§26.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§26.8 STRATEGIC AND PRACTICAL CONSIDERATIONS

This section explores important issues that arise relating to the application of CR 26.

(1) Choice of forum—federal or state court

A plaintiff may have the option of filing in either federal or state court. A defendant also may have the option of state or federal court, if a case is filed in state court and is subject to removal jurisdiction. See Appendix A (Removal) of this deskbook. If you have the option of federal or state court, consider which forum may be most effective in conducting discovery. Be aware that local rules may have some effect on discovery in a given case.

(a)Discovery obligations and limits in federal court

The federal rules governing discovery impose affirmative disclosure obligations on parties, limit the scope of discovery to claims or defenses pleaded in the action, and limit use of interrogatories and depositions. These obligations and limitations should be evaluated in choosing your forum.

(b)Territorial reach of compulsory process in federal versus state court

In cases filed in federal court, subpoena power is nationwide. Counsel can issue deposition subpoenas for any federal district without the assistance of the district court in which the case is filed. In contrast, the discovery subpoena power in a state court action is limited to Washington's borders. An attorney needing to conduct out-of-state depositions in a state court action will require assistance from the court, in the form of issuance of letters rogatory or a commission to conduct an out-of-state deposition. This can be a cumbersome and expensive procedure.

(c)The court's participation in the discovery process

Because of readily available resources, staff support, and more manageable case loads, federal judges tend to be more active in the discovery process. This can include controlling the scope of discovery, limitations on discovery, timing of discovery, and resolving discovery disputes. Particularly in counties with heavy case loads, state court judges are generally not as actively involved in the discovery process. The need for cooperation among counsel in state court cases is a factor to consider.

In federal court, the court will be more directly involved in the discovery process given the limits imposed on the scope of discovery under amended FED. R. CIV P. 26(b)(1). With discovery now limited only to matters pertaining to the claims and defenses asserted by the parties, the district court must approve any discovery into the subject matter identified in the pleadings, absent a stipulation by the parties. Court-approved discovery requires a showing of good cause.

FED. R. CIV P. 37 affords additional protection to aparty seeking discovery and drastic consequences for a party that does not fulfill discovery obligations. The rule now provides for automatic exclusion of evidence at trial, on amotion, or at a hearing if not disclosed per FED. R. CIV P. 26(a) (initial disclosures), FED. R. CIV P. 26(e)(1) (supplemental responses), or FED. R. CIV P. 26(e)(2) (amendment of a prior response). FED. R. CIV P. 37(c)(1) also provides that the court may employ, as an additional sanction for a discovery violation, an instruction to the jury reporting the opposing party's failure to make discovery disclosures.

(2)Planning a discovery program; maintaining control of discovery; special masters

At the outset of litigation, you should have in mind the legal principles and authority that support (1) your client's position in the litigation and (2) the opponent's position in the litigation. Early familiarity with relevant legal authority will provide the necessary direction for the discovery program. For example, if your legal research indicates that legal theories are available for a summary judgment or other dispositive motion, you should design your discovery program to develop those facts that will support the motion. Conduct discovery with specific goals in mind. It should not be a rote exercise.

(a)Form interrogatories

Certain cases lend themselves to the use of form interrogatories, e.g., dissolution actions and automobile accident cases. The use of form interrogatories, however, is inappropriate if they do not seek information that is legitimately required for the preparation of a party's case. Form interrogatories should not be used as a tactical device intended only to overwhelm the opposing party or to increase that party's costs in litigation.

Notwithstanding the above, there are four discovery requests that are appropriate in almost every case:

(1)identification of persons who have knowledge of any facts or discoverable matters relevant to the lawsuit;

(2)identification of any documents that have been withheld on grounds of attorney-client privilege or work product protection, or for other reason;

(3)identification of experts expected to be called at trial; and

(4)identification of persons who participated in or provided responses to the interrogatories or requests for production.

(b) Discovery plans

If a case involves multiple parties, substantial document or deposition discovery, or otherwise will require a substantial amount of case management, consider proposing a discovery plan under CR 26(f) early in the litigation. Some of the items that may be addressed in a CR 26(f) discovery plan or discovery order include the following:

(1)setting time limits when certain actions are to commence or be completed;

(2)sequencing the discovery. For example, first determine the types and locations of documents and other physical evidence and the identity and location of witnesses to be examined;

(3)sequencingfor particular types of discovery, including ESI;

(4)discovery into certain subject matters, particular time periods, or geographical areas to be given priority;

(5)discovery scope and procedures for ESI;

(6)limits on quantity of discovery;

(7)stipulations under CR 29 regarding locations, times, notices, timing, and procedures. See Chapter 29.9 (Rule 29. Stipulations Regarding Discovery Procedure) of this deskbook;

(8)joint discovery requests and responses in multiparty cases;

(9)methods to resolve discovery disputes;

(10)sanctions;

(11)privileges and other confidential information;

(12)protective orders;

(13)identification, preservation, and storage of documents;

(14)scheduling of expert witness depositions;

(15)filing and service requirements;

(16)deposition rules and guidelines;

(17)bifurcation of the discovery in the liability and damages aspects of the case;

(18)guidelines for the handling of objections to discovery requests, in camera inspection, and voluminous documents;

(19)appointment of a special master. See Chapter 53.3. (Rule 53.3. Appointment of Masters in Discovery Matters) of this deskbook;

(20)telephonic court hearings on minor matters; and

(21)use of a document numbering system.

(c) Use of discovery masters

Although CR 26(f) provides a means to ameliorate discovery issues and problems in complex cases, a case may be so complex and protracted as to require the appointment of a master for discovery issues. CR 53.3 allows the court to appoint a discovery master on a showing of good cause, either on a party's motion or the court's own motion. The master must be a member of the Washington State Bar. Among other powers, a master can preside at depositions and make rulings on issues arising during a deposition.

In appropriate cases, a special master can be very effective in supervising and regulating discovery. This is particularly true in cases involving numerous discovery motions, voluminous documents, or extensive depositions. A special master can usually render decisions more quickly than a trial court. Some of the matters that can be referred to a special master include the following:

(1)motions seeking to compel discovery or resolve requests for admission;

(2)objections/privileges asserted during depositions. Aspecial master may be available in person or by telephone to rule on objections during the course of a deposition. This can be extremely valuable when depositions are taken at places distant from the forum court;

(3)resolution of claims of privilege, work product, or trade secret as to documents or other information that are the subject of discovery requests. A special master would be able to devote time to reviewing those documents in camera;

(4)consideration and imposition of appropriate protective orders; and

(5)assistance in determining what facts are undisputed and can be admitted by appropriate agreement or stipulation, thereby reducing the issues to be resolved at trial.

Before seeking appointment of a special master, weigh carefully the pros and cons of such an appointment. Although the appointment of a special master has its advantages, it also has its disadvantages. Use of a special master can be an expensive proposition; the additional fees and costs for a special master are normally borne by the parties. And because a dispute resolution mechanism is readily available, the appointment of a special master may also open the floodgates to discovery disputes, increasing the number of unnecessary motions and objections pertaining to discovery. See Chapter 53.3. (Rule 53.3. Appointment of Masters in Discovery Matters) of this deskbook.

(3)Protecting work product

Carefully consider the extent to which you will use work product materials. For example, work product material used to prepare witnesses for deposition may lose its protection by operation of ER 612. Work product material provided to a trial expert may also become discoverable under CR 26(b)(5), to the extent the expert used the material or relied upon the material in developing opinions.

Computer compilations and databases generated from raw data acquired in the course of discovery are likely to be deemed protected work product. Such computer...