also special
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  interrogatories. These are subjects in California
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  to the Rule of 35, which means you can only ask 35
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  interrogatories, special interrogatories without doing a
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  declaration for additional discoveries saying why this case
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  is unique or special or different and why it should have
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  more than 35. I will say while lots of people
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  do contention interrogatories and and other special
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  interrogatories, I find a lot of the written discovery short of
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  document production. A lot of the written discovery
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  is an area where defense can build a ton and it otherwise is
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  time consuming and not particularly illustrative for
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  the plaintiff. So I am not a huge proponent of
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  special interrogatories. I I do love requests for
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  production. I do love requests for
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  admission. Now the the requests for
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  admission also are subject to the rule of 35, meaning you can
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  only do 35 without a declaration for additional discovery.
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  When you serve them with form interrogatories, there's a
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  little box 17.1 that you can check, which is if the answer to
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  any of these requests for admissions served with this form
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  interrogatory set, is there anything other than admit?
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  Then you have to provide a bunch of information in response to
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  all of these. So Rfas are a great tool to, in
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  essence, get what you need from special interrogatories where
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  you admit that you were liable for this collision, admit that
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  you were negligent in causing this collision, admit that our
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  client was not comparatively negligent.
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  I understand that the language is very loose this it would be
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  more specific in our RFA, but these general areas can be very,
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  very helpful. Because you'll usually get
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  denials. When they deny it, they have to
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  provide a bunch of information to explain why they deny it.
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  If you prevail at trial over things that they should have
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  admitted, then one is entitled to request for admission
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  sanctions. What that means is you're
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  entitled to the attorneys fees for the time that you needed to
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  prove these facts and for the additional costs that you needed
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  to prove these facts. So this is a great way in what
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  should be a clear liability case where they deny it to get
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  competence further compensation at the end of the trial for all
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  the unnecessary time you had to put in to proving that they were
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  liable case. So we generally use the Rfas to
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  tamp down and try and clarify the issues and then set a marker
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  to be able to beat when we go to trial and, and get when we go to
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  trial and prove that they were in fact liable for the
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  collision. Requests for production are all
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  the documents that you have not already been able to get in any
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  other way throughout the course of the case.
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  So we usually will demand the full policy language of
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  insurance policies and we do it across the board.
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  Why do I do that? Even in cases where the
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  insurance policy should not be of interest, I'll use we we
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  always learn from our examples past mistakes.
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  I had a case years ago that seemed like a straightforward
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  industrial incident. I had a guy whose leg got taken
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  off in a rice dryer. The facility had been routinely
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  inspected under contract by a safety company and we demanded
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  the safety company's $1,000,000 policy under 998 as we it had
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  been disclosed that it was $1,000,000 policy.
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  Well, when we later on in the case are fighting over things,
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  we are told that that was a diminishing limits policy,
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  meaning was a million to start. The cost of defense got eaten
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  from the policy. So at the time that we had made
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  our 998, it was not a million, there's only $992,000 available.
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  Therefore our 998 was invalid. Now a lot of technical arguments
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  about why that was or was not accurate.
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  Ultimately things ended up working out well in that case,
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  but the learning for me was even when I think the the insurance
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  policy is a straightforward policy, we want to see the
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  policy language. So we we demand the insurance
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  policy. And then depending on the case,
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  most firms will have what I would consider to be templated
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  for these types of categories of documents.
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  In these types of cases, you want to make sure that you can
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  gather pretty much everything under the sun that you think
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  might be used against you and that you might be able to
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  benefit from in the case. Unfortunately, discovery is an
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  area where the defense has learned from the state courts
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  that it benefits from hiding the ball initially.
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  Does this happen with every defense counsel or every
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  defendant? It does not.
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  However, a common tactic is to provide crappy responses and a
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  handful of documents in response to a request for production, and
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  it then becomes a battle of meeting and conferring,
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  demanding more, and moving to compel.
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  I've talked to some defense lawyers who will say that
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  they're a client, and I want to be clear who, who, and how I'm
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  talking about people. Defense lawyers aren't always
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  the ones who are doing things that we sometimes infer as bad
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  behavior often times is they're they're doing it at the client's
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  direction and there are some defendants who just their stock
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  in trade, particularly in product cases is we don't give
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  any documents not anything meaningful until we get the
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  first motion to compel and the learning there is part of the
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  work in the more complex cases products harder things is you
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  aren't going to get stuff until you move to compel.
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  The reason this exists by the way, it it not surprisingly,
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  it's much rarer in federal court.
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  It's rare in federal court because federal judges will
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  sanction the ever living shit out of you when they feel the
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  games are being played. But in the state court the the
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  sanctions tend to be fairly minimal.
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  It's a rounding error for most defendants.
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  So why not make it really hard? Why not see if this particular
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  plaintiffs lawyer is going to do their work for their client and
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  why not just keep pushing back with the hopes that somebody's
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  going to be lazy on the other side?
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  So it's not the way things are supposed to be done, but it is
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  the way things that happen. If you get into litigation and
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  you're dealing with defendants who are challenging you got to
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  do your job. That involves doing the hard
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  work of of moving to compel. A side note, there are often
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  times creative ways to get the same information.
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  We talked a little bit about Public Records Act requests and
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  about Freedom of Information Act requests.
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  I'll use an example of being creative.
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  We had a construction company that was shining us on about
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  getting the contract and subcontract for a major
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  construction project. As we thought through it, we
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  recognized that the construction contract was for an expansion
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  and the subcontractor contract was for an expansion at the San
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  Francisco International Airport. The what that meant was we don't
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  need to get it from them. We can get it from the city and
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  county of San Francisco. So not only were we able to get
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  the contract with the general, we were able to get the contract
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  between the general and the sub because that had to submit that
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  as part of the package to the city.
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  So we got that through a PRA where the the defense has no
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  idea that we have it. And then we start asking
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  questions at APM gate opposition with it.
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  And the defense counsel is caught a little bit with their
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  pants down in terms of preparing their witness because they had
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  no idea that we were able to get the things that they were hiding
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  from us. So when you think you're being
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  shined on, just think about other creative ways to get the
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  same information. As far as depositions are
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  concerned, there are a variety of thoughts on how to take
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  depositions and and how to structure depositions.
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  A few comments from from my perspective in terms of of
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  depositions, what this part is not controversial at all.
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  We like to do all of our written discovery well before we take
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  depositions. We're going to take the best
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  depositions possible, particularly of what are known
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  as person's most knowledgeable or person's most qualified or
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  designated agents, whatever you want to call them.
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  We'll take the best depos of those people when we have the
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  documents about policies, procedures, protocols, the
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  incident investigations, etcetera.
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  So getting ready for those depos involves getting all that
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  material packaged so that one can ask over here questions
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  related to them. There may be strategy involved
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  in terms of who goes first. Do you want to take the the fact
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  witnesses before you take a designated agent?
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  That's that's one area where it's not always ironclad that
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  you want to do it one way or another.
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  Another thing that comes up that different people have different
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  approaches to is that there will be individuals who oftentimes
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  will have their own personal knowledge and there will be a
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  person most knowledgeable. So you might have John Doe.
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  John Doe is the project manager who was on site at the time that
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  Peter Plaintiff got hurt. He was the one who responded the
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  incident. He documented the incident.
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  So John Doe, the construction manager is going to have
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  personal knowledge. He is also the project manager
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  and will be the designated agent.
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  A lot of times you'll get the defense will say, well, we're
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  we're going to produce some. We'd like you to take just one
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  deposition and with that one deposition, cover all the facts
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  in his individual capacity. And also as the person of most
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  knowledgeable, there are people who prefer to take those as two,
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  and there can be a benefit to that one can be it gives you
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  time to to go back, take a second depo and be more if
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  you've forgotten every anything or as you review it, it
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  simulates questions you ask for further discovery to do that can
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  be beneficial in that regard. There's a flip side benefit of
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  taking them together. And the flip side benefit is
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  sometimes you will have people who will be clever in terms of
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  saying, well, this is something I did in my individual capacity,
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  but not on behalf of the company.
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  And if you want that the testimony of that person to bind
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  the company in all things, it can be helpful to have both of
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  those depositions, fact and PMK in the same depot.
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  And, and the admonition that goes along with this is, Mr.
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  Doe, you're being produced here both in your individual capacity
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  and as APMK. The way I'm going to proceed
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  with this is I'm going to presume that anything that
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  you're testifying to is as APMK, unless you tell me to the
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  contrary, that, ah, for this one thing here that I'm testifying
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  about, that's in my individual capacity.
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  And then Mr. Doe forgets the admonition goes through the
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  entire deposition and everything that Mister Doe says is a, a
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  binding act as the PMK for the, the defender.
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  So again, different ways to approach the depositions.
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  Also within the frame of what I would call discovery is summary
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  judgment. And I say it's within the frame
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  of discoveries because at some point during the case, usually
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  in the discovery phase, meaning before expert disclosure, before
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  trial, there are cases where the defense will seek to move for
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  summary judgment. There are pros and cons related
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  to summary judgment. One of the pros is that nothing
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  gets one ready for trial the way summary judgment does.
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  It forces one to dig into the case.
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  It forces one to be proactive in taking depositions well before
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  the eve of trial or expert disclosure.
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  It it's a wonderful opportunity to to really dig in.
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  It's also exceedingly time consuming.
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  But I I think of it as a gift when the defense sends us a
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  motion for somebody judgement. So when one arrives, recognize
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  it for what it is, which is a way to hold your feet to the
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  fire and to double down on your diligence in terms of being
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  ready for trial. Thank you for tuning in.
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