What better setting for a presentation on legal discovery than a federal courtroom, delivered by a federal judge to law students sitting in the jury box and counsel’s tables?
Professor Bill Slomanson’s Federal Civil Procedure class met April 3, in the courtroom of U.S. District Judge Anthony Battaglia, who is a law school classmate of “Pro-Slo’s.”
One of the most important civil procedures is discovery and according to Judge Battaglia, it’s often much more difficult and contentious than it’s supposed to be. “Everybody makes discovery a major battleground,” he said. “It shouldn’t be that way.”
Judge Battaglia’s presentation, appropriately enough, was “Surviving Discovery.” He covered the core concepts of discovery and disclosure, including his Top 10 Survival Tips for discovery. (See Judge Battagila's PowerPoint Presentation)
Rule number one? Don’t Forget Rule # 1. That is, under federal rules (Fed. R Civ. P.1.,) “They (The Rules) shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.”
In other words, get it done and play by the rules.
To Judge Battaglia, that means Plan and Preserve Early (Rule 2.) One method he recommends is to use the case’s jury instructions as a roadmap for the elements you must use to prove your case and then plan your discovery accordingly. Which leads to Rule 3: Meet and Confer Like You Mean It. “A face to face meeting is very important,” he said. “Not meeting can result in monetary sanctions against the attorneys, and it must be reported to the California Bar. Who needs that?”
Another part of Rule 3 is to “seek only what you really need, so you don’t get mired in too many records.” Also, with the sheer amount of electronic files (ESI) nowadays, it can get quite expensive. Rule 4 is to Be A Rules Geek. That means know the rules of discovery and disclosure forward and backward, including the local rules of the district in which the case is being heard. Skipping ahead to Rule 6, it’s Be Careful What You Ask For, which is not asking for too much or too little, and getting it in the right format. Electronic files can be so voluminous that they equate to dozens of boxes of paper files.
“You are not an island to yourself,” Judge Battaglia said in explaining Rule 5: Remember, You Are Not Alone. “The team approach works really well, so involve key people in your firm as well as the client.”
When it comes to setting deadlines for producing discovery, Rule 7 stipulates: Check Before You Speak. “Make sure a deadline is feasible before you commit to it,” said Judge Battaglia. He adds that it’s better to get permission in advance, if there’s a problem, than to ask forgiveness later. And that’s Rule 8: Better To Ask For Permission Than Forgiveness.
Rule 9 is See the Forest For The Trees. “Discovery is not the end game, “said the judge. “Focus on what you really need, and consider sampling some of the documents first before you ask for everything. And realize that sometimes ‘no’ is a good answer.”
Finally, Rule 10 is Don’t Use Sound Bites, which means if you say something to opposing counsel or the court like the discovery material is “not reasonably accessible,” the court will want to know a lot more than just that simple explanation.
According to Professor Slomanson, Judge Battaglia's lectures to his students have become a tradition.
"The TJSL faculty prides itself on providing extracurricular legal education opportunities," said Professor Slomanson. "Judge Battaglia's presentations to TJSL students each semester provides a significant intellectual spark to that objective. We are incredibly fortunate to benefit from his continuing efforts to assist us in our quest to make our students more practice ready."
The presentation was very wise counsel, from an experienced jurist, delivered in the perfect setting.