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The Process of Conducting Discovery
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Added on 2019-09-30
The Process of Conducting Discovery
Added on 2019-09-30
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MEMORANDUMTO:LWR LLMC Students FROM:Senior Partner Gail GreeneRE:Dr. Anna Liu: Brand v. Refresh Medical Spa, File No. 5928, Possible Summary Judgment Motion DATE:October 10, 2016General Information about the Case and General AssignmentWe represent Dr. Anna Liu in the case of Brand v. Refresh Medical Spa. Nicolette Brand filed a personal injury complaint against Refresh Medical Spa, Dr. Golden, Dr. Liu (our client), and other individuals. She alleges that a tracheotomy that was performed on her was not necessary and was improperly completed, resulting in permanent scarring on her neck. Our law firm, Greene & Jin, has answered the complaint on behalf of Dr. Liu, andwe are in the process of conducting discovery. Discovery consists of sending out document requests, form interrogatories, and special interrogatories to the opposing party. Discovery also may involve taking deposition testimony and accepting declarations. I have included some of the discovery that has been completed so far to provide you with the basic facts. Our firm is considering filing a summary judgment motion against Ms. Brand in order to have Dr. Liu dismissed as a defendant. A summary judgment is a final decision by a judge that resolves a lawsuit in favor of one of the parties. The motion is made after discovery is completed but before the case goes to trial. The summary judgment motion can only be made if the moving party does not dispute the facts as stated by the opposing party or posits that the facts do not matter because the issue can be decided as a matter of law. Based on our understanding of the law, we think that Dr. Liu is immune from liability under the California Good Samaritan statutes.In order to be successful on the motion, we would need to argue that, based on theundisputed factual evidence, the fact finder could only decide the case one way. I want you to research the law and then prepare a Memorandum of Points and Authorities (P’s & A’s) that would accompany a summary judgment motion. The P’s & A’s willargue that Dr. Liu is immune from liability under the Good Samaritan statutes.Specific Assignments (Research, Research Log & List, Outline, and P’s & A’s)First, I want you to research how the Good Samaritan statutes apply to physicians like Dr.Liu. I want you to work off my Research Plan, and prepare a Research Log (including a Research List of Primary Authority and a description of all the steps you took to finalize that list), and later an Outline of your analysis. I want to see the List, Log, and Outline before you begin writing your P’s & A’s. 1
To recap, I will want you to complete the following in the remaining few weeks: Review the documents provided to you and, using my Research Plan, identify an issue statement, jurisdiction identification, and TARP terms for the research. Conduct your Research using the steps laid out in the Research Plan below. As you research, keep a Research Log of the sources you consulted, the steps you took to research, and the statutes and cases that you found. Be over-inclusive. If you are not sure whether you will end up using the statute or case, you should nevertheless include it.If you run into dead-ends, include that information as well. The steps in your research should match the numbers of the steps in the Plan.As you research, take notes of other references (secondary authorities such as encyclopedias, ALR articles, keynote numbers, and primary authorities such as statutes and cases. Include this information in your Log. This is the “KFC” notes.At the end of the Log write a short paragraph telling me whether your research plan worked or not.Finally, prepare a Research List that identifies all the cases and statutes you found that you think would be needed to argue this motion. As noted above, be over inclusive at this point. Email to me your List and Log (including paragraph of reflection) by Tuesday, October 18, by 10:00 p.m. at ggreene@sandiego.edu.Once the Research List is approved, you will prepare an Outline of your P’s and A’s (and a Case-Synthesis Chart –recommended but not required).Once your Outline is approved, you will prepare the Memorandum of Points & Authorities in support of the summary judgment motion.You are welcome to conference with me on your draft before you turn it in.2
Specific Information on the Plan, List, and LogResearch Plan and Research ItselfI will provide you with the Research Plan needed for comprehensive research. I recommend you also look through Nedzel chapters 5-6 and your class notes on researching, including all handouts. I strongly recommend reviewing the LRC videos. Read the Deposition transcript and Declaration and get familiar with the facts and details of the case.1.Develop an initial issue statement to focus your research.2. Identify the jurisdiction.3.TARP – generate a list of relevant search terms.Follow the Research Plan designed to locate the mandatory authority you will need. Research Plan First, consult secondary sources for background information and to access citations. Remember that you can execute searches either by typing in a global search, limiting the jurisdiction to California, and then selecting resource options from the menu on the left. Or you can first select the resource, then search, then filter by jurisdiction (and other filters). Either route is fine with me, but be sure to indicate in your Log how you searched. List the steps. Below are reminders on how to access the information, using a Global Type Search.4.EncyclopediasChoose one service in which to conduct this research. If researching on Westlaw, typeyour search term in the search box and use the drop-down menu to select the correct jurisdiction for a California case. When the results appear, choose “Secondary Sources” from the left side of the screen. Review the possibilities for filtering your secondary source results on the left side of the screen. Select California again as your jurisdiction. Look for a California encyclopedia (either Cal. Jur or Witkin) under “Publication Name,”select it, and click “Apply Filters.” [As mentioned above, you could also go straight to the Encyclopedia by pre-filtering: type the name of the source in the search box or by selecting a type of source to begin with.] Once you have read and taken notes from the first encyclopedia, then look up and review the second encyclopedia.If searching on Lexis Advance, type your search term in the main search box and use the drop-down filters to select the correct jurisdiction for a California case. Then click “Search.” When the results appear, select “Secondary Materials” on the left side of your results screen. Scroll to the Category section to find a reference to a California encyclopedia. Select the appropriate category, and review the results for relevant material. [Here too you could also search by source.] 3
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