Clayton Diedrichs
Assistant US Attorney
THE AUSA’S PERSPECTIVE
OUTLINE
Litigation Reports
 Communicating
 The Claimant Interview
 Electronic Discovery
 Questions

LITIGATION REPORTS

Minimum Contents






Short Summary of Events
Claims History
Witness List
Draft Answer
Unique Issues
Attachments
Medical Records
 Letters to/from Plaintiff’s Counsel
 Final Denial/Offer

LITIGATION REPORTS

Factual Summary
 Short
statement of events and Plaintiff’s
allegations
 The
more information the better, but at least the bare
bones
Medical Chronology
 Assessment of Plaintiff’s allegations

 Refer
to Important Pages of Medical Records
 Hospital unique definitions or abbreviations
LITIGATION REPORTS

Claims History

Dates
Date Claim Accrued
 Date Claim Filed
 Date Claim Finally Denied/Final Offer



Negotiations
Your Insight
Plaintiff’s counsel
 Plaintiff
 Witnesses
 Case issues

LITIGATION REPORTS

Witness List
 Complete
List
 Status: Govt Employee; K’r; Resident
 Witnesses’ Involvement
 Current Location
 Can’t
Find them: let us know what was done because
the Court ask
 Let
the Witnesses Know We Will Be Calling
 FRCP 26(a) - Initial Disclosures at Front End
LITIGATION REPORTS

Draft Answer
 We
do use it
 General Denials
 Judicial Admissions
LITIGATION REPORTS

Unique Issues
 Inadvertent
QA Disclosures
 Uncommon Privileges
 e.g.
the Deliberative Process Privilege
 Witness
is going to Iraq in 2 months
 Plaintiff is Terminal
 Hospital SOP’s or Regulations
LITIGATION REPORTS

Attachments
 Medical
Records– This is where the $$ is.
 Entire
Record--AUSA will decide what they need
 Every page, film, picture, tracing, lab, scan, etc.
 PAD; Risk Management; Convenience File; Doctor’s
Personal Files; Each Clinic Involved
CHCS
Every
Scrap of paper:
Appointment logs; birth logs; Surg Logs; etc
LITIGATION REPORTS

Attachments
 Correspondence
 Offers
and Counter Offers
 Final Denial or Final Offer
 Contracts
COMMUNICATING

Rhythm of a Case
 Hear
from us early
 Long
periods with no communications
 Hear
from us more than you ever wanted
CLAIMANT INTERVIEW

Rule 408 of Federal Rules of Evidence


Paralegal present


You impeachment testimony waives attorney work
product
Fact memorandum


Make sure Plaintiff’s attorney understands it is not for
purposes of negotiation or settlement
Facts discoverable even in protected documents
Observation & Opinion Memorandum

Not discoverable
ELECTRONIC DISCOVERY
Federal Rules of Civil Procedure
- R 16
- R 26
- R 34
- R 37
- R 45
(ESI)
ESI

Duty of Preservation Falls Entirely on Agency
Counsel
 Should
commence when claim is filed
 Continuing duty to Preserve
ESI

4 Categories of ESI
 Electronic
 E-mail,
Communications and Transaction Info
voicemail, instant messaging, etc.
 Electronically
 Word
processing documents, spreadsheets, calendars
 Computer
databases
 Technical,
 System
created and stored business doc’s
scientific, financial, HR databases
and other internal Information
 Metadata,
database logs
ESI

ESI Storage Methods
 Online
Storage: hard drives, network servers, PDA
memory chips
 Near-Line Storage: connected to computer, e.g.
disks and tape libraries
 Offline Storage: Outside the computer network, e.g.
Floppies, Flash Drives, CD, DVD,
back-up tapes
ESI

Take an Inventory of Systems
 Systems
that might contain potentially discoverable
information
 General function of each such systems
 Location of the system
 Name of the custodian
 Whether there is routine or automatic deletion of
information, and if so, When
ESI

Duties & Obligations

R. 37(f): Preserve potentially relevant evidence
once you reasonably anticipate litigation


When claim is filed
Preserved in “Native” Form

Includes Metadata
Notify Witnesses, IT personnel, & Records Mngmt
 Identify & collect routine destruction policies
 Take possession of or arrange for preservation of
potentially relevant material


See R/ 26(b)(2)(B): prohibitively expensive or disruptive
ESI

Duties & Obligations (cont)
 Ensure
routine destruction practices are modified
to prevent inadvertent destruction
 Notify all custodians, IT, & Record Management of
case and their obligation to preserve information
 Periodic reminders
 Document your actions
 May
need to refresh your recollection on the witness
stand
ESI

Litigation Hold Notifications
 Directive
to information custodians to preserve
information
 Potentially discoverable
 Ensure auto-deletion is modified
 Preserved in ”Native” format
 Sufficiently describe subject matter to be preserved
 Have them acknowledge receipt of Lit. Hold Letter
 Notify them when need of Hold no longer exists
ESI

Subject to R. 26(a)(1)(B)
 Automatic
disclosure
 Early in litigation

Privilege
 Review
information for applicable privilege
 If privileged, must still preserve
ESI

Sanctions – R. 37(f)
 Safe
Harbor prevents sanctions when “good faith”
operations of electronic system causes information
to be lost
 Limited: doesn’t excuse failure to put in place a
timely Litigation Hold
 Spoliation motion still available to Plaintiff
 Sanctions allowed under “exceptional
circumstances” even when good faith is shown
QUESTIONS?