chapter i - history and purpose of discovery
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LEGAL DISCOVERY C.E.I.S. 12360 U.S. Hwy. 19, Hudson, FL. 34667 TABLE OF CONTENTS i CHAPTER I - HISTORY AND PURPOSE OF DISCOVERY ...............................................................................1 DEFINITION ............................................................................................................................................................1 CONTRAST WITH CONTINENTAL SYSTEM .....................................................................................................1 THE ADVERSARY SYSTEM .................................................................................................................................3 PRESENTING EVIDENCE BY ADVERSARIAL PARTIES ..................................................................................3 THE EQUALITY CONUNDRUM ........................................................................................................................5 A NEUTRAL ADJUDICATOR .............................................................................................................................5 CASE MANAGEMENT................................................................................................................................................... 6 RULES AND ETHICS FOR THE LAWYERS .......................................................................................................6 RELATIONSHIP BETWEEN DISCOVERY AND THE LITIGATION PROCESS ................................................8 SETTLEMENT .....................................................................................................................................................9 VOLUNTARY EXCHANGE OF INFORMATION .............................................................................................. 11 COMPULSORY DISCOVERY ........................................................................................................................... 13 CHAPTER II - WIDTH AND BREADTH OF DISCOVERY............................................................................... 17 THE RISE OF DISCOVERY .................................................................................................................................. 17 MOST OFTEN USED DISCOVERY DEVICES ........................................................................................................... 17 DISCOVERY MUST BE RELEVANT ................................................................................................................. 18 RELEVANCE ..................................................................................................................................................... 20 RELEVANCE VS. BURDEN .............................................................................................................................. 22 PRIVILEGE........................................................................................................................................................ 24 CHAPTER III - DEPOSITION IN GENERAL ...................................................................................................... 28 A LOOK AT BASIC DEPOSITION PROCEDURES ............................................................................................ 28 NOTICE OF DEPOSITION ............................................................................................................................... 28 NON-EXPERT WITNESS FEES ................................................................................................................................... 29 RESCHEDULING .......................................................................................................................................................... 30 DON’T WANT TO ......................................................................................................................................................... 30 DURATION.................................................................................................................................................................... 30 WHO ATTENDS A DEPOSITION ................................................................................................................................ 31 EXPERT WITNESS AT DEPOSITIONS ...................................................................................................................... 32 WHY SHOULD THE LAWYERS BE PRESENT? ....................................................................................................... 32 ATTORNEY FOR NON-PARTY WITNESS?............................................................................................................... 33 OTHERS ATTENDING A DEPOSITION ..................................................................................................................... 34 The Court Reporter .................................................................................................................................................... 34 Judges ........................................................................................................................................................................ 34 Friend or Relative ...................................................................................................................................................... 34 Others ........................................................................................................................................................................ 35 BRINGING OTHER STUFF .......................................................................................................................................... 35 FINAL REVIEW ............................................................................................................................................................ 35 PREPARE TO BE DEPOSED ................................................................................................................................ 36 REPRESENTED BY A LAWYER................................................................................................................................. 36 MEETING BEFORE THE DEPOSITION ..................................................................................................................... 37 DOCUMENTS ................................................................................................................................................................ 37 “PRO SE” LITIGANTS .................................................................................................................................................. 38 NON-PARTY WITNESSES ........................................................................................................................................... 38 SUBPOENA DUCES TECUM....................................................................................................................................... 39 ‘WHO CARES” WITNESS ............................................................................................................................................ 39 INTERESTED NON-PARTY WITNESS ...................................................................................................................... 40 NON-PARTIES WHO MAY BECOME PARTIES ....................................................................................................... 40 CHAPTER IV - VIDEOTAPED DEPOSITIONS .................................................................................................. 44 RULES................................................................................................................................................................ 44 Authorizing ................................................................................................................................................................ 44 Techniques ................................................................................................................................................................. 45 Statements for the Record Requirement .................................................................................................................... 45 ii WHY VIDEOTAPE? ........................................................................................................................................... 45 To Perpetuate a Friendly Witness’s Testimony ......................................................................................................... 45 An Adverse Witness’s Testimony.............................................................................................................................. 46 DISADVANTAGES OF VIDEOTAPING ........................................................................................................... 46 Tips for Taking a Videotape ...................................................................................................................................... 47 Clothes Make the Man (or Woman) .......................................................................................................................... 47 Value of Production ................................................................................................................................................... 47 Editing ....................................................................................................................................................................... 48 IMPROPER USE OF THE VIDEOTAPE .......................................................................................................... 48 CHAPTER V - USING DEPOSITIONS .................................................................................................................. 51 BEFORE TRIAL .................................................................................................................................................... 51 SUMMARY JUDGMENT MOTION ................................................................................................................... 51 SETTLEMENT DISCUSSIONS .......................................................................................................................... 52 TRIAL STRATEGY ............................................................................................................................................. 54 WITNESS PREPARATION ........................................................................................................................................... 55 DEPOSITIONS USED AT TRIAL ......................................................................................................................... 55 SUBSTITUTE FOR TESTIMONY ................................................................................................................................ 55 TO IMPEACH A WITNESS ................................................................................................................................ 56 REFRESH A WITNESSES RECOLLECTION OF EVENTS ....................................................................................... 58 RESPONDING TO QUESTIONS ....................................................................................................................... 58 LISTEN TO THE QUESTI0N ........................................................................................................................................ 59 TRUTHFUL AND COMPLETE .................................................................................................................................... 60 OH-OH ........................................................................................................................................................................... 62 UNDERSTAND THE QUESTION ................................................................................................................................ 62 THE GUY’S A JERK ANYWAY .................................................................................................................................. 62 GOOD IMPRESSIONS ...................................................................................................................................... 63 CHAPTER VI – ANTICIPATED QUESTIONS .................................................................................................... 66 QUESTIONS OFTEN ASKED BY THE DEPOSING ATTORNEY ..................................................................... 66 Question: Did you meet with the (other) lawyer? ..................................................................................................... 66 Question: Who else have you discussed this case with? ........................................................................................... 67 Question: What documents did you review in preparation for this trial? .................................................................. 67 TRICK QUESTIONS ..................................................................................................................................................... 67 QUESTIONS WITH NOT-SO-APPARENT ASSERTIONS ......................................................................................... 68 PLEASE ANSWER YES OR NO .................................................................................................................................. 69 SUMMARY QUESTIONS ............................................................................................................................................. 70 ARGUMENTATIVE QUESTIONS ............................................................................................................................... 71 THE FAMOUS “IS THAT ALL” QUESTION .............................................................................................................. 73 “FOLLOW ME” QUESTIONS ...................................................................................................................................... 73 JUMPING AROUND ..................................................................................................................................................... 75 GENERAL BACKGROUND QUESTIONING ............................................................................................................. 75 CHAPTER VII - REQUESTING OTHER ACTION, ADMONITIONS & BACKGROUND ........................... 79 REQUESTING OTHER DOCUMENTS/ACTIONS ............................................................................................. 79 ADMONITIONS .................................................................................................................................................... 80 BACKGROUND QUESTIONS ..................................................................................................................................... 84 Employment............................................................................................................................................................... 84 Education ................................................................................................................................................................... 85 Other Background Questions ..................................................................................................................................... 85 CHAPTER VIII - PRIVILEGED COMMUNICATIONS ..................................................................................... 88 THE PROTECTION OF “PRIVILEGE” ........................................................................................................... 88 BASIC PRIVILEGED COMMUNICATIONS ..................................................................................................... 88 WAIVING THE PRIVILEGE ACCIDENTALLY ......................................................................................................... 90 OTHER EXCEPTIONS TO ATTORNEY-CLIENT PRIVILEGE ................................................................................. 90 Seeking legal advice so as to perpetrate a crime or fraud. ......................................................................................... 90 Attorney-client lawsuits ............................................................................................................................................. 90 Joint Clients ............................................................................................................................................................... 90 iii Joint-defense privilege ............................................................................................................................................... 90 Spousal Communications .......................................................................................................................................... 90 Penitential communication ........................................................................................................................................ 91 Physician-patient communication .............................................................................................................................. 91 Psychotherapist-patient communications ................................................................................................................... 92 Others privileged relationships .................................................................................................................................. 92 CLAIMING PRIVILEGE ............................................................................................................................................... 92 WORK PRODUCT OBJECTIONS ..................................................................................................................... 92 FIFTH AMENDMENT PRIVILEGE .................................................................................................................. 95 PRIVATE INFORMATION ........................................................................................................................................... 95 CHAPTER IX - EXPERT WITNESSES ................................................................................................................. 99 DEFINITION ............................................................................................................................................................. 99 PERSONAL KNOWLEDGE ........................................................................................................................................ 100 EXPERT OPINIONS .................................................................................................................................................... 101 RELIABILITY OF EXPERT TESTIMONY ................................................................................................................ 102 FEES FOR EXPERT WITNESSES ................................................................................................................... 103 NON-RETAINED EXPERTS COMPENSATION....................................................................................................... 104 DISCLOSURES PRIOR TO DEPOSITION ..................................................................................................... 105 DEPONENTS NON-TESTIFYING HEALTHCARE PROFESSIONALS .................................................................. 106 PRE-DEPOSITION INVOLVEMENT ......................................................................................................................... 106 PLANNING AND PREPARATION OF EXPERT WITNESSES ....................................................................... 108 Pre-Deposition Planning Meeting ............................................................................................................................ 108 EXPERT WITNESS DEPOSITION FORMAT .................................................................................................... 109 AT THE BEGINNING ................................................................................................................................................. 109 Admonitions ............................................................................................................................................................ 109 Documents ............................................................................................................................................................... 109 Background.............................................................................................................................................................. 110 NOW IS THE TIME TO BLOW YOUR OWN HORN ............................................................................................... 111 HOW DID YOU ARRIVE AT YOUR EVALUATION/OPINIONS? ......................................................................... 112 QUESTIONING THE OPINION.................................................................................................................................. 113 Challenging the opinion ........................................................................................................................................... 114 Why didn’t you do more? ........................................................................................................................................ 114 Bias? ........................................................................................................................................................................ 115 CHAPTER X - INTERROGATORIES ................................................................................................................. 119 DEFINITION ........................................................................................................................................................ 119 DISADVANTAGES........................................................................................................................................... 120 ANSWERS UNDER OATH ......................................................................................................................................... 121 SUPPLEMENTAL ANSWERS .................................................................................................................................... 121 TYPES OF INFORMATION THAT CAN BE OBTAINED BY INTERROGATORIES ........................................... 121 AN EXAMPLE OF THE USE OF INTERROGATORIES ................................................................................... 122 Details ...................................................................................................................................................................... 122 DEFENDANT’S ANSWERS ............................................................................................................................. 126 COMMENTS ON ANSWERS TO INTERROGATORIES ................................................................................. 129 REQUESTS FOR PRODUCTION OF DOCUMENTS ........................................................................................ 131 Definition of “Documents” ...................................................................................................................................... 132 CONDUCTING TESTS ............................................................................................................................................... 133 Request for Production of Documents ..................................................................................................................... 134 BASICS OF PRODUCING DOCUMENTS ................................................................................................................. 134 To Whom May a Request be Sent? .......................................................................................................................... 134 Preparation of Request ............................................................................................................................................. 134 Retaining of Original Documents ............................................................................................................................ 135 Limits on Demand of Documents ............................................................................................................................ 135 Time to Respond to Request for Production ............................................................................................................ 135 How to Respond for Request if Documents are not Available................................................................................. 135 PUTTING REFUSAL TO PRODUCE DOCUMENTS ON THE RECORD ..................................................... 136 SUBPOENAS ............................................................................................................................................................... 137 Approval of Judge? .................................................................................................................................................. 137 iv Method of Serving Subpoena................................................................................................................................... 137 Non-party Witnesses Responding to Subpoenas for Production of Documents....................................................... 137 REQUESTS FOR ADMISSIONS ................................................................................................................................ 137 Is a Document Genuine? .......................................................................................................................................... 137 Evidence to be Offered at Trial is Genuine and Accurate ........................................................................................ 138 Status of a Legal Relationship ................................................................................................................................. 138 Why Should There be Cooperation? ........................................................................................................................ 138 Ignoring the Request ................................................................................................................................................ 139 FLORIDA RULES 1.371(a) ............................................................................................................................. 140 CHAPTER XI - DEPOSING WITNESSES .......................................................................................................... 143 DEPOSING HOSTILE WITNESSES ................................................................................................................... 143 DEPOSING AN ADVERSARY’S EXPERT WITNESS—DANGER! ........................................................................ 143 NOT USING AN ORAL DEPOSITION ...................................................................................................................... 143 WHO TO DEPOSE....................................................................................................................................................... 144 ORGANIZATION PRIOR TO DEPOSITION ............................................................................................................. 145 STARTING THE DEPOSITION ....................................................................................................................... 146 FORMS OF QUESTIONS ............................................................................................................................................ 146 Deponent-centered Questions .................................................................................................................................. 146 Questioner-centered Questions ................................................................................................................................ 147 USING THE FORMS OF QUESTIONS ...................................................................................................................... 147 THINGS THAT A DEPONENT CAN BE ASKED TO DO ........................................................................................ 149 STARTING POINT ...................................................................................................................................................... 149 GATHERING HELPFUL EVIDENCE ........................................................................................................................ 150 WHAT IF THEY LIE? ................................................................................................................................................. 151 MOTIVE ....................................................................................................................................................................... 153 EVASIVE ANSWERS ........................................................................................................................................ 154 I just do not remember .................................................................................................................................................. 154 Asking for documents .............................................................................................................................................. 155 Limited Memory or Selective Memory.................................................................................................................... 155 Estimate it ................................................................................................................................................................ 155 NON-RESPONSIVE ANSWER ................................................................................................................................... 155 ADVERSARIAL DEPOSITIONS ................................................................................................................................ 156 CHAPTER XII – ELECTRONIC DISCOVERY ................................................................................................. 159 THE RAPID GROWTH OF ELECTRONIC EVIDENCE ........................................................................................... 159 VIVA LA DIFFERENCE .................................................................................................................................. 161 HOW IS DATA STORED? .......................................................................................................................................... 161 COMPUTER FORENSICS .......................................................................................................................................... 163 Usage ....................................................................................................................................................................... 163 E-mail Use ............................................................................................................................................................... 164 ELECTRONIC DISCOVERY ........................................................................................................................... 164 Usage ....................................................................................................................................................................... 164 LEGAL ISSUES ................................................................................................................................................ 165 STATE RULES ................................................................................................................................................. 166 WORK IN PROGRESS ..................................................................................................................................... 167 CHAPTER XIII – DISCOVERABILITY, PROPORTIONALITY & RELEVANCY..................................... 170 PROPORTIONALITY.................................................................................................................................................. 170 RELEVANCY .............................................................................................................................................................. 171 LOCATION OF DATA ................................................................................................................................................ 172 LAPTOP/DESKTOP COMPUTER HARD DRIVES .................................................................................................. 172 NETWORKS/SERVERS .............................................................................................................................................. 173 BACKUPS .................................................................................................................................................................... 173 REMOVABLE MEDIA ................................................................................................................................................ 174 OTHER DATA SOURCES .......................................................................................................................................... 175 ANYWHERE DATA CAN BE LOCATED ................................................................................................................. 175 STORAGE MEDIA ...................................................................................................................................................... 175 Back-up Tapes ......................................................................................................................................................... 175 Computer Hard Drive .............................................................................................................................................. 176 v USB Drive ............................................................................................................................................................... 176 DVD ........................................................................................................................................................................ 176 CDs .......................................................................................................................................................................... 177 CHAPTER XIV - ELECTRONIC EVIDENCE (CONTINUED) ....................................................................... 179 REQUESTING E-EVIDENCE ......................................................................................................................... 179 Rule 26..................................................................................................................................................................... 179 “(A) REQUIRED DISCLOSURES; METHODS TO DISCOVER ADDITIONAL MATTER. .................................................. 179 Pre-Rule 16 Conferences ......................................................................................................................................... 179 E-interrogatories ...................................................................................................................................................... 180 DEPOSITIONS OF INFORMATION TECHNOLOGY REPRESENTATIVES ................................................. 184 PRODUCTION OF DOCUMENTS AND ONSITE INSPECTIONS ................................................................ 185 (A) SCOPE. ............................................................................................................................................................. 185 REQUESTING DOCUMENTS .................................................................................................................................... 185 Proportionality ......................................................................................................................................................... 185 Keywords ................................................................................................................................................................. 185 Location of Data ...................................................................................................................................................... 185 Drafts and Versions of Documents .......................................................................................................................... 186 Unique Files............................................................................................................................................................. 186 Preferred Format ...................................................................................................................................................... 186 Forensic Search for Deleted Files ............................................................................................................................ 186 Copy of Data Retention Policies .............................................................................................................................. 186 ONSITE INSPECTIONS .............................................................................................................................................. 186 ENFORCING COMPLIANCE ......................................................................................................................... 187 CHAPTER XV - RESPONDING TO REQUESTS FOR E-EVIDENCE .......................................................... 190 REQUESTS LIMITED DUE TO PROPORTIONALITY RULES ...................................................................... 190 DATA SAMPLING ...................................................................................................................................................... 192 SPOLIATION ............................................................................................................................................................... 193 WAIVER OF PRIVILEGE ........................................................................................................................................... 194 TECHNIQUES TO MINIMIZE PROBABILITY OF INADVERTENT WAIVER ..................................................... 195 TACTICS TO INSURE E-EVIDENCE IS PRESERVED ............................................................................................ 196 RETENTION ................................................................................................................................................................ 197 PENALTIES/SANCTIONS FOR SPOLIATION ......................................................................................................... 197 HOW TO AVOID SANCTION FOR DESTROYING E-EVIDENCE? ....................................................................... 199 COST OF ELECTRONIC INVESTIGATION ............................................................................................................. 200 Traditional Rule ....................................................................................................................................................... 200 Cost Shifting ............................................................................................................................................................ 201 Balancing Test ......................................................................................................................................................... 201 ELECTRONIC EVIDENCE AT TRIAL ............................................................................................................ 203 Chain of Custody ..................................................................................................................................................... 203 “Best Evidence” ....................................................................................................................................................... 203 Hearsay .................................................................................................................................................................... 204 CHAPTER XVI - ETHICS AND LACK OF CIVILITY IN DISCOVERY ...................................................... 207 INCIVILITY PROBLEMS ................................................................................................................................... 207 DISCOVERY ABUSE ....................................................................................................................................... 207 CAUSES ....................................................................................................................................................................... 208 Retaliation................................................................................................................................................................ 209 LEE V. AMERICAN EAGLE AIRLINES, INC .......................................................................................................... 213 Comments ................................................................................................................................................................ 216 KODAK-BERKEY TRIAL - DESTRUCTION OF DOCUMENTS .................................................................... 217 DISCOVERY AS REMEDY FOR INCIVILITY AND ETHICS PROBLEMS .................................................... 218 INSTANCES OF PRIVILEGED MATERIAL ................................................................................................... 219 TOBACCO COMPANIES AND DISCLOSURE ......................................................................................................... 220 vi NOTE: Throughout this text any reference to an individual will be in the masculine gender for simplicity purposes. This is not intended to ignore the contributions of female lawyers, attorneys and others in the practice of law. It is merely easier to read “his”, or “he” that it is “his/her” or he/she,” etc. One might use the female and male reference interchangeably, but that would entail counting each reference so that they would be equal and in reality, would prove nothing… CHAPTER I - HISTORY AND PURPOSE OF DISCOVERY DEFINITION “Discovery” is defined by our friend, Black’s Law Dictionary, as “Compulsory disclosure, at a party’s request, of information that related to the litigation…The primary discovery devices are interrogatories, depositions, requests for admissions and requests for production. Although discovery typically comes from parties, courts also allow limited discovery from nonparties. (Also, the facts or documents disclosed). “Discovery has a broad scope. According to Federal Rule 26, which is the model in modern procedural codes, inquiry may be made into ‘any matter, not privileged, that is relevant to the subject matter of the action.’ Thus, discovery may be had of facts incidentally relevant to the issues is in the pleadings even if the facts do not directly prove or disprove the facts in question.”(Geoffrey C. Hazard, Jr., & Michelle Taruffo, American Civil procedures: An Introduction 115 [1993]) This discussion is based primarily on Rules 26 through 37 of the Federal Rules of Civil Procedure (FRCP). State rules are often similar, although some states, such as Florida, are different in some respects. Many of these differences, if they are of importance, will be pointed out in the text. Florida Rules for Civil Procedure rules 1.280 through 1.380 are applicable for this discussion. CONTRAST WITH CONTINENTAL SYSTEM Since our legal system developed from the continental system and evolved into the common law systems, the continental system should be mentioned for comparative purposes so as to better understand the reasoning behind our system of discovery, which will, hopefully, lead to a better understanding of the workings and applicability of Discovery. 1 Common law civil procedures may be identified by three different but significant factors: (1) a lay jury is responsible and is in charge of the fact-findings; (2) the trial is continuous; and (3) the proceeding is fueled entirely by the parties involved. In the continental system, a judge is in charge of any and all legal questions that may arise, and in addition, he is the sole “judge” of facts in dispute. The continental judge also takes more of a “piece-meal” approach to the whole process. There are other, minor, differences but both the common law and the continental systems attempt to reach the same goal, a just, efficient and speedy resolution of the disputes. It should be pointed out that neither system is entirely satisfied with their performances, and are continually attempting to improve their procedures. As is only too well-known, both system are dissatisfied with their high cost and long delays, although the common law courts in this country are, at least on the surface, more concerned with the high cost of administering justice, and long delays involved. The courts are playing a more active part in the administration of justice and continue to do so, even though they have been responsible for judicial reform in many areas already. Judicial attention has been focused in the past on the trial stage, but more recently, they are focusing to the pretrial stage. The continental courts have been burdened with a lack of continuity in their trials, which has the effect of providing the participating protagonists with sloppy preparations, leading, obviously, to inefficiency. Regardless of the differences, their problems and solutions seem to be converging and there is even renewed talk of a “Transnational” Rules of Civil Procedure created by international cooperation. That is some distance in the future, however. In the common law system, the parties have certain discovery rights to gather information and evidence in preparing of their cases. Very importantly, discovery enables them to compel disclosure of information. This disclosure of information may be provided by not only their opponents, but also from third parties. Of course, in the continental system, “discovery” is a dirty word, even though it accomplishes a remedy for the major problem of the continental courts—the poor preparation for trial which leads to lengthy and piecemeal trials, etc. Only their civil judges enjoy the investigative powers. Does this lead to international conflicts? You bet. Lawyers from the United States have never been bashful about reaching for evidentiary sources in foreign countries, and to demand that the information be provided, which is justified and sanctioned by the U.S. courts. Most continental countries look upon these attempts for discovery as intolerable invasions of sovereignty, and they often voice their opposition. In some areas they have gone so far as to enact “blocking statutes” which prohibit U.S. discovery activities and tactics within their territories. For whatever reason, some Americans, particularly certain politicians, continue to look to the continent for leadership in customs, etc., and seem to have never gotten over the “redcoat mentality,” —the legal profession is no different. They marvel at the efficiency—such as it is—of 2 the continental system, which when combined with the general outcry against discovery abuse in the U.S., had led some scholars to recommend and campaign for “German advantages.” Practically, however, the transplanting of a particular action from one system to another probably has more opponents than those who believe such drastic action would benefit the present system. However, many scholars (such as Kuo-Chang Huang, author of Introducing Discovery into Civil Law) who have studied this at length, have come to the conclusion that the continental system should definitely introduce certain forms of discovery. As stated by Kuo-Chang Huang, “The availability of discovery profoundly impacts virtually all aspects of procedural justice: accuracy of adjudication, fairness between opposing parties, and efficiency of dispute resolution.” THE ADVERSARY SYSTEM Everyone knows that the most important and fundamental principle at the very base of the common law procedure, is the adversary system. Surprisingly to some, it is rather difficult to find a definition of the adversary system that is universally accepted. Going to Black’s again: “A procedural system, such as the Anglo-American legal system, involving active and unhindered parties contesting with each other to put form a case before an independent decision-maker.” This is a rather broad definition, but in its narrow sense, this refers to a system of adjudication, a concept of how trials should be conducted, and the roles of the various advocates, judge and jury, in settling a legal dispute. A basic concept is that of fact-finding when discussing forms of adjudication, and the factfinding under this system refers to a proceeding in which the two adversaries are the ones that are responsible for presenting and shaping their disputes, collecting evidence in support of their individual positions, and the presentation of their (opposing) arguments and evidence before an adjudicator (which is, importantly, neutral). The opposite situations would be where the adjudicator plays an active role in collecting the evidence and settling the disputes. PRESENTING EVIDENCE BY ADVERSARIAL PARTIES As stated above, under our adversary system each party is responsible for collecting evidence supporting their position and for the presentation of this evidence to the adjudicator. The theory behind this arrangement is simply that each of the parties involved will do the best job of locating and defining evidence and making arguments in his favor, if for no other reason than selfinterest and desire to win. In the pretrial stage each party works desperately (usually) to bring in new facts to the court that will improve their position and which otherwise, could be overlooked. For an astute person who was not familiar with this concept, they would immediately conclude that this was all built upon the proposition that all parties would have equal ability to discover the evidence in their favor. Further, they may conclude that it would allow the party to introduce facts and arguments that will present his argument in the best light, and this is also based upon equalization of the parties between presentation of evidence and their arguments. Actually, these propositions are often used by opponents of the adversary system. For instance, if there is important and material evidence in a case, but it is known only to the party whose case would be harmed by that evidence, therefore that party has no reason or obligation to 3 produce that evidence; the other party would have no way to find or produce (“discover”) that evidence. In the same vein, the party that has more money (and/or influence) can always hire a better attorney who can distort the evidence that the opponent produces, and, obviously, make better arguments. Because of this criticism, the common law procedure underwent reforms, most notably by the adoption of the Federal Rules of Civil Procedure in 1938 which introduced the discovery system. The principal goal was to allow both parties to discover necessary evidence and that way; more facts are brought before the adjudicator allowing the adjudicator to make more just decisions. By reason of allowing one party to seek information that was known only to the other party, discovery makes great strides towards equalizing the opponent’s knowledge of information and evidence, with the result that more facts are brought before the adjudicator. Further, the criticisms that one party has no obligation to provide his opponent with evidence, no longer is relevant. Discovery does not require each party to reveal both favorable and unfavorable evidence, automatically, prior to the trial. One party is obligated to disclose only the information that has been requested by the other party, and further, has no obligation to disclose trial preparation material. (These two important points will be discussed in more detail late in this text.) Those who developed the discovery system were able to retain the “adversariness” of the discovery system. The “work product” doctrine is often quoted as a sound balance between the adversarial system and discovery as it maintains the desire of the party to uncover evidence and thereby brings out more information within the discovery system. The original rules regarding discovery led to criticism that the adversarial character of discovery, put at risk discovery’s function of finding the truth. Therefore, as a result of the criticisms, the FRCP amended the rules in 1993 to introduce the “mandatory disclosure” rule, under which the parties have the obligations to automatically disclose certain information at the very beginning of the litigation. OK, some purists might jump on this rule as further weakening of the adversarial character of the pretrial process, and they would be right, but only to a small degree. This reform of discovery adds considerably to the argument that the parties to litigation do not always have the same access to material information and evidence during pretrial. Now, under the discovery system, the parties are obligated to disclose certain “core” information and evidence, the definition of which is the responsibility of the opposing party. 4 THE EQUALITY CONUNDRUM There still remains the problem that both parties will not have equal ability to effectively present their evidence and arguments during trial, as the reform did not directly confront this problem. Thereby lays the problem: There really is no practical or practicable method to ensure equality unless the adjudicator becomes actively involved. If the adjudicator became actively involved, such intervention could then seriously impair—if not destroy—the impartiality and the neutrality of the adjudicator. Because of this situation, discovery guarantees equal access to information but stops short of guaranteeing equal financial ability in collecting evidence. Still, one might reason, a financially disadvantaged party may not be able to obtain or discover evidence that requires the outlay of considerable sums of money. There is only one way to solve that problem, and that would be the introduction of an official investigator operating on behalf of the state. Even during the trial, those with better (read: more expensive) legal representation can usually acquire the services of a skillful and expert attorney in obtaining and eliciting favorable testimony as his opponent, and who is expert and experienced at objecting to inadmissible evidence whenever it is necessary or appropriate. A NEUTRAL ADJUDICATOR Another important element of the adversarial system is the presence of a neutral adjudicator. As a matter-of-fact, in the federal courts, a judge’s interest in the subject matter that is being discussed, a close relationship with the parties involved in the dispute, or having personal knowledge of disputed facts, will provide the basis for disqualifying a judge. Interesting as a matter of history, during the early common law era, the fact-finders (judges) were chosen from the people who had knowledge of the facts in dispute, and this system survived until the end of 1700s. A judge is considered as an umpire and shall be “passive, detached, and ignorant.” Therefore the finder of facts isn’t responsible, or shall he be involved in the preparation of cases and the investigation of evidence, and a decision shall be rendered solely on the evidence that has been presented by both parties. This also means that the adjudicator/fact-finder may not be actively involved in the pretrial process or pay an active role in settlement negotiations. This is as important as the passive role of a judge is essential to achieve impartiality. But as in everything else related to the law, there are those who disagree with the concept of a passive role for the adjudicator, as they feel it leaves too much opportunity for the parties (by the attorneys) to manipulate the legal process and to misrepresent the truth which is produced as a result of the system. One can understand this opinion somewhat as, for example, during the examination of witnesses where the judge is “passive.” The witness is usually prepared, reprepared, and prepared again, and his testimony is the result of carefully placed questions so that the adjudicator only heard what the party wishes for him to hear, and that is not necessarily the truth or the whole truth. Therefore, these who disagree with the concept of a passive role would prefer that the adjudicator take a more active role in examining the witness. 5 CASE MANAGEMENT Another argument uses the theory of “case management” as evidenced by some federal judges who deviate from their passive roles as adjudicators, and have become managers of civil cases. They sometimes actually become involved in streamlining the discovery process, they supervise case preparation, and most obviously—they press for pretrial settlement. Why is this important to this discussion? Many scholars fervently maintain that the role of the passive judge to an active role is at least partly due to the introduction of discovery. Discovery requires the judge to have more knowledge of the facts and details of the controversy so that they can resolve discovery disputes. Also, some of this movement of role is because of increased workload and because of pressure to alleviate the cost in time and money of litigation, which pressures a judge to “micromanage” so that the dispute can come to a just and timely end. “Case management” was questioned by many as to its desirability, effectiveness, and even its legitimacy. Regardless of the criticisms, the movement to case management was sanctioned by the FRCP in 1983, where an advisory committee stated that it was believed that “when a trial judge intervenes personally at an early stage to assume judicial control over a case and to schedule dates for completion by the parties of the principal pretrial steps, the case is disposed of by settlement or trial more efficiently and with less cost and delay than when the parties are left to their own devices.” (FRCP 16 Advisory Committee’s notes [1983]) This was amended further in 1993 to expand the judge’s power in controlling the discovery process by shaping issues that are trial able and also limiting the use of expert witnesses during the trial process. When all is said and done, case management is credited with reducing litigation cost, expediting the disposition of cases, with the result that there are more settlements. Therefore, at least in the federal courts, the idea of a passive adjudicator at the pretrial stage of litigation, no longer exists. This is considered a good thing. It should be noted that this is not the case in a criminal procedure as even though the judge may be the fact-finder also, he remains passive and normally does not intervene in the presentation of evidence. Further, in examination of witnesses, a judge may conduct his own examination and even call witnesses – even though judges rarely exercise these powers. So regardless of arguments to the contrary, the fact is that it is mainly the parties who call the witnesses and conduct examinations. RULES AND ETHICS FOR THE LAWYERS The rules of procedure outline the process and steps taken by participants at various stages of litigation. There are rules that regulate how the parties may present their evidence and the arguments during the trial and what information can be given to the adjudicator and used by him to formulate a decision—rules of evidence. Since there are two sets of rules it is necessary for there to be a group of professionals who understand the rules and can help the parties to advance their positions and to make sure that the system operates justly and efficiently. Therefore, there must be another set of rules to govern those professionals in their proper role and in their behavior. Hence, the ethical rules of lawyers. 6 Ethics will be covered more extensively in the last chapter, but suffice it to say here that the role of lawyers and their functions are so important to the adversary system that “the integrity of the adjudicative process itself depends upon the participating of the advocate.” (Lon. L Fuller & John D. Randall, Professional Responsibility; Report of the Joint Conference, 44 ABAJ 1159,1160[1958]) Whether the public should place the their confidence in the adversary system into the hands of lawyers, and the function of the lawyers and how they should perform these functions, will vary, depending upon one’s interpretations of the adversary system. It is reasonable and necessary for the system to require that lawyers act partially and zealously for their client’s interests. Of course the entire subject goes much deeper and detailed in the discussion of the adversary system, including the attorney-client relationship which is beyond the scope of this discussion. It is mentioned as this zealousness creates concern among not only those in the legal profession, but with the general public, that lawyers use the skills to “manipulate” and distort the truth, rather than work towards the ultimate goal of justice. Those who are critical of the of the adversary system maintain that because the ethical rule values zealous representation over the pursuit of the truth, lawyers have a free rein to conceal material facts or evidence adverse to their position. Further, many feel that the attorney-client privilege—which is not readily understood by the general public—are used to shield disclosure of such material at the pretrial stage. These critics, and there are a number of them, strongly feel that the “partisan advocacy” should be replaced with a full disclosure of all material facts, therefore the lawyer’s loyalty should no longer be with that of the client, but only the “truth.” Furthermore, the attorney-client relationship should be diminished considerably. These critics have had some force with the ethical rules of lawyers. The lawyer’s role and responsibilities under the ethical rules basically state that parties are prohibited from fabricating or falsifying evidence, or presenting false evidence and lawyers are also prohibited from doing so under the ethics rules. Further, lawyers have the obligation to correct the situation when this prohibition is violated or ignored by their clients. (Model Rules of Professional Conduct, Rule 3.3[1983]) This holds also for the obligations of the parties to disclose information under discovery and the parties’ freedom not to reveal adverse evidence beyond that required by law. The ethical rules require lawyers to comply with discovery requests; however, they are not required to volunteer facts or evidence. The reform of the system has changed the area of zealous partisan advocacy during pretrial. This, of course, does not hold during the trial state as it is still considered ethical by lawyers to impeach truthful witnesses and elicit testimony through witness preparation so that they will testify in a manner and to subjects that are favorable to their client. Another very important role that lawyers perform under the adversary system is to attempt to equalize the resources of the two parties. As mentioned earlier, the system is severely criticized by many that the adversary system is structured so that both parties can equally prepare and present their cases. But it is so well known, if a party has more money to invest in investigation and 7 litigation, chances are great that “big-bucks” will win. The reform of discovery has lessened the disparity of the parties in collecting and preparing evidence, but leaves still the often-inequitable effective presentation of the case. Of course this can be mitigated if the poor are represented by competent lawyers, which isn’t easy as the poor must have equal access to the service of lawyers. Also, the competence of the lawyers representing both parties must be comparable. The Supreme Court has held that in civil matters, due process does not guarantee the litigant a right to counsel, however contingent fee methods, pro bono programs, and legal aid clinics help to broaden access to “decent” legal representation. It is sometimes forgotten that all lawyers must suffer a legal education, bar admission, continuing education courses and legal malpractice litigation which provide the minimum competence for acceptable representation. Having said all that, there still remains inequity in the adversary system, but the system has accepted the disparity, rather than “change the game,” by inviting the adjudicator to make adjustments to the inequality. Since there has been mention of comparison of the civil procedures between the U.S. and the continental system, suffice it to say that the continental system makes a much different choice. RELATIONSHIP BETWEEN DISCOVERY AND THE LITIGATION PROCESS In order to make a single, continuous trial operational and functional, it is necessary to have a system of detailed preparation that defines the issues narrowly and arranges the materials in an orderly and organized fashion. Under the adversary system, parties are responsible for preparing and presenting their own cases. It is known from experience that this can be accomplished only through complicated pleadings, or pretrial discovery. In respect to complicated pleadings, as they say in New York, “fuggidaboudit.” Experience has shown that that is an insufficient basis to prepare for a trial and further, it leads to many undesirable consequences, as the development of the modern common law civil procedures has shown. One such consequence is surprise at trial (without which there would be less law programs on TV). Since the pleading did not require for the evidence of the allegations to be presented prior to trial, this led to the advantage of the party making the allegations to offer unexpected evidence at the trial, which was nearly impossible to counter the unexpected evidence because of the constraints of time. The result of all this is that the FRCP reform discussed earlier shifted the focus of trial preparation from rather awkward and cumbersome pleadings to (ta-daa, the sounds of trumpets and the roll of the drums): Discovery. Discovery eliminates surprises at trial by allowing a party to probe his opponent’s case and to discover the evidence that the opponent was probably going to introduce at the trial; therefore the party can prepare to counter that evidence at trial. Further, although the modern discovery system eliminates greatly the element of surprise, the system of discovery is not limited only to that goal. Indeed, it takes another step by providing 8 the type of discovery that allows a party to gather all relevant information that is pertinent to the case and necessary to establish his case—even, and more particularly, information that is outside of his control or knowledge. “Discovery” falls into two types: the surprise-prevention discovery which is designed to eliminate the element of surprise and the evidence-gathering discovery which tries to remedy the assumption (false) of the adversary system that both parties have equal access to the relevant information. These two types of discovery work well under the concentrated-trial system and under the adversarial principle, but one should never confuse their differing functions. The surprise-prevention and evidence-gathering bifurcation actually divides the evidentiary materials that are controlled by an opponent, into two groups: (1) the materials that the opponent would introduce during oral arguments, and (2) those materials that the opponent would conceal. The information that is derived from (1) will usually give the party some indication that there may be something to discover through (2). This allows for information to be gathered by one party that otherwise would not be obtainable. SETTLEMENT In the modern litigation procedures, a common thread is that most cases settle (both in the common law and the continental system). There is a rather large difference between the settlement rates of the common law and the continental systems. In the common law system (incidentally, that also includes England) less than ten percent of your run-of-the-mill civil cases are determined by court trial. On the continent, for instance, in Germany about 30% of all such civil cases are settled by the court, and other countries are similar, except in France where it is nearly 70%. It is safe to say that these differences arise from differences between the systems. One of the reasons for the differences is that people in Europe have a tendency to avoid litigation and are more likely to settle disputes privately as they use the courts as a last resort. Also, the selection procedures in the continental system are more difficult to settle than those filed in the common law system. Another reason is that the different results may be because of the higher costs of litigation in the common law system, therefore a settlement is more attractive and the common law system would, therefore, encourage early settlements. Since this is a study of the discovery process, the question naturally arises whether the discovery system may also account for the discrepancy between the settlements rates of the two systems. Unfortunately, it is nearly impossible to determine the effect of discovery precisely as such data as to the reasons for settlements have never been collected. The continental system does not actually support the contention that their relatively high number of settlements is a result of the lack of discovery. The question arises as to whether promoting the settlement rate as opposed to a fully litigated system is desirable. It would be a desirable way of disposing of a number of cases and it can be effectively argued that that produces many benefits, such as efficiency and certainty. 9 Also, the effect of discovery on settlement is really more of an information effect, rather than its cost, as it is effectively argued by many that discovery drives up the cost of litigation, therefore leads to more settlements, which is probably only one factor in the advantages of using the discovery system. On the other hand, it is obvious that the very existence of the discovery process makes it much easier to voluntarily exchange information, thereby reducing the need for formal discovery and as a consequence, its cost. Cost reasons aside, the effects of discovery on information leading to settlement affects both the frequency of settlement and also to the quality of settlement. In the continental system it is rather well known that civil law judges push for settlement rather vigorously, so the settlement rate is a goal that the continental system desires. Some legal scholars have advanced the two most important purposes of the discovery system is the facilitation of settlement and promoting settlement based on the merits. In respect to the quality of settlement, it is nearly unanimous that discovery can facilitate settlement on court cases. Many share the view that discovery affects only the terms and not the frequently of settlement in the U.S. This view relies on assumptions regarding the U.S. system that do not exist in the continental system, therefore discovery can not only improve the quality of settlement, it also promotes its frequency, but this is arguable among other scholars. While it is agreed that in the U.S., the litigation process of discovery improves the quality of settlement, some are not sure whether discovery increases the frequency of settlement. While some scholars have worked hard and long over the advantages of discovery in the settlement process, many by using “models” and processes much too detailed to discuss here (even if one could understand the theories behind the theoretical models) have arrived at conclusions which should be of interest to the discovery students. In 1984, one such scholar, Lucian Bebchuk, states that the informational asymmetry (lack of symmetry) is responsible for the various parties’ lack of settlement, so by reducing the informational asymmetry, discovery can increase the probability of settlement. (Lucian Arye Bebchuk, Litigation and Settlement under Imperfect information, 15 Rand J. Econ. 404 [1984]) Others provided other models 10 years later that showed that discovery can promote settlement either by making parties more pessimistic about the result of the trial, or by reducing the variance in the distribution of the values expected by the parties in the litigation of the case. Another argument was that if the party holding information that would affect the outcome is able to convince his opponent before the trial, then discovery will affect only the terms of settlement and not the frequency of settlement. While discovery could reduce the likelihood of trial, it is conceded, where the party that holds the information is not able to establish such information, it is further argued that this is not because of the informational effect of the discovery process, but because of the rise in settlement demands by the other party as a consequence. Another study analyzed the information effects of discovery and concluded that only the terms of settlement is affected by discovery, and it does not make settlement more likely. It stated that discovery may not be necessary for discovering the information that would appear at the 10 trial because either the party that has the information would close the information voluntarily prior to the trial, or, the opponent would be able to draw an inference from the silence of the other party (silence is not necessarily golden). However, if there were no discovery, certain information would not appear at the trial, therefore discovery is necessary to unearth such information with the consequence of having a considerable effect on both the accuracy of the adjudication and the quality of the settlement. Another argument which many feel is quite specious and that may be difficult to understand—as many such arguments are—is based on the theory that discovery will not promote settlement because parties not only have strong incentives to voluntarily disclose favorable facts, but also will disclose unfavorable facts because silence will result in adverse inferences by their opponents, therefore it is quite costly (much as stated above). Therefore, discovery rules do not have a great effect because they require that the parties would do anyway. (Steven Shavell, Sharing of Information Prior to Settlement or Litigation, Rand J. Econ. 183 [1989]) VOLUNTARY EXCHANGE OF INFORMATION The above theory leads to this discussion of the voluntary exchange of information. Simply put, if all the information in a dispute is known to all parties, then discovery is not needed— indeed there would be no need for any information exchange. Therefore, in this situation, if there is no settlement, it must be due to something other than the asymmetry of information. This is simple. However, looking at the flip side, if one party has sole control or knowledge of pertinent information and the opponent has no knowledge whatsoever of this information and may not even be aware such information exists, then this creates problems. Assuming that the defendant controls the pertinent information in respect to the extent of his liability in the matter. So, if there were no discovery, will the defendant voluntarily make the information known to the plaintiff? As the modern generation might say, “Yeah, right!” Of course, whether they would make the information available would depend greatly on the value and character of the information. The defendant has the incentive to disclose favorable information but to not disclose unfavorable information, naturally. The defendant’s incentive to disclose favorable information is derived from his desire to eliminate any litigation costs. While the concealing of the information until the trial could lead to a victory for him, he would still incur litigation costs. Since trial is costly, often the defendant would be better off by voluntarily disclosing the information so as to make the plaintiff abandon his claim or, at least, lower the settlement demands. If this were to happen, discovery would not be needed at all. But, in regards to the unfavorable information, the reason that the defendant would want to conceal this information is rather obvious as by disclosing this information, the defendant’s position is weakened in winning the case, and further, so is his position at the bargaining table. It is safe to say that no litigant in his right mind would voluntarily disclose unfavorable information; therefore the rules of discovery are necessary for the plaintiff to learn of such information. 11 To take this to the next step, those who argue that discovery is not necessary to force the defendant to disclose unfavorable information, take the position that the normal “unraveling” (i.e., the gradual condensing of information during the trial into segments) could, and often does, inform the plaintiff of the character of the information just as much as full disclosure would under discovery. Taken one further step, it can be argued that this unraveling effect might even convince the defendant to reveal unfavorable information voluntarily. If the plaintiff does not know the contents of the information that is unfavorable to the defendant (therefore favorable to the plaintiff) he becomes is aware that such information, whatever it may be, actually exists, and is able, through discovery, to introduce the information at the trial. While it is a given that the defendant will not voluntarily reveal such information, then discovery is necessary to force the defendant to disclose the otherwise-concealed information. Since the plaintiff knows that the defendant will voluntarily disclose favorable information, any silence on the part of the defendant about any particular information, in effect, tells the plaintiff that this information must be unfavorable to the defendant. So, the plaintiff raises his settlement demand, depending upon how much he thinks this information will increase his expected gain of litigating the case by the probability of winning the case. If the plaintiff is too optimistic, the defendant will disclose the content of the information to the plaintiff to make him lower his settlement demand since the defendant is interested in avoiding litigation. If, on the other hand, the plaintiff’s estimate is too pessimistic, then the defendant will keep his mouth shut since they have no interest in curing the plaintiff’s low settlement demand. Now comes the psychology of negotiation—the plaintiff should then know that because of the defendant’s incentives, his settlement demand is too low, so he will raise it when the defendant keeps silent. Therefore, either the plaintiff will become aware of how the information will affect the result of the litigation by inferring from the defendant’s silence or the defendant will then be persuaded to reveal the information voluntarily. Sound good? If this always worked this well, then there would be no need for discovery. Obviously, there are certain impediments to this process of releasing unfavorable information. These “impediments” seriously veto the voluntary exchange of information as it just would create more gamesmanship and uncertainty, and would reduce the probability of settlement. “For every action, there is an equal and opposite reaction.” While there may be an incentive to disclose information in order to save the cost of litigation, there is another incentive that is “equal and opposite.” The defendant may wish to conceal favorable information until the trial so that he can “surprise” the opponent and thereby increasing his probabilities of winning the case. Most will admit that the defendant prefers the value of saving litigations costs over the value of surprise, and will act accordingly in disclosing information. This is even more plausible in the U.S. as the defendant will pay his own litigation costs regardless of the income, wherein it would probably not be plausible in those European countries where the loser pays for all the litigation costs. Therefore, the defendant in the U.S. is likely to prefer saving liquidation costs, something he can relate to, to the rather uncertain effect of surprise. As another aside, in the continental system, where the loser pays for all litigation costs, just the reverse would be true. 12 COMPULSORY DISCOVERY The compulsive disclosure part of the discovery system will be discussed and referred to at several places throughout this text because the direct effect of discovery prior to trial is to compel disclosure of information. The party holding the information can be compelled to share this information with his opponent. Discovery has the effect of compelling the revelation of information that the holding party would introduce to the court, prior to trial. Therefore, when the case goes to trial, all aspects of surprise should be eliminated. However, since the party that holds this information will disclose this information, this would also have the effect of correcting the opponent’s evaluation, biased as it certainly would be. Therefore, the probability of that person previously holding information detrimental to his case, would realize that the probability of winning is decreased while the likelihood of settlement will increase. After the party discloses his favorable information to the plaintiff, the plaintiff will tend to correct his optimism about winning the case. Therefore, this will not only reduce the plaintiff’s expected return of litigating the case, it will also increase the probability that he will bear all of the litigation costs. The result of this would be that the plaintiff will lower his settlement demand and the parties will probably settle. In respect to the information that the holding party does not intend to introduce to the court, discovery makes it much more likely that the information will be discovered by the opponent, than it would be without discovery. This happens because the opponent can use discovery to a greater degree in procuring information, than it could without discovery. When information is uncovered through the process of discovery, any subsequent settlement will reflect the merits of the case to a greater degree than it would have without the discovery process, therefore the quality of the settlement is improved. Now, how about the frequency of settlement? To start with, the evidence that was uncovered because of the discovery process is usually not the type of information that the party holding the information would present to the court, therefore it is safe to say that this information is unfavorable to the party holding the information. Therefore, it is generally accepted that because the disclosure of such information will make the holding party’s opponent more confident about his case, the likelihood of settlement decreases. What effect does this have on the holding party? There is a good chance that the unfavorable information being disclosed to his opponent can have a deleterious effect on his confidence, just as the release of the unfavorable information has given his opponent a shot-in-the-arm. Whether the effect of the opponent’s new optimism would be greater than the holding party’s pessimism is open to debate. On the one hand the probability of settlement will decrease; on the other hand just the reverse can happen. Also, discovery can erect a stop-sign for the holding party’s opponent to discover the information and complete his evaluation prior to the court trial. 13 Suppose the situation is that the plaintiff is unaware of the unfavorable information held by the defendant; in which case the plaintiff will complete his case evaluation and he would not have any reason to continue the litigation other than when his expected gain is (still) greater than the expected loss of the defendant. The problem here is that the final judgment or settlement, whichever, does not take the concealed information into consideration. But once the plaintiff knows—or at least suspects—that there is other information in existence, he will want to litigate the case hoping that other evidence may be uncovered that will lead to unfavorable information—doggone it, there just has to be more to the story… Now, in case you did not recognize it, the above scenario would occur in the continental system, but not in the common law systems, thanks to our friend, “discovery.” This scenario changes greatly when discovery enters the picture. Since the plaintiff’s odds of discovering any information unfavorable to the defendant and in the defendant’s custody or knowledge, are much greater than through the judicial taking of evidence, if the plaintiff cannot discover the information during the discovery stage, then he cannot expect to learn it at the plenary hearings. Discovery intensifies the chance of settlement by changing the rules as to how an opponent searches for information that is concealed by the other (holding) party. Now, after this discussion, once can conclude that discovery has the effect of not only improving the quality of the settlement, but also encouraging its frequency. And finally, this discussion can be summarized by noting that the effect of discovery on improving the voluntary exchange of information is a direct result of eliminating impediments to such exchange. One such impediment is that the party holding the information may rely heavily upon surprise. Discovery eliminates the surprise element in this respect. Failure to release favorable information serves no purpose anymore as it can be obtained through discovery, so the holding party’s incentive to withhold favorable information is decreased dramatically. That information will be disclosed before the case goes to trial, so he is much more liable to disclose, voluntarily, this information than he would if discovery were not present. Also, discovery can eliminate the uncertainties and “gamesmanship” that becomes another impediment to voluntary share information as with discovery it is much more likely that unfavorable information will be increased. This does not, of course, guarantee that the holding party will always disclose unfavorable information, but the odds increase that this information will be revealed. In addition, discovery can enable the holding party’s opponent to verify any information that is disclosed, making it much more difficult to disclose false or incomplete information. Therefore, checks and balances on pertinent information are introduced. 14 Many believe that the real, true effect of discovery rules is that by their very existence, parties very often do not rely upon formal discovery. Further, information is not only exchanged, it is exchanged more efficiently. The results of recent studies on discovery in the U.S. show that discovery facilitates the exchange of information. Reports show that more than 90% of cases are settled, and the parties had engaged in formal discovery only in about 50% of the cases. This should not be taken as an indication that discovery is not necessary to facilitate settlement, but just the reverse. The parties in many of the settled cases exchanged information voluntarily instead of using formal discovery. With discovery rules as a backup, information can be exchanged more voluntarily, more cases are settled and settled more efficiently. STUDY QUESTIONS 1. The primary discovery devices are interrogatories, depositions, requests for admissions and A. subpoenas. B. requests for production. C. electronic data. D. asking. 2. Our (U.S.) legal system developed from the A. Asian system. B. French law. C. continental system. C. Roman law. 3. In the continental system, a judge A. is in charge of any and all legal questions that may arise and is the sole judge of facts in dispute. B. is merely a figurehead with little if any authority. C. can be compared to our foreman of the jury. D. must be elected for a period of 6 years. 4. In the common law system, discovery A. is non-existent. B. is illegal. C. enables them to compel disclosure of information. D. pertains only to bankruptcy and estate settlement. 5. Most continental countries look upon discovery as A. just another tool in criminal cases. B. their own “invention” and domain and look at contempt with the US copying them. C. intolerable invasions of sovereignty. D. a substitute for testimony in civil cases. 15 6. Under our adversary system, the responsibility of collecting evidence supporting their position and for the presentation of this evidence to the adjudicator, is that of A. the complaining party. B. the judiciary. C. law enforcement. D. each party. 7. In discovery, one party is obligated to disclose A. all evidence, favorable and unfavorable, prior to the trial. B. only evidence that is harmful to himself at trial. C. only evidence that could be harmful to his opponent at trial. D. only the information that has been requested by the other party. 8. In discovery, there really is no practical or practicable method to ensure equality unless A. the adjudicator becomes actively involved. B. both parties are of equal financial worth. C. the counsels for both parties are picked by the bar association. D. neither party is represented by counsel. 9. When, in a civil case, a judge deviates from his role as adjudicator and becomes a manager of civil cases, they usually A. are much more efficient in determining facts of the case. B. press for settlement. C. are replaced by another adjudicator. D. rule automatically for the plaintiff. 10. In discovery, ethical rules require that A. lawyers comply with discovery requests, including volunteering facts or evidence that they feel important to both sides. B. a lawyer not become involved in discovery as that function must be performed by a Paralegal. C. lawyers comply with discovery requests, however they are not required to volunteer facts or evidence. D. only the court reporter be present at depositions. ANSWERS TO STUDY QUESTIONS 1B 2C 3A 4C 5C 6D 7D 8A 9B 10C 16 CHAPTER II - WIDTH AND BREADTH OF DISCOVERY THE RISE OF DISCOVERY In civil procedure over the past hundred years or so, there has been big news that has had a huge effect on the way that civil procedures are conducted—the death of pleading and the rise of discovery. As indicated earlier, pleading played an important role in arriving at decisions based upon the issues and the arguments of the parties involved. Plaintiffs had to learn as much as they possibly could about their cases before they instituted suit. Then they pleaded their cases according to their “best guess,” or as some said, their “learned assumptions” as to what they could prove in court. Then, once the pleadings were over and were settled, then the only thing left was to prove what they had alleged. Then, lo and behold, discovery was introduced. Now the complaint and the subsequent answer provide a tentative view of the position of both parties which is based upon preliminary research and investigation. When the issue is joined, then each party develops their positions through the discovery process—the production of information not only from other parties, but also non-party witnesses, all mandated by the courts. As the case unravels, the parties normally can amend those pleadings based upon their evolving understanding of the information regarding the dispute. The tools of discovery include interrogatories (FRCP 33; Florida 1.340), requests for production or documents (FRCP 34; Florida 1.351), oral depositions (FRCP 30; Florida 1.310) and automatic disclosure (FRCP 26(a); Florida 1.280 & others). These discovery tools are discussed in more detail later in this text. MOST OFTEN USED DISCOVERY DEVICES Federal Judicial Center statistics indicate that the discovery devices most often used are: Document production: 84 percent Interrogatories: 81 percent Depositions: 67 percent Initial disclosures: 58 percent (FRCP 26[a][1]) Expert disclosures: 29 percent (FRCP 26[a][2] Expert discovery: 20 percent NOTE: FRCP (Federal Rules of Civil Procedures), are rules applicable to the federal courts. Most states have followed these rules, indeed in some states they copy them verbatim. Other states have very similar rules with only small difference, while other states, including Florida, have some differences. If there is significant difference between the Federal and Florida rules, these are usually pointed out, however there are enough differences so that if a case is to be tried 17 in a Federal court, the FRCP should be studied and followed, but if the case is to be tried in a Florida court, then the Florida Rules of Civil Procedure should be studied and followed. Since rules and regulations change, it must be pointed out that the rules quoted in the text are those effective in 2004. Therefore these quoted rules are used as changes may have occurred. The previous chapter provides a good explanation of how discovery developed, but there is one fundamental point to always remember: Discovery is conducted by the parties and not by the court. To reiterate, interrogatories and requests for production are sent by counsel for the parties, to each other. The responses are sent back by counsel. Counsel schedules and conducts depositions without the presence of the judge. Further, the judge (or “adjudicator” in the historical sense—used interchangeably in this text) does not screen these documents before they are sent, but is present only to assist in scheduling discovery, plus, as one can imagine, to settle any disputes during the exchange of information. The adjudicator does not participate in the exchange otherwise. Nevertheless, discovery was created by the courts, established by and enforced by the courts, and the court has provided very powerful mechanisms for the production of evidence when it is necessary to do so. Through discovery requests, attorneys can force the opposing parties—and other witnesses when necessary—to provide oral testimony on any issue on the case. The “smoking gun” documents hidden away in locked and confidential files and which produce the most damaging evidence for the holding party must be disclosed under the rules of discovery. Where is the hue and cry about invasion of privacy and right of confidentiality, etc.? Actually, in civil cases the development of the case still rests primarily in the hands of the presiding judge. And further, discovery is much more limited in criminal cases than it is in civil cases. DISCOVERY MUST BE RELEVANT Discovery rules, by their very nature, are powerful because they do not only compel the revealing of evidence, but also the scope of the evidence involved is broad. The scope of discovery is evidenced by Rule 26(b) (1): “Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” 18 Florida 1.280(a) “Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise and under subdivision (c) of this rule, the frequency of use of these methods are not limited, except as provided in rule 1.200 and rule 1.340.” Obviously there is some difference here, but the result should be the same as these provisions allow the parties to obtain any, for all practical purposes, information which is relevant to claims or defenses that would be raised in the case. This seems just about as broad as it could practically be. As a side note, this rule was even broader until 2000. In the previous rules, the standard allowed discovery of “any matter, not privileged, relevant to the subject matter involved in the pending action.” However, the Supreme Court had held (Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 351 & n.12[1978]) that “Consistent with the notice pleading system established by the Rule, discovery is not limited to issues raised by the pleadings, for discovery itself if designed to help define and clarify the issues.” The Advisory Committee on Civil Rules recommended that this be narrowed, using verbiage: “relevant to the claim or defense of any party.” This seems to have the desired effect of reining in some “stretches” of definition and the discovery process will now be restricted to only the issues within the pleadings of the parties. There are still those who feel that this wording is not restrictive enough, but only experience will prove this, one way or the other. As broad as this is, it does not mean that information would be automatically subject to discovery production if it meets the relevance requirements, as relevant information is discoverable “unless limited by the court (Rule 26[c]).” Therefore, a party receiving a request for discovery may seek a protective order from the court under Rule 26(c). “Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the disclosure or discovery not be had; (2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the disclosure or discovery is limited to certain matters; (5) that discovery is conducted with no one present except persons designated by the court; (6) that a deposition, after being sealed, be opened only by order of the court; 19 (7) that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.” If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or other person provide or permit discovery. Florida rules address the scope of discovery, as follows (1.280[c]): “Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” The court may enter a protective order-limiting discovery for various reasons, including the burden and expense of producing the information, the protection of private and intimate facts, which should remain private, the possibility of using discovery to annoy or intimidate an opponent, to protect certain propriety business information, and other such reasons. RELEVANCE The following is an example of the relevance rules: Bob was injured at his home when a multiple-use ladder that he had recently purchased because of television advertising, manufactured by the Steller Corp., partially folded when it was being used as a scaffold, one of the uses advertised. Bob sued Steller maintaining that the ladder was negligently manufactured. Under Rule 34 he requested for a copy of all written warnings that was provided to users of the ladders that concerned any risk by using the ladder. Steller objects to this request as they consider it relevant to a negligent failure to warn, or strict liability theory, and that Bob has only pleaded a different theory: that Steller was negligent in manufacturing the ladder. Who is right? Rule 26(b)(1) as amended in 2000, authorizes discovery of information “relevant to the claim or defense of any party.” Therefore if “claim” as used here refers to the claim in Steller’s complaint, then this information is probably not discoverable. The claim is for negligence in the manufacture of the ladder, and not for failure to warn of the risks involved in using the ladder. It can be argued, believe it or not, that this is a different claim which has not been raised by either party and therefore is not within the scope of discovery. 20 If Bob is asking for this information so that he can determine if there is a factual basis for adding a new claim for negligent failure to warn, he may not have thought that he had sufficient information to support a failure-to-warn claim, a new “claim.” This smells somewhat like a fishing expedition. If Bob now wants to use discovery to gather enough information to determine whether he should amend the complaint to add this failure-to-warn claim, his request would probably fail. However, if the rule is interpreted to refer only to the “claims” already pleaded, counsel would be under pressure to plead multiple theories, even if they have very little, if any, evidentiary support for a portion of them. Under Rule 26(b)(1), the counsel would have had to plead them first. The result? Friction and tension between the need for discovery to develop a case and the very narrow Rule 11, defining unsupported pleadings would apply. Prior to 2000, interestingly enough, this rule would not have applied and the documents would have been discoverable even if the warnings were not relevant to negligent manufacturing, which was the basis of the initial claim that Bob filed. Under that rule, Bob would have been able to seek discovery of information that was relevant to the underlying litigation, even though he had not (yet) pleaded a claim for failure to warn. Further assume that Bob did not give up the ship so he sends interrogatories to Steller requesting information on whether there had been any changes in the design of the ladder. Steller immediately objects on the grounds that changes after the date of the accident are irrelevant to the claim and would be inadmissible at trial under Federal Rule of Evidence 407 which specifically bars using evidence that the defendant took “subsequent remedial measures” to improve the product after an accident in an attempt to show that the product was negligently designed at the time of the accident. (Incidentally, the reasoning behind this Rule is that if such evidence was to be allowed at trial, it would discourage parties from making changes that improve the safety of their products for fear that such changes would be used to prove that they were originally negligent. Makes sense.) However, (there are a lot of “however”s in this text, in case it had not been noticed…) this would not be proper as discovery is limited to information that would be admissible under the rules of evidence. Information does not need to be admissible at trial to be discoverable if it is relevant and appears to be “reasonably calculated to lead to the discovery of admissible evidence.” (Rule 26[b][1]) If there is evidence of changes in the product design, it would without a doubt help Bob to locate witnesses that may have information about the design. This would help him prove that other designs could maybe have avoided the danger of the collapsing ladder. So the evidence is discoverable as it would assist Bob in examining Steller’s witnesses about the issues of negligence. Let’s take this one more step. Now, Bob was disabled and unable to perform his duties as a warehouse foreman because of the accident, so he is now seeking damages for loss of earnings capacity. Steller sends a request for documents to Bob asking for his tax returns for the past five years before Bob was injured and for the year and a half since he received the injury. 21 Yes, Steller has a good reason for obtaining information about Bob’s past earnings through discovery as this is a major issue—whether the accident affected Bob’s earnings as he claims. What better way to prove this one way or the other except by tax returns from before and after the accident, so this information is clearly relevant. Does Bob want to produce this information? Probably not. His tax returns contains all kinds of confidential information which he does not want to become public, but there is no rules that bars production just because there is confidential information, so the trial may require parties to share what would otherwise be confidential information. However (again), since Steller has a good legitimate need for discovery to determine Bob’s earnings, their needs can be modified to keep both parties happy. Steller does not need to know anything other than the earned income prior to the accident, so probably Bob will be allowed to just furnish that figure from wage statement or 1099 self-employed forms. This should keep both parties happy. If Steller feels that this is insufficient, Bob’s attorney will undoubtedly provide the wage statements only and Steller will probably accept that if for no other reason than he realizes that it might be difficult to prove to the court that they need anything more. RELEVANCE VS. BURDEN There seems to be a lot of sexual harassment “going on around here” lately, even to the point to where accusations of sexual harassment have run rampant at the United Nations, of all places. For purposes of illustration, a sexual harassment case (but not at the UN) provides an instructional situation. Hawkins (Miss) works for a large hotel chain, Paramount Hotels, as a desk clerk. She was fired from her job because, she claims, her supervisor, Johnson, made some obvious sexual advances to her and when she refused to “inspect a room” with Johnson, she was fired. She claims sexual harassment. Johnson maintains that he fired her because she was using her job as a desk clerk to set up later assignations with wealthy lonely traveling men. During discovery, the attorney for Johnson send interrogatories asking for the names of all men that she has had sexual relations with in the last five years. This is a rather interesting situation because there is no doubt that her past sexual activity is relevant to Johnson’s defense that she was misusing her position in order to make money “on the side.” Of course, if Hawkins would comply, then Johnson could subpoena some of her “friends” which would then lend creditability to his contentions. How should Hawkin’s attorney respond to the interrogatories? Obviously, the attorney will strenuously object because of the private nature of the information that Johnson is seeking and he will move for a protective order from the court that would bar the production of any such information. Another part of the rule—just because evidence is relevant does not necessarily make it discoverable. The court (FRCP 26[c]) may enter a protective order which limits discovery even if it meets other standards, such as the “broad relevance standard” (Rule 26[b][1]). Florida Rule 1.280(c) takes the same position: 22 “Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery.” Therefore, there is a good argument that Hawkins not be compelled to produce this very personal information. There was a similar case where the court granted a protective order barring such inquiries, noting that “discovery of intimate aspects of plaintiffs’ lives as well as those of their past and current friends and acquaintances has the clear potential to discourage sexual harassment litigants from prosecuting lawsuits such as the instant one.” (Priest v.Rotary, 98 F.R.D. 755, 761 [N.D. Cal. 1983]) While there is little doubt that often intimate information must be produced during the discovery process, whatever the information requested is worth, it cannot be equal to the intrusion of privacy of Hawkins. Just for fun, assume that Hawkins has no witnesses to the alleged sexual harassment by Johnson, but she has heard that he is seeing a psychologist as he has made that fact known around the office. A friend tells her that Johnson has talked to his therapist about his “inclinations” to frequently try to have sex with women. Aha! Hawkins thinks. But her attorney acknowledges that whatever Johnson has talked over with his therapist is privileged, he still moves for an order granting discovery of the therapist’s notes, His argument is that even though the records are privileged, the only way that he can make a case for his client is through the access to his notes. Of course the therapist/patient confidentiality would be in play here to protect Johnson’s communications with his therapist. But Hawkins’ attorney was never one to give up, so he maintained to the court that he absolutely positively needed those notes, otherwise he cannot make a prima facie case. (Actually, this is rather transparent because Hawkins can personally testify as to Johnson’s moves on her in the office, and that should, or at least, may, make a prima facie case.) Regardless, there is no doubt that the therapist’s notes are very important to the case. That would not hold water, though, as courts know that it is more important to protect the privilege than to allow litigants to ignore it. Unless there is some constitutional issue, the claim of privilege will usually prevail, regardless of the importance of the information. 23 PRIVILEGE Mary Lou was driving her Ford 150 pickup home from a “girl’s night out” party with friends at Ruby Red’s Lounge. At the corner of Fifth and Oak, she hit a patch of ice, lost control of the truck and smashed into George’s Malibu, sending George to the hospital with internal injuries. George later sues Mary Lou for the injuries suffered, claiming that Mary Lou was drunk at the time, although when the police arrived at the accident, they had not given her a breathalyzer test and did not ticket her for being intoxicated—after all, Mary Lou is a pretty single girl and the young police officer was impressed with her smile…Mary Lou called the officer when she found out that she was being sued, and he suggested that she get an attorney. At the first meeting with her attorney, Henry, Mary Lou stated that she wanted to tell him everything as he “was now her lawyer and he couldn’t tell anyone what they talked about, could he?” She forthwith admitted that she had had 3 or 4 Margaritas at the bar, but had then eaten a steak sandwich, so she could not have been drunk—even though she had a couple of Brandy Alexander’s afterwards to settle her meal… George’s attorney send interrogatories to Mary Lou asking whether she had been drinking before the accident, where she had been drinking if she had, and how many drinks did she have over what period of time before the accident? Oh, oh. Mary Lou has innocently put Henry in a very delicate position because she told him facts about the accident which, if revealed during court, would at the very least, damage her defense. Mary Lou has seen too much television, as she is not correct with her assumption of the confidentiality of her statements to him. The attorney-client privilege protects any communications between the attorney and the client, themselves, from discovery. But the privilege does not protect a party from responding to discovery of facts about the case just because those particular facts have been told to an attorney. “The privilege protection extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question “What did you say or write to the attorney?” but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication with his attorney.” (Upjohn v. United States, 449 U.S. 383, 395-396 [1981]) While many may be querulous about such a fine distinction, actually it makes sense. If this were not so, Mary Lou could throw up a wall against providing any information on discovery, all she would have to do would be to tell Henry about it first. So Henry cannot disregard the facts that he knows about the case, even though it was told to him in confidence (Mary Lou thought). The factual responses are signed by the client, not the lawyer; Henry cannot take the chance on perjury by filing answers that he knows are not true. (This is so stated in the ABA Rules of Professional Conduct, 3.3[a][4]) The only ethical thing that Henry can do is to explain the situation fully to Mary Lou that he will have to reveal what she told him, or else he will have to withdraw as her attorney. 24 The best response to this situation would be, of course, for Mary Lou to use another lawyer and be careful what she says to him. This situation has arisen numerous times, to be sure, which would indicate that at the very beginning the attorney-client privilege protection must be explained in detail. Assuming that Henry stays on as Mary Lou’s attorney and at her deposition George’s attorney asks her “Didn’t you tell your attorney that you had several Margaritas before a light dinner, and then had two Brandy Alexander’s afterwards?” Henry objects based on the attorney-client privilege. Does this privilege still apply? Yes, because Henry’s conversation with Mary Lou in the course of his representing her, is protected, otherwise few people would ever want to hire attorneys… Therefore, George’s counsel cannot inquire about what Mary Lou told Henry to determine whether she told him something different from what she may have told at another time. STUDY QUESTIONS 1. According to the Federal Judicial Center, the most often used discovery device is A. Document production. B. Deposition. C. Expert Discovery. D. Initial Disclosures. 2. Discovery is conducted by A. the court. B. the attorneys at settlement conferences. C. by arbitration panels. D. by the parties. 3. FRCP 26(b)(1), states in part, “Parties may obtain discovery regarding any matter, not privileged, that is A. relevant to the claim or defense of any party…” B. outside of the scope of possibility of settlement…” C. criminal in scope.” D. irrelevant to one party’s claim only…” 4. Relevant information is discoverable A. unless limited by the court. B. irrespective of any attempts of limitation by the court. C. only if it supports the plaintiff’s contention in its entirety. D. unless the defendant or his counsel voice displeasure. 25 5. The court may enter a protective order limiting discovery A. only if the burden of expense is too extreme in relation to the recovery sought. B. only in severely flawed cases, otherwise they will be overturned. C. provided both parties agree to the limitation, in writing. D. for various reasons, including protection of private and intimate facts which should re main private, possibility of it annoying or intimidating an opponent, etc. 6. Discovery is limited to information that A. would be admissible under the rules of evidence. B. would not be admissible under the rules of evidence. C. is not contentious to either party. D. is easily and inexpensively obtainable. 7. In a case where the plaintiff is asking for damages, including loss of income, because of the negligence of the defendant, the defendant asks for the business income tax returns of the last 5 years and the personal income tax returns of the plaintiff. Because there is financial information that could hurt the plaintiff’s business, the plaintiff’s attorney offers to furnish figures from the income statement and any 1099 self-employed tax forms. A. The defendant may obtain the full financial statements and the court would so rule. B. The court would rule that because of privacy, the plaintiff need not provide any financial information whatsoever. C. The defendant’s attorney would probably accept these figures as it would probably be difficult to prove to the court that they needed anything more. D. The law plainly states that no party, under any circumstances, are entitled to the personal financial information of any person or corporation. 8. A court made an important ruling where in a sexual harassment case, the defendant requested that the plaintiff reveal the names of all men that she had sexual relations with over the past 5 years, the defendant maintaining it was crucial to their case. The court probably would rule A. that while there is little doubt that often intimate information must be produced during the discovery process, whatever the information is worth, it cannot be equal to the intrusion of privacy of the plaintiff. B. that this information must be produced as it was relevant. C. that the information requested should be produced but only the judge and the jury should have access to the information. D. that the information is not private, indeed, it could be released to the press. 9. In respect to privilege, the privilege protection extends only to A. facts of the case. B. the defendant. C. communications, and not to facts. D. all areas of relevancy in the case under question, except communications. 26 10. In a deposition, the deposing attorney strongly suspects that the deponent had passed on information to her attorney that is completely different from what she now is deposing, therefore A. the deposing attorney can require the deponent to testify about what she said to her attorney. B. the deposing attorney can only obtain this information is it is presented in written form and is signed by both the deponent and her attorney. C. regardless of how he tries, the attorney-client privilege remains and her objecting to answering the question would be upheld by the court. D. the deponent must answer but only the court reporter and the deposing attorney may be present during the response. ANSWERS TO STUDY QUESTIONS 1A 2D 3A 4A 5D 6A 7C 8A 9C 10C 27 CHAPTER III - DEPOSITION IN GENERAL A LOOK AT BASIC DEPOSITION PROCEDURES Depositions are without a doubt a very important part of the discovery process. Because it is so important, it is worthwhile to explore this important area right from the beginning. While some of it is “Basic Law 101,” it discusses how the system works so that it can be easily explained to a client who is a layperson and has not had an in-depth discussion of this subject. NOTE: Of course there may be two (or more) lawyers at a deposition—although only one is really needed, the deposing attorney—and sometimes not even one. This section of the text assumes that the attorney reading this text represents the deponent and the text is skewed in that direction. Educational information in respect to conducting a deposition and questioning a deponent is beyond the scope of this text and, it is assumed, has been covered in the basic legal education. However, in the case where a deponent client is being instructed on how to answer difficult or “trick” questions, there are suggestions for a deposing attorney although most lawyers are acquainted with these techniques. It should also be of help to a deposing attorney if they are aware of how an attorney for a deponent has instructed his client for deposing. A deposition usually consists of a lawyer or sometimes a pro se litigant (non-lawyer) asking the deponent questions. The deponent can be a party to a lawsuit or just a witness who has information related to the case. Depositions are usually informal and generally are held in a conference room with no judge present. Otherwise they seem to take on the bearing of a full-fledged trial as, for instance, the deponent will be placed under oath and testimony will be recorded and transcribed for an official court reporter. Depositions may be videotapes and this is discussed later in this text. Depositions, although informal, may be more important to the deponent than to the lawyers as it may be the only time that the deponent gets to testify. Good lawyers will prepare as carefully for a deposition as they do for a trial. Depositions should not be taken lightly as they can have a huge, major impact on a trial or on the eventual resolution of a dispute. Deponents must be carefully instructed to take the deposition seriously and to be as careful and as accurate in giving their testimony as they would if they were before a judge and jury. NOTICE OF DEPOSITION Before a deposition is given, written advance notice must be given to the deponent by the deposing party, giving time and place. The deposition process actually starts when the notice is given. There are two types of notices: If non-party witness or a by-stander, they will be served with a “Subpoena re Deposition.” A subpoena is a court order requiring a person to show up for deposition. If the individual is a party (plaintiff or defendant) then the deposing party will arrange for a deposition by mailing to either the deponent or his attorney, a “Notice of Deposition.” There is 28 no subpoena necessary to require a party to attend the deposition. There are formats for the Notice and the Subpoena that are used and accepted by custom or rules in that area. Basically, they list the names of the plaintiff and defendant, the person to whom the notice is presented, place, date and time of deposition and if documents are required, they are so identified. It is dated, with the issuing officer’s signature and title. Proof of Service then follows with date served, place served, person it was served on, how it was served, and who served the subpoena. If a person does not comply with the deposition notice, they can be sanctioned by a judge for failure to appear at a time and place set forth in the notice. The sanction can range from a fine that has to be paid to the adversary, or to dismissal of the legal claims or defense. Subpoenas are court orders and if a non-party witness fails to obey a Subpoena re Deposition, they can be held in contempt of court and the court can issue a bench warrant for the arrest of the ignoring witness. If the witness if found to be in contempt, they can be required to pay a hefty fine. Generally, a non-party witness cannot be forced to attend a deposition more than 100 miles away from his home or place of business. (FRCP 45[c][3][A][ii]) Parties may have to submit to depositions further away. The deposition must give a “reasonable” advance warning that the deposition is to be taken. (FRCP 30[b][1]).After notice has been received, then there is a 30 day period to respond in Florida (1.310[a]). This date can be extended by the court if there are extenuating circumstances. Florida requires a 20-day period before trial as the deadline for notifying all parties of pending litigation and before the hearing. (1.290[a][2]). In Florida, the specific wording in the rule 1.310(b)(1) governing notification of deposition: “A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not know, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced under the subpoena shall be attached to or included in the notice. NON-EXPERT WITNESS FEES The parties to the action are, of course, not entitled to any fees for testifying at a deposition. Non-party witnesses can be paid, but generally it a small amount, such as $40 plus mileage at the rate of around $.30 per mile. Usually this is paid by check that is attached to the Subpoena re Deposition. Otherwise the deponent may claim his fees from the person who serves the Subpoena, and if not paid then, then they may claim the fees prior to deposition, and if not paid at that time, they may refuse to testify until the fee is paid. 29 RESCHEDULING The deponent has the right to reschedule and this can usually be accomplished by contacting the attorney shown on the notice. Deponents who are asking for rescheduling would be wise to suggest other more acceptable times or places. As a general practice, attorneys will go along with the request, because if they did not, they may have a contrary or antagonistic deponent and the deposition is that much more difficult. An attorney should tell a client who is being deposed, if the arrangement for the deposition has to be changed, that such a request should be in writing, even if permission to reschedule had been received by telephone. If a written explanation does not suffice, then the deposing attorney may go to court and ask for sanctions for the individual. If there is the slightest chance of this, a protective order may be issued, rescheduling the deposition. As to location, Florida rules (1.410) provide that a deponent may be subpoenaed for examination only in the county in which the deponent resides or are employed. If the litigation is to be held in Florida and the case is serious enough and/or the deposition is important to the case, the deponent may be offered to be reimbursed for any expenses incurred in traveling to Florida for the deposition. If the individual still refuses to come to Florida, then an attorney in the state of residence may subpoena the deponent—although it should be noted that the deponent can ignore the subpoena or just not show up. The deponent’s attorney may wish to move to quash the subpoena and usually judges will allow it. DON’T WANT TO A non-party witness sometimes feels that they don’t want to be deposed and should not, therefore, have to testify in any manner. Sometimes they may have a good reason; such as if they actually know so little that a deposition is a waste of everyone’s time and money. If that happens, the non-party witness or their attorney should get together with the attorney who issued the Subpoena and discuss the matter informally. An attorney does not want to get into a situation where everyone loses time and nothing of interest is gained. However, if the other’s attorney wants to continue with the deposition, the witness may refuse to appear for the deposition, but if they do so, they may be held in contempt of the Court. If it appears that the witness is right and that there is nothing to gain by the deposition, then applying for a protective order would be the next step. DURATION FRCP 30(D)(2) limits the deposition to one day of seven hours, unless the time is extended by the court or the deponent agrees to a longer deposition. The 7 hours does not include breaks for lunch, stretching, etc. If it is a non-party deposition, the time can be extended to more than 7 hours if all parties agree or if by court order. The deponent does not have the power to prevent the parties from agreeing to an extension of time. 30 If the deposition is going to last more than one day, the deponent is not required to be deposed every day continuously, as for good reason, they might be deposed one day a week, or some other period of time acceptable to the parties involved. If there is a good and sufficient reason for the deponent to shorten the time of the deposition—for instance, a doctor with waiting patients, then the attorney representing the deponent should make every effort to accommodate his client. If the deponent just gets up and walks away before the deposing attorney has completed the deposition, the attorney may ask a judge for a contempt order. In any event, if the deposition turns into a lengthy fishing expedition, then it is time to get a protective order from a judge after raising all of the objections to the length of time involved. Whether or when to object to lengthy depositions is a matter of experience and knowledge of depositions (and judges). WHO ATTENDS A DEPOSITION Depositions become “old hat” to many lawyers and often they forget that to their client this is a new experience and can be a little “scary.” Before any deposition, a lawyer should go through the procedures with their clients and tell them what to expect and why they have been deposed. The deponent may feel rather lonely, even though depositions are usually taken in a conference room, still if one is aware that what they say is written down and sworn to and there may be a possibility that they will have to go to court and verify what they have said in the deposition, then there is a certain amount of angst. A person can be compelled to attend a deposition scheduled by another party and also, unless barred by court order, they can attend other depositions in the case—the deponent should always do so if they are a pro se litigant. Besides wanting to know how the lawyers are spending their money, a party can voluntarily attend a deposition if they want to lend moral support to a deponent who supports the party’s views and versions of what happened, or simply because they are a friend or a family member. For example, if Mabel and John are bring suit against another driver who rear-ended their car and caused personal injury to Mabel, John—being a witness to the accident—may want to sit in on Mabel’s deposition, particularly if John was a passenger in the car at the time it was rearended. There can be even more compelling reasons for a party to witness a deposition, particularly if the deponent represents the opposing party, so that the party can study and evaluate their demeanor and how persuasive they are. If an expert witness is being deposed, it is an opportunity for the party to see whether their case will be hurt by the expert testimony, and even if they should consider a settlement if the expert witness is “strong.” Another situation may be where an attorney representing one of the parties to a case wants the party to attend the deposition of the other party so that their client can help with technical questions. For instance, if the case is about engineering failure to a structure and the attorney’s client is an engineer, then he would probably look to his client to interpret answers that the opposing party provides to his attorney during a deposition. The same could be said in cases of 31 sexual harassment or for wrongful termination, where the plaintiff is former employer and where their former supervisor is being deposed, as they could provide follow-up questions regarding the loan procedures of the bank. And, of course, if the party is a pro se litigant who is the deposing party or the defending party, they would have considerable interest in what the deposing party states. Certain persons will not be allowed by a court to attend a deposition, for instance a prisoner, or someone who has had a complaint filed against them for harassing or threatening the party, or the deponent is a business competitor of the party filing the deposition who could file information harming the party’s business. If a party objects to the appearance of another person, a competitor, for instance, they have to obtain a court order in advance of the deposition. That may not be the easiest thing to do as parties are presumed to have the right to observe all depositions so judges will usually not bar a party from attending the deposition if there are no other extenuating circumstances. EXPERT WITNESS AT DEPOSITIONS A party who has retained an expert witness has the right to bring the expert to the deposition so as to observe the depositions of other witnesses. The expert can suggest questions to the party who retained him and he would be looking for information to support his expert opinions. He can provide expertise to the party’s attorney if the other party is deposing their own expert in the field. He can suggest questions to the plaintiff’s attorney based on areas of weakness of the deposition of the other expert, of even if the other expert is basing opinions on information that is not known to the plaintiff. In a personal injury case, or a medical malpractice case, a medical expert representing the defense could be valuable in observing the plaintiff’s physical condition. WHY SHOULD THE LAWYERS BE PRESENT? There may be times when a lawyer is questioned by his client as to whether it is worth it for their attorney to attend all depositions, such as a deposition of a by-stander at an accident. It may seem like a waste of money to have to pay a lawyer for that time. The lawyer can do several things, actually, by being present at the deposition. They can make sure that the opposing attorney does not intimidate a witness into changing their story. As is well known, there are those people whose intention is good and are extremely helpful, but are at the same time, timid, and are good prospects for an overbearing attorney to get a story changed to suit the other party. By being present, lawyers can make legal objections to improper questions—indeed, that seems to be their primary function at times during a deposition. Objecting at time of deposition preserves those objections until time for the trial. This is discussed later in more detail. After the opponent’s lawyer finished with the deposition, then the other lawyer can also question the deponent. This would be done if the lawyer is trying to elicit helpful testimony that the opposing attorney either missed or misstated. A client may think that it is not that useful to point out discrepancies in the deposition of the adversary, or his missing an important point because after all, it will be taken care of during the trial. But what if there is a chance to settle be- 32 cause the lawyer has brought out additional favorable information during a deposition? The results of a deposition can go a long ways towards a suitable settlement in many cases. However, if the lawyer decides that a witness has very little, if any, information about a case, the lawyer will not defend a deposition taken by the opponent, thereby saving the client perhaps thousands of dollars for not paying for the time it takes an attorney to attend depositions. Actually, if the party wants to find out what a deponent had to say, all they have to do is to purchase a copy of the deposition booklet from the court reporter. They are always happy for the additional income. ATTORNEY FOR NON-PARTY WITNESS? In most cases, a witness does not need an attorney and the attorney for the party that he is witnessing for will provide assistance if it helps his case. However, non-party witnesses may want to have legal representation if they are concerned that they may be a defendant in a later civil trial because of something that they witnessed and testified to. As an example, an individual worked for a garage and the owner of the garage is being sued because of shoddy workmanship in repairing an auto that caused the owner of the car to be injured in an accident. The mechanic was called to testify by deposition as to what was done to the car and what could have prevented the failure of the auto to perform as it should, leading to the accident. The mechanic was aware that the garage owner insists that they use inferior parts in order to save a few dollars, something the mechanic had argued about with the garage owner in the past. The mechanic would be wise to have an attorney, as there is a possibility that he could be sued by his employer if he testifies honestly. He also feels that he might be called as a party to the original suit because he had worked on the car, knowing that the parts were inferior. As another example, assume that John, one of the mechanics had complained about the inferior parts in front of Bill, another mechanic. The owner of the garage fired John on the spot and refused to even investigate as to whether the part that John complained about was deficient. John sued the owner for wrongful termination. The owner claimed that John was fired because of insubordination and dishonesty, claiming John took some tools when he left. Bill is required to testify as he was John’s immediate supervisor, and his boss insists that Bill lie just a little and back up his claim of insubordination and theft. Bill would probably want to have his own lawyer present because criminal charges could possibly be filed against Bill in addition to his being pressured to lie by the employer. In these and many similar situations, an attorney is necessary if the individual witness does not want to get into trouble. The lawyer can, if nothing else, advise the person of his 5th Amendment right not to answer a question that could incriminate him. 33 OTHERS ATTENDING A DEPOSITION The Court Reporter Lawyers are used to court reporters, but laypersons are not. Therefore it would be wise to make sure that the person giving the deposition is fully aware of who the court reporter is and what they do. Obviously, the court reporter places the deponent under oath, which could cause some concern if the deponent was not aware that they would be under oath and who would administer it. The principal duty of the court reporter is to record all questions, answers and comments. After the deposition has been duly noted, in a matter of a few weeks, the court reporter prepares a booklet, the deposition transcript. The court reporter may also videotape the proceedings (discussed later), but in some cases, a video operator will be present. There are lawyers who have made the mistake of assuming that their client can give a deposition with no problem, only to find out that the client experiences a form of stage fright, and after being sworn in, they become so rattled that sometimes cogent statements are beyond the ability of the deponent. Attorneys have become very upset with their clients when this happens, but the fault lies with the attorney. Preparation, preparation, preparation. Judges Judges very rarely attend a deposition. Even when it is felt by the judge that perhaps they should be present, they will instead appoint a “special master” (or “referee”) to represent the judge and to preside over the deposition. This can happen if one of the parties complains to the court that their opponent has failed to follow proper deposition procedures, often more than once. If the judge feels that this is a legitimate claim, then the special master will attend future depositions. Their duty will be to enforce proper procedures. The judge will also decide who pays for the special master. Friend or Relative A friend or relative can tag long to a deposition for emotional support of the deponent. This is allowed specifically at trial, and according to the Rules (FRCP 30[c]) deposition trials are supposed to proceed as permitted at trial. Even if there is a question whether a friend or relative attendance is proper, usually attorneys will not object. Of course, if the deponent is a child or a crippled person or infirm, or for some other reason has difficulty in testifying without another person to support them being present, then there is no question that they will be allowed to attend. The only thing is that the companion may not help the deponent answer questions. A caution that the client that is going to depose or testify must heed if there is a companion present, and that is they must be extremely discreet about what they discuss with their companion. They should not discuss the trial in any detail at all, as the companion could be called as a witness if the deponent says something and the opposing counsel wants what was said to be part of the deposition. While there is attorney-client privilege and there also is spousal privilege, 34 there is no “friend or relative” privilege, so any discussions between the deponent and a companion can be fair game. Others Other potential witnesses in a case have a right to attend depositions. If, for instance, an employee sues a former employer for sexual harassment, the employee’s immediate supervisor may attend the employee’s deposition, even though the supervisor will probably be called as a witness. Sometimes, but not often, even the press or members of the public, may attend a deposition. Judges have the power to issue protective orders to prevent potential witnesses, the press, or the general public from attending a deposition. This has really become known to the general public in recent years when a sitting President of the United States was deposed. If the judge had not issued a protective order, one can imagine the circus that would have been—even a greater circus that what evolved. BRINGING OTHER STUFF This will be covered in detail later, but basically a Notice of Deposition or Request to Produce Documents for the parties, or a Subpoena Duces Tecum re Deposition for non-party witnesses, may demand that certain records or documents accompany the deponent. This will be expanded upon, particularly in the discussion of interrogatories, but basically the deposition notice may state similar to as follows: “Deponent Bill Smith is to bring with him to the deposition the following documents and records: All reports, memoranda, records or documents of any kind in the (employer’s) possession relating to the automobile repair of Joe Green.” If the notice is clear as to what is to be brought to the deposition, then the deponent simply shows up with the documents. If originals are brought, then the deposing party is not entitled to the originals (unless so ordered by the court) so if the deposing party wants a copy of the document, they must return the original document to the deponent. Document requests may be improper under discovery rules, and/or some may be privileged. This will be discussed in a later chapter. FINAL REVIEW Within a short period of time, usually days or few weeks, after the deposition has been made, the court reporter will produce a written transcription of the deposition testimony which the deponent must review, correct and return within a specified period of time. This will be discussed in more detail later, but another word of caution. A good attorney will go over the deposition in detail with the client so that during the trial, there will be no surprises. There have been situations where a cursory examination of the deposition failed to reveal an inaccuracy or misstatement of the deponent, but the opposing attorney picked up on that detail with disastrous results in court. 35 PREPARE TO BE DEPOSED If problems with depositions arise, often it is because the attorney has addressed the client who will be deposed in the manner of “I need you to let a lawyer ask you a bunch of questions under oath and that will help you to (win the suit or defend against the suit).” Period. Deponents need to be informed of what to expect and how to handle themselves as they will find that they are lonely in the conference room, answering questions thrust upon them by some lawyer that they don’t know about stuff they maybe hadn’t even thought about. True, their lawyer is there, but how come he is not the one asking the questions? Actually, there are three types of deponents: (1) a party represented by a lawyer (yes, some people actually depose without benefit of having their own attorney—such as an expert in some field important to the case); (2) a pro se litigant (the ones who do not have an attorney); and (3) non-party witnesses—someone who is not suing or being sued but is only a witness. REPRESENTED BY A LAWYER It has been said that attorneys follow idiosyncratic practices when it comes to preparation of depositions, but in any event the client needs to spend time with his attorney in preparation. A strategy can be established as how to get the deponent and his attorney, both, ready for the deposition. There is little chance of a deponent being overly-prepared, but there is always a chance that they could be under-prepared. If a deponent makes a mistake in their testimony because they were just too uncomfortable being “interviewed” or because of a “trick” question by the deposing attorney, that is the fault of the deponents attorney. So there should be a plan so that this does not happen. A deponent should never discuss the deposition with their adversary. Caution the client that under no circumstances should he discuss what he said at a deposition with the adversary. Perhaps an ego trip would occur, when the plaintiff sees the defendant in the corridor—never forget that these people probably know each other and are on speaking terms— and he says something like, “I told them about that time that you and I (whatever) so you better be prepared for a rough time if you are going to go ahead with this suit.” Has happened, sometimes the client thinks that is the thing to do—to scare the pants off his opponent so maybe he will have second thoughts about continuing, or maybe he will agree to a settlement. Whatever. Obviously, all that happens—except maybe massaging the ego a little—is that the opponent now knows what to expect at trial. And further, even a courteous request might be misinterpreted by the opposing counsel as an attempt to intimidate the adversary or even to evade discovery. This is a basic rule of evidence—rules generally forbid parties from discussing or even mentioning settlement negotiations, offers or counter-offers at trial. It must be impressed upon the deponent that in order to avoid the slightest possibility that a casual comment might be construed as a settlement discussion, all communications must be between the attorneys. Inform the client that they should “play-like” they do not know the other party and bad things will happen if anything is said between the client and his opponent. 36 MEETING BEFORE THE DEPOSITION There should be a pre-deposition meeting in order to “get all the ducks in a row.” Preparation for depositions are routine and legitimate, and if the deponent is asked at the deposition if he met with his attorney before the deposition to go over the testimony, make sure that the client answers truthfully and it is OK to have done so. At the meeting, this is the time that the attorney will inform his client of what will happen at the deposition with as much detail as the client can handle so there will be no surprises. This is the time to review (again) important documents that can affect the case or are pertinent to it, and about which the client will probably be asked. Instructions as how to answer to a question are important—do not volunteer information, be polite, don’t joke, just answer the question that was asked, don’t anticipate a question and try to answer it before it was asked, etc. Often, the attorney will actually go through a “trial run” and ask questions that he feels are sure to be asked by the deposing attorney. What is considered as “important” can be emphasized so that the deponent can expect those questions to be asked, but again, the deponent cannot anticipate the question during the actual deposition. It may be suggested that the meeting be held a day or two before the deposition, for the benefit of both the deponent and the attorney, as it brings them both up to speed—particularly if there have been any recent events that could affect the case. On the other hand, if the client is anxious about the deposition, it might be better to meet earlier so that the attorney can put any anxieties to rest. DOCUMENTS If the notice of deposition asks that certain documents be brought to the deposition, then it is important to review those documents with the client to make sure that the contents are well known to both the attorney and his client. Also, one or more of the documents may be privileged (discussed later) so it might be better to refuse the request. Sometimes the notice is so vague or broad that it is unclear as to what document is being requested. Since it actually is the responsibility of the client to produce these documents, the client must be aware of exactly what is being asked. For instance, does “all documents, memoranda and records” pertain to e-mail? The attorney may be able to find out exactly what is requested, or refuse to provide the documents because the request is too vague. This is what the attorney is paid for, and while the client will furnish the documents, it is the job of the attorney not to prolong the deposition by not having the deponent bring the proper documentation, and at the same time making sure that it is all not a fishing expedition. It is important that the deponent does not read or review any documents in preparation for the deposition until he has consulted with his attorney. 37 Okay, so it is hard for a person that is asked for a document in their possession, not to read the document as soon as they get the request to produce it—it is just human nature. However, one of the questions that the deponent is likely to be asked at a deposition involving documents would be similar to “Before appearing at this deposition, did you review any documents in preparation for the deposition?” If the answer is “Yes,” then the deponent will be asked to identify all of the documents that he looked at. The other party has the right to see these documents, all of them. This is a proper demand as the rules of a deposition require the deponent to provide to the other party, all documents used to refresh their memory. In some states, they could even be forced to turn over what would be otherwise a “privileged” document, which is excluded from discover disclosure. This is why the deponent should not review documents before talking to his lawyer. “PRO SE” LITIGANTS A “pro se” litigant is a deponent who is without legal counsel, therefore it outside the purview of this text. How many times are plumbers called to fix a leak after a homeowner tried to repair it himself, or a mechanic repairing an automobile that the owner had tried to repair and now the car won’t run at all… This certainly can happen when a layman receives a Notice of Deposition and tries to abide by the requests. Many panic when they realize that some of their “private” correspondence will be made public. In any event, an attorney should be aware of how to “rescue” deponents from their concerns. If the individual just does not want the expense of having an attorney represent them at the deposition, there are books available that can lead them through the procedure, step-by-step. NON-PARTY WITNESSES Usually, non-party witnesses are not represented by counsel at the deposition for the simple reason that they are unwilling to pay for legal representation when they have nothing to gain or lose from the outcome of a lawsuit. This is not true all of the time and a lot will depend upon the type of non-party witness being deposed. If the witness is totally disinterested in the outcome of the trial, as perhaps they only saw a part of an event or an accident, they have no relationship or allegiance to either party, and they want no involvement than what is absolutely necessary. Rarely is an attorney needed. On the other hand, a witness may be interested in helping one of the parties, perhaps because they feel strongly that one party is in the right and the other party is wrong and they want to help the “right” party. Perhaps they are acquaintances of a party, members of the same church or school parent’s organization, a co-worker, a girl/boyfriend; they are involved in a business that could be adversely affected by the outcome of the trial, etc., ad infinitum. Sometimes they feel so strongly about the income that they are willing to have legal representation at the deposition so that they do not do or say “something wrong” or would give ammunition to the adverse party. If the outcome could have an effect on a business, for example, a non-party witness would want his attorney present. 38 Another type of non-party witness nearly always has legal representation—where they are afraid they could be named as a party to the suit because of something they may have to say or testify to at the deposition., In some cases, they may be afraid that they could face criminal charges. SUBPOENA DUCES TECUM A non-party witness may be served with a “Subpoena Duces Tecum Re Deposition” which will require the witness to bring documents specified in the subpoena to the deposition. Even though the witness is a non-party, the deposing party has the right to ask for the witness to locate pertinent documents and bring them to the deposition. However, the subpoena may be too broad or too vague and therefore improper, or it may ask for documents not within the possession or control of the deponent, or it could be requesting privileged documents. The non-party witness has basically the same rights as parties to the action in respect to providing or withholding documents. However, the Subpoena Duces Tecum is a court order and must be treated as such. Any withholding of documents or unreasonable failure to comply with the subpoena could result in contempt of court and the deponent could be required to pay the other party’s expenses for going to court to obtain an order requiring the deponent to comply with the Subpoena. A non-party witness would probably be foolish to not retain legal counsel when served with the subpoena. ‘WHO CARES” WITNESS The witness could easily have no interest whatsoever in the outcome of the case because they, or anyone close to them, have nothing to gain from the outcome; nor do they feel any kind of affinity for either of the parties. Usually, these people do not require legal counsel, but if they are wealthy, or in the public eye, they may certainly require legal counsel. In any event, the deposition of these types of witnesses is usually kept to an absolute minimum. Typically, they only have to gather the documents that are requested, and then show up at the site of the deposition. They do not have to refresh their memory or talk to either of the parties or their attorneys. Once in a while, a disinterested witness will go to a deposition and recognize one or the other of the parties and strike up a conversation. The attorney for the party who would benefit from the testimony of that witness, has a job to “put a lid on it” before the entire deposition is rendered worthless if too much is said. Example: Jim is delivering bottled water to Brad’s Gym when he witnesses one of the club members pushing another member out of the road in a hurry to use one of the weight machines. The pushed member was injured when he fell against the machine, and he is suing the club and the member who pushed him. Jim is called as a witness and is asked to bring with him his delivery receipt to verify that he was present in the gym at the time of the occurrence. Probably, Jim would just bring his delivery receipt and be deposed as to what he saw. There really would not be any reason to have his attorney present, however since his employer is peripherally involved, the employer may want their legal counsel to be present. Assume, just for fun, that when Jim enters the site of the deposition, he realizes that he knows one of the parties as he had visited with him at O’Malley’s Bar & Grille that day during 39 lunch, when they were both toasting St. Patrick’s Day. Jim innocently walks up and greets the party and says, “Remember we met at O’Malley’s Bar on St. Paddy’s day at lunch on that day. Just now recognized the name. How are you doing?” And, of course, the opposing counsel of the man that Jim had met heard the conversation. Guess what? The whole trial could hinge on these innocent words—how much did Jim and the party to the trial drink that day? When did the party leave the bar? Was he inebriated when he was pushed? And so on and so on… INTERESTED NON-PARTY WITNESS On the other hand, an interested non-party witness may require an attorney to be present at the deposition, depending upon how “interested” the interested non-party actually is. If a spouse is a plaintiff in a case and the other spouse is a witness, they are interested nonparty witnesses. Or one of the parties is a next door neighbor, a member of your club or lodge or organization or church, or an old school-chum, or one of your best customers, etc. These situations are cut-and-dried, but what happens when a witness takes upon themselves to become involved. For instance, the witness saw three Muslims leave their mosque and accost a young person holding a sign that read “Go Home and Take Allah With You.” One of the Muslims tore the sign out of the youngster’s hand and started to beat him over the head with it. Another of his friends kicked the young man and the other Muslim started hitting him in the body until the young man collapsed. The witness had a brother that was wounded in Iraq, and while being a Muslim himself, he strenuously objected to the actions of the more militant Muslims. He felt that that Muslims so involved should be severely punished. Little doubt that that witness would be deposed, and there is little doubt that he should be represented by his own lawyer. He should visit the scene in front of the mosque with his own attorney. He may be able to talk to the attorney for the young man and ignore the attorney for the other Muslims – although his attorney should be present during any such conversations, and he may, depending upon the situation, instruct his client not to talk to anyone. If the witness does discuss the details with the attorney for one of the parties, he can be required to answer questions about those discussions during the deposition. It sometimes is just difficult to keep someone who is a witness and is emphatically in favor of one side of the litigation, from talking to those he feels he should support, but an attorney that is doing his job would keep his client “clean” on discussions with either party. It should be stated that there is no legal or ethical problem with a non-party witness meeting with or talking to a lawyer for one or both of the parties, or an unrepresented party. Sometimes innocent non-party witnesses create problems by trying to conceal perfectly legitimate meetings, particularly if they are not themselves represented by counsel. To make matters worse, if the witness feels that he should not have talked to one of the parties, when asked by the opposing counsel if he had talked to the other party, he would say that he had not. This would at least impair his credibility and could hurt the case of the party he was trying to help. NON-PARTIES WHO MAY BECOME PARTIES Many times people, who had really not given much consideration to hiring their own attorney, feel differently if they are in the situation mentioned earlier, when they think that they may 40 become a party to the litigation because of what they are going to have to reveal at the deposition. In those cases, the deposition is handled just as if the non-party is a party, and for instance, they must communicate with the deposing party only through their own attorney. The biggest difference in preparing a non-party witness who is concerned about becoming a party and preparing a party for deposition is delving into the reason that the non-party witness feels that they might become a party to the litigation. The attorney may plan ways to avoid any testimony that would affect his client personally, to perhaps de-emphasize the role of the non-party witness, or other such tactics in order to protect his client but at the same time have the client answer questions truthfully. One situation that arises sometimes is where an employee testifies as to a situation involving his employer and where the witness has any kind of supervisory position. Example: Sidney is the Supervisor for Acme Paving Co. Sidney was on the job when a driver on one of the asphalt laying machines fell to his death under the roller. The driver’s family has sued Acme, and the local County Prosecutor’s office is investigating to determine if there were any criminal acts committed. Sydney is being deposed to testify as to the occurrence. Acme Paving will be represented by an attorney who will also act as counsel to Sidney. However, Sidney should certainly consider hiring his own attorney. This is a very serious situation, and being in a supervisory position and at the scene at the time, it is entirely possible that the blame may shift from Acme to Sidney, or they could be both found culpable. There is a good chance that Sidney will be named in the lawsuit. There is also the possibility that Acme may try to shift the blame from the company to Sidney, in which case the company’s attorney may not adequately represent Sidney—if at all. The company attorney is there to protect the interests of Acme, not Sidney. STUDY QUESTIONS 1. Before a deposition is given, A. a request must be made to the court for permission. B. all other requests for information must have failed. C. a bond must be posted by the deposing party. D. notice must be given to the deponent, giving time and place. 2. Depositions maybe more important to the deponent than to the lawyers A. because there is no legal expense involved with depositions. B. as it may be the only time that the deponent gets to testify. C. as it thereby guarantees that the deponent will not have to testify in court. D. because lawyers cannot become involved to any degree in a deposition. 41 3. Non-expert witnesses to a deposition A. cannot be paid. B. cannot be sworn in before they testify. C. can be paid, but usually it is a small fee. D. cannot be deposed. 4. If a witness refuses to be deposed A. then that is the end of the matter as there is no legal action that can be taken. B. they can be jailed until they decide that they will be deposed. C. they can be held in contempt of court. D. the witness can be compelled to testify only if they are friendly witnesses. 5. Unless the time is extended by the court, under FRCP 30, a deposition is limited to A. two 12-hour periods. B. only one deposition per week for each party. C. one day of seven hours, excluding lunch, breaks, etc. D. five hours per deposition per party. 6. When an attorney is going to take their client through a deposition, the attorney should first A. instruct their client to “take the Fifth” on any question other than identifying questions. B. put into writing their legal fee for the deposition, and get a written approval. C. go through the procedures with their client, telling them what to expect and why. D. try to convince their client that it is no “biggie” and they can pretty well ignore questions. 7. Sometimes a client questions why their attorney should be present at a deposition if they are not going to be the deposing attorney, but they should be informed that the attorney can do several things at the deposition to help them, including A. making sure the deposing attorney does not intimidate witnesses and they can make legal objections when it is appropriate. B. threatening the deposing attorney if they get too personal. C. object to each and every question asked so that the deposing attorney gets very little worthwhile information. D. intimidating unfriendly witnesses by staring at them and warning them that they should give very careful thought before they answer any pertinent question. 8. Mary is going to give a deposition as a friendly witness but she is elderly and quite “nervous” and she wants her housekeeper and companion, Betty, present for moral support. A. She would not be allowed to have anyone present at the deposition except those being deposed and their attorneys and the court reporter. B. Not only can Betty attend, she may answer questions posed to Mary if Mary is too nervous to answer the questions. C. Betty may attend but she may not help Mary, as a deponent, answer questions. D. The deposing attorney must swear Betty in also, and then depose her in the areas of how Mary had answered the questions accurately. 42 9. A deponent should never discuss A. the deposition with their adversary. B. the deposition with their own attorney. C. how they should answer questions, with their attorney prior to the deposition. D. anything that could hurt their case during the deposition, even if asked directly. 10. It is important that the deponent does not read or review any documents in preparation for the deposition A. until all legal fees has been paid. B. and in any event, he should never let his attorney know that he has done so. C. until he has consulted with his attorney. D. unless he destroys the documents immediately thereafter, prior to the deposition. ANSWERS TO STUDY QUESTIONS 1D 2B 3C 4C 5C 6C 7A 8C 9A 10C 43 CHAPTER IV - VIDEOTAPED DEPOSITIONS Sometimes it will be necessary or desirable (or both) to videotape a deposition, usually because a videotape of a deposition will have a greater impact on a judge or jury, than the reading of testimony from a transcript. Sometimes it can be used to control “obstreperous” lawyers. If the opponent’s lawyer is known to try to, for instance, bully a deponent (particularly a friendly witness) it is handy to have a camera to capture the lawyer’s tone of voice and also the nonverbal behavior. If such behavior continues, the video would be more compelling than a written transcript in asking a judge to sanction the lawyer, or even in prohibiting the lawyer from using the deposition in trial. It should always be remembered however: Regardless if a deposition is taped or transcribed, the deponent will be under oath. FRCP 30(b)(2) and Florida Rule 1.310(b)(4) authorize parties to videotape depositions. Florida Rule 1.310(b)(4) states: “4) Any deposition may be recorded by videotape without leave of the court or stipulation of the parties, provided the deposition is taken in accordance with this subdivision. (A) Notice. A party intending to videotape a deposition shall state in the notice that the deposition is to be videotaped and shall give the name and address of the operator. (B) Stenographer. Videotaped depositions shall also be recorded steno graphically, unless all parties agree otherwise. (C) Procedure. At the beginning of the deposition, the officer before whom it is taken shall, on camera: (i) identify the style of the action, (ii) state the date, and (iii) swear the witness. (D) Custody of Tape and Copies. The attorney for the party requesting the videotaping of the deposition shall take custody of and be responsible for the safeguarding of the videotape, shall permit the viewing of it by the opposing party, and, if requested, shall provide a copy of the videotape at the expense of the party requesting the copy. (E) Cost of Videotaped Depositions. The party requesting the videotaping shall bear the initial cost of videotaping. While this is rather self-explanatory, certain points should be stressed. RULES Authorizing Either party may request that a deposition be videotaped, but the notice setting up the deposition must so indicate. The general rule is that the one who requests the videotaping pays for the service. In some places, a deposition may be both transcribed and videotaped, but the one requesting the videotaping will usually have to pay for both. 44 If the adversary arranges a deposition, then the party being deposed may request that the deposition be videotaped. If the adversary has arranged for a traditional deposition, the party being deposed can mail out a notice stating that the deposition will also be videotaped (and the party requesting the videotaped must pay the bill). Only the parties that are taking or defending a deposition can request videotaping. An officer of the court—a court reporter or some other person licensed to administer oaths— must be present throughout every deposition, whether transcribed or videotaped. If the deposition is being both taped and recorded, the officer usually supervises the videotaping and transcribes the deposition. Videotaping may be performed in conference rooms that are specially equipped; often attorneys who do a lot of deposing may have the facilities in their offices to videotape. Techniques “Smile, you’re on Candid Camera!” Many factors can affect the impression that a deponent can give a judge or jury as to credibility. Credibility can be affected by whether the deponent is better shown in a close-up or from further away. It may be wise to make sure that the attorney doing the deposing be shown in the video, along with the deponent’s attorney—in order to avoid obvious coaching. On the other hand, using artificial means such as filters, may not be used as rules generally state that appearance or demeanor of a deponent or an attorney shall not be distorted through camera or sound recording techniques. Otherwise, if a deponent has a physical problem, such as a facial scar, they may request that the officer set up a camera so that it will not draw attention to the problem Statements for the Record Requirement When the cameras and all participants are present, the officer administers the oath and makes statements for the record, such as the officer’s name and business address; the date, time and place of the deposition; and the names of the deponent and all other persons present. When the questioning has been completed, the officer states for the record that the deposition is complete. The deponent may ask to review the videotape and make any necessary corrections. WHY VIDEOTAPE? To Perpetuate a Friendly Witness’s Testimony If a friendly witness can help the case and is willing to discuss the case only informally, and if there is good reason to believe that the witness may not be available to testify in court, then videotaping the testimony may allow the testimony to be presented to a judge and/or jury. Generally, a videotaped testimony on a courtroom screen will have a greater and more effective impact on the judge or jury, than just reading the transcription. 45 One question that should be raised is whether the case is, definitely, going to trial. Otherwise the fact that a testimony was videotaped instead of transcribed has little effect on a settlement, so why go through the expense? Is there a chance that the deponent will be available to testify in person at a trial? If the deponent testifies at the trial, then there would, obviously, be no opportunity to use the video. If the videotaping is done “just in case” then the only reason not to videotape would be the expense. And, of course, if the total value of the case is so low that it does not merit the expense of videotaping, then forget the videotaping. An Adverse Witness’s Testimony Except for the possibility of trying to control an “over-the-wall” lawyer, usually it is not wise to depose a hostile witness, particularly since what the witness has to say will not help you one iota. There is one notable exception—if the adverse witness testifies to something that is different from the witness’s deposition testimony. The videotape would be a powerful weapon in discrediting the credibility of the witness. The problem is, though, that one usually will not know whether the witness will contradict the testimony—and if they do, in what fashion? Therefore, if the witness changes stories, the problem will be to find that exact question on the videotape quickly. Judges do not seem to appreciate the fumbling through a lengthy videotape in order to find a supposedly-contradictory testimony. The solution could be to convert the videotape to a CD-ROM in advance of the trial, whereby a bar code and index for each line of deposition testimony. This will work well, but usually it is rather expensive to do on the off-chance of impeaching a witness. If there is sufficient suspicion that the witness will produce contradictory testimony, then the expense is a judgment call. DISADVANTAGES OF VIDEOTAPING The first and major disadvantage to videotaping is, of course, the expense. Requesting a videotaping can add hundreds of dollars to the expense. One solution could be to request that the testimony be videotaped and not transcribed—yes, videotaping does cost more than transcribing, but one does not have to pay for both then—but conversely, one does not then have a transcription or printed copy of the testimony. While a videotape has its advantages, using it when citing deposition testimony in a pretrial motion, or to help prepare a witness for trial, etc., it is just not as convenient as a transcription. The other major disadvantage is if the “friendly” witness does not look “friendly” or believable on video, or perhaps does just not testify as strongly as hoped. If, for example, the witness appears nervous on camera (as many, many innocent people do) then it might be better just to read the testimony as hesitations or nervous motions or “fidgeting” does not appear in print. The solution to this disadvantage is trial preparation. 46 Tips for Taking a Videotape Video the practice session or “mock deposition” can give more than just “practice.” Looking at videos will give both the deponent and the attorney an opportunity to correct any visual flaws that may have not been noticed during the practice deposition. It could possibly be that if the witness just does not video well, and comes across as overly-nervous or uncertain on camera, then the videotaping might be halted and forgotten. Clothes Make the Man (or Woman) Obviously, how the deponent dresses has more of an effect in a videotape than in a transcription. The manner of dress does not have to appear to be “formal,” as, indeed, “overdressing” may create a “phony” or unbelievable atmosphere to those who are charged with understanding and believing in the credibility of the deponent. However, the deponent should be dressed appropriately in such a manner as to indicate that the witness is taking the deposition seriously and respects the legal system. Another “tip”—have a woman help to dictate or suggest what a female deponent should wear. ‘Nuff said. Value of Production Not all tapes are equal quality, so a check should be made to make sure that the tape and the taping equipment is of high quality. While one is not allowed to distort the appearance of a deponent or his attorney in a deposition being videotaped, it is permissible to ask to arrange the “scene,” such as being able to show only the deponent in the picture; or if there are two cameras, a split screen may show both the attorney and the deponent (this is not considered as a “distortion”). Three people have to be heard—the deponent, his attorney and the deposing attorney. Check on the sound quality to make sure that every utterance is clearly heard and understood. If possible, if there is more than one microphone, ask for the video taper to use a sound mixer which can control the volume of each speaker. And, of course, locate the microphones so as not to pick up any extraneous noise, or as little as possible, such as passing traffic, etc. Make sure the lighting is proper—if light is not adequate, your friendly witness may come across as a “demon from the dark world” or such. Remind the witness to always look directly at the camera, and to be, in effect, testifying to the camera. That way the deponent will be looking directly at the judge or jury when the video is shown in court. This is particularly true when a salient and important point is made and where the deponent needs to be understood and trusted. And there are other “tricks” that a professional camera operator can use, such as using multiple cameras, so that a camera can “zoom” in or out on a deponent. Zooming in on documents can be important also, even though it might seem a little dramatic. If there is any objections to the videotaping or videotaping techniques, try to get them settled prior to the taping by working out procedures ahead of time and then recite the agreement on the 47 record at the start of the deposition. There is always the chance with a disputed videotaping, that the judge might throw it out of court—another good reason to also have the deposition transcribed. Editing Usually, the parties have to edit videotapes before they are shown to judges or juries at trial. They are usually edited because some parts are redundant or inadmissible under the trial evidence rules. Before a judge can rule whether a portion of a tape is admissible or not, the judge and the adversary must be provided with a transcript of the part that the party wants to show. (FRCP 32[c]) Either an official transcript or an unofficial copy made from the videotape, can be used for this purpose. If it is felt that the adversary’s editing unfairly distorts the testimony—as an example, if the editing leaves out explanations or qualifying statements—that qualifies the portion that the adversary wants to show, then the judge should be asked that additional portions be shown, but the judge and/or jury would have to be provided with a written transcript of the additional parts. IMPROPER USE OF THE VIDEOTAPE There may be great concern that an adversary may use the video to embarrass or financially harm the client or the deponent. For example, if the client is in a highly competitive business, there may be genuine “trade secrets” that could irreparably injure the business if the video were to be made public. If a situation like this arises, then the adversary should be asked to stipulate (in writing) not to make the videotape available to unauthorized parties. This way, the adversary may be liable to the client for any damages he suffers as a result of the breach of the agreement. But what it the other party does not agree with this request? Then one must seek a protective order from a judge that specifies that the tape cannot be shared with unauthorized persons. This problem is more apparent with videotaped testimony as the risk of misuse is higher than with transcribed depositions, as videotapes can be copied as easily as transcripts, but the single showing of a videotape can reveal private information to numerous persons at one time. Disclosing of private information can be more damaging and/or embarrassing when the disclosure is in a visual medium. STUDY QUESTIONS 1. Regardless if a deposition is taped or transcribed, A. the deponent will be under oath. B. there can be only one attorney in the room at any one time. C. the costs of the deposition will be evenly split between the two parties. D. the only time the deponent will be under oath is during the court trial phase. 2. In Florida, if the deposition is videotaped, A. it cannot be transcribed. B. it may be transcribed, but at a later date. C. it shall also be recorded “steno graphically,” unless all parties agree otherwise. D. it may not be shown in court unless requested by the presiding judge. 48 3. Videotaping a deposition may be accomplished A. by the plaintiff only. B. by the defendant only. C. only by the request of the court. D. by either party by giving notice as to when and where the deposition will take place. 4. If the adversary arranges a deposition, A. then the party being deposed may request that the deposition be videotaped. B. the adversary is then the only one who can request videotaping. C. then both attorneys must agree to the videotaping. D. then the court must decide if video taping will occur. 5. One of the main reasons to videotape is A. it is cheaper than transcription. B. that only one party can videotape. C. that a person is not under oath. D. that a friendly witness may not be available for trial. 6. When considering videotaping a hostile witness, A. it usually is a good idea to get their thoughts on tape. B. usually it is not wise since their testimony will not help. C. the video-taper should try to tape the witness through a filter so that they will not look believable. D. the approval of the court will be necessary. 7. The major disadvantage of videotaping is A. other people can actually see the person being deposed. B. the opposing attorney(s) can make faces and create a carnival atmosphere. C. that nobody is under oath. D. the expense. 8. Another disadvantage of videotaping is A. it is difficult to find a technician than can perform the taping. B. video cameras are difficult to find and to operate. C. that a friendly witness may not look “friendly” or believable on tape. D. courts are reluctant to allow videotapes as evidence. 9. If there is disagreement between the parties about the videotaping or videotaping techniques, one should try to get these disagreements settled prior to the taping by working out procedures ahead of time, and A. take the agreement to court and let the judge decide. B. make a verbal agreement in front of at least 2 witnesses. C. recite the agreement on the record at the start of the deposition. D. if the parties cannot agree, sue each other. 49 10. Before videotapes are shown to judges or juries at trial A. they must be reviewed by an independent professional producer for quality. B. the judge must review the videotape in his chambers prior to trial. C. usually the parties have to edit the videotapes to avoid redundancy or evidence that is not admissible. D. the dialogue must be transcribed and given to the judge and the jury in written form so they can follow the videotape dialogue. ANSWERS TO STUDY QUESTIONS 1A 2C 3D 4A 5D 6B 7D 8C 9C 10C 50 CHAPTER V - USING DEPOSITIONS There are as many uses for depositions as there are chili recipes in Texas. Even after this text has been studied, where will be uses for depositions crop up that has not even been considered at this point. BEFORE TRIAL The chance of a court case making it to trial is scarcely better than winning the Lotto jackpot. Originally, depositions were not considered as being of much more use than as an aid to trial preparation and when viewed in this context, as a pretrial discovery “tool,” depositions would appear to be of little worth. However, this is looking through a straw as it misses the reason that depositions are so very important. One of the most important reasons that depositions are so important is that because the exchange of information during discovery in many cases, makes trials unnecessary. For this reason alone, the judicial system and the general public should stand and salute whenever a deposition is taken. SUMMARY JUDGMENT MOTION A summary judgment is a procedure whereby one party files a written motion in court asking for a judge to stop a lawsuit prior to trial. In order for the judge to issue a summary judgment, the requesting party has to be able to convince a judge that there are no factual disputes existing so the under the law that applies to disputed facts, the party asking for summary judgment is entitled to a ruling in that party’s favor. As an example, Horace’s home suffers severe foundation damage because of water intrusion, the circumstances of which are clearly excluded from his Homeowner’s insurance policy. Horace files a claim with his insurance carrier and was denied coverage because of the specific exclusion. Horace feels that he has been singled out because he knows of a neighbor who had a similar problem and his insurer paid for the damage to his house although the source of the water was different than what damaged Horace’s house. Horace feels that he is getting “stiffed” by his insurer so he hires an attorney and files suit. Prior to the suit, the judge agrees that the evidence is undisputed as the policy clearly and legally excluded such damage. Therefore, the judge should decide the case in favor of the insurer without a trial. The most difficult part in getting a summary judgment is convincing the judge that the most important facts in the case are undisputed. In order to convince the judge, the party who is seeking summary judgment often relies on depositions of key witnesses as well as affidavits and documents. In the above example, Horace’s attorney might attach the following evidence to his summary judgment motion: 51 An except from the deposition of Kevin MacIntosh who is the claims manager for the insurer, who testified that the insurer does not insure against certain risks, and the “water intrusion caused by the earth movement” exclusion fits the circumstances of Horace’s problem specifically. An officer of the American Insurance Association who testified in a deposition that (1) this exclusion is universally excluded from Homeowner’s policies; and (2) the insurer that Horace claims covered a neighbors house for the same damage, in fact covered water intrusion when the source of the water was from a completely different source, and (3) the policy form used by both insurers were identical. The insurance policy, signed and in force, which contains the “water damage caused by earth movement” exclusion. The testimony in depositions can also be used if one of the parties opposes summary judgment—many times certain parties, such as insurance companies, will automatically file for summary judgment, particularly when there is a question as to policy wording and intent. When a “Motion in Opposition to Summary Judgment” has been filed, excerpts from depositions are a typical way that a party seeking to prevent summary judgment is able to show the judge that there does exist serious factual disputes. In the illustration above, Horace may file a Motion in Opposition to Summary Judgment, and attach to it excerpts from a deposition of the insurance agent who had stated that all water problems affecting the foundation would be covered, which he stated in a letter to Horace as Horace had been concerned because of his neighbor’s foundation problems. He may also attach advertising information from the insurer which would indicate to a layperson that all foundation caused by water would be covered. Also, he could attach an excerpt from a deposition of an engineer who was familiar with the problem of the water and attested to the fact that the water came from a cracked slab which was caused by the negligence of a contractor. Therefore, this would be covered under the Homeowner’s policy. In most situations, the "earth movement" exclusion in a Homeowners policy does not preclude coverage for a cracked slab allegedly caused by the negligence of a contractor. The "earth movement" exclusion generally applies only to naturally occurring earth movement. (This was the ruling in an actual similar case and summary judgment was not granted.) Judges do not, of course, decide disputes when the facts are apparent, for two reasons: the judge does not get a chance to evaluate the creditability of the witness since the evidence is all on paper; and in many civil cases the parties have the right constitutionally for a jury trial to resolve disputes on the facts. Therefore, judges do not grant summary judgment when important facts are in dispute. SETTLEMENT DISCUSSIONS Rarely are their civil suits without some settlement discussions, and many times they occur before a lawsuit if filed—sometimes in certain situations, a party may be required to resolve a 52 dispute before a lawsuit can be filed. The mere filing of a lawsuit is quite often a tactic for negotiation, because it increases the pressure on an opponent to settle. Sometimes, in some jurisdictions, court rules may require parties to attend mediation sessions and settlement conferences. There are, of course, many, many factors as to whether a case will be settled and/or when. Sometimes a “bird-in-the-hand” situation is better than a long, drawn out and expensive court case when the most that can be expected would be close to what is offered in settlement. Sometimes just attorney fees will eat up any differences between what is offered and what would be resolved even with a favorable judgment. And some people just do not want to take chances that they will be happy or unhappy with the outcome of a trial. This is understandable because legal matters can confuse most laypersons that have no experience or training as to know exactly how strong their case (or that of their opponent) really is. Of course the greatest determinant is the estimate of the parties as to how the case is going to turn out if it goes to trial. Regardless of how confident the attorney may be in his own ability, a good, honest and ethical attorney will fully and completely explain the entire situation to his client, including any changes that occur before or during trial. Don’t forget, the client may hire an attorney only once in his lifetime and he may risking all that he has earned through hard work on the outcome of the trial, so the client must be given all the facts continually. One of the best crystal balls for a trial and a very significant factor, is a deposition because it gives the parties a preview of what will happen at trial, plus it gives them a good chance to judge how creditable the witnesses are. Sometimes an off-chance remark or seemingly-innocuous statement can have a tremendous effect on whether the case should be settled or whether it may be worth continuing to trial. As an example, two lawyers trying to settle a personal injury lawsuit as the result of a traffic accident: Attorney for the Plaintiff: “If this case goes to trial, a judge or a jury will undoubtedly decide that your client was negligent in her driving. When you deposed Sergeant Jones, who was riding in the car and who is a friend of both the plaintiff and the defendant, he honestly stated that your client was driving down a dark road that was unfamiliar and he turned around to say something to his girlfriend who was in the back seat, when the car hit a pothole and he lost control. If he had been looking at the road he would have seen the pothole, as it was easy to see and we have pictures that so indicate. I think that Jones’ testimony will be enough to convince a jury that your client was at fault.” Attorney for the Defendant: “I disagree that a jury will totally believe Sergeant Jones as he admitted that he had several drinks as they were celebrating his return from Iraq before they started for home, taking a shortcut. The witness in the back seat that my client was supposed to have talked to just before the accident, testified that my client had been very careful in driving and even though they had had a party, my client refused to even have a beer. This indicates how responsible my client was and so I don’t think that Jones recollection of events will count for very much.” 53 TRIAL STRATEGY Remember in early chapters that one of the strengths of discovery is that is helps to eliminate surprises. Depositions, in particular, allows the attorneys for both parties in civil trials to know before the trial gets under way, what it is that the opposing witnesses are likely to say, and how creditable they will appear during their testimony. In addition, if their own client is deposed they will know the strengths and weaknesses of their own client if he is going to be called as a witness. This enables the attorneys to plan for trial strategy, and often their strategy is based upon depositions. Sometimes, during a deposition, a deponent whose testimony is mostly adverse to the deposing party, may disclose some information which actually has the effect of supporting the deposing party’s case. When this happens, if the attorney for the deposing party is awake and has picked up on this, they can plan on eliciting this information at trial and acting upon it. This kind of a situation can be double-edged, because of the attorney brings this information up at trial when examining the witness, and the witness says something that contradicts the testimony given at the deposition, this can be used to impeach the witness, and the witness loses creditability. And when this happens, very often, “there goes the ballgame.” As an example, in a suit for sexual harassment, Bruce wants to make a case that sexual advances made towards Judy were consensual, so he deposes Jorge, the maitre d’ at the Golden Room. Jorge testifies that on three different occasions, Bruce and Judy had dinner together at the restaurant, and on at least on occasion, they exchanged long, seemingly passionate, kisses over a glass of wine, and then they drank from each other’s glass. According to the reservation records at the Golden Room, the two of them had met there for dinner five times over a 6 week period. If Bruce testifies differently at trial, Judy’s attorney can offer this conflicting deposition. Sometimes another situation could arise whereby a deponent that an attorney wants to use as a witness at a trial, when giving the deposition appears to be contradictory as to a couple of dates that could be crucial to the trial. Otherwise, the deposition provides the information supporting the attorney’s client. However, at the trial, the attorney may not call this witness at all, or if he does, he will limit the scope of the deponent’s testimony so as not to include specific dates. In the sexual harassment case above, when Jorge was deposed by Judy’s attorney he admitted that he was always extremely busy during the dinner period when they were at the restaurant, so he did not pay all that much attention to them. He admitted that the restaurant was dark, and so it was possible that this was a business dinner (which Bruce maintained) on at least one occasion, and the kissing over wine incident may have occurred during Secretary’s day, as Bruce maintained, and it is possible that it was not overtly sexual, but just friendly. If this happened, Judy’s attorney would limit the scope of Jorge’s testimony and may decide not to call him as a witness. If depositions show that the evidence of the opponent is weak, the attorney for the other party may focus on that weakness at trial. If the deposition of Jorge is used by Judy’s lawyer, then Bruce’s lawyer would “tear him apart” at trial. 54 WITNESS PREPARATION A deposition is an excellent tool to help prepare a witness for testimony. Of course any deposed person should carefully review the deposition before testifying in a trial. A deposition is a great tool for refreshing memory, which is important because of the time lag between the incident, the deposition and the trial, and particularly if the witness is a senior citizen. The deposition is usually given soon after the incident, so things that happen are more easily remembered with a detailed deposition. If the testimony at trial differs from the deposition testimony, the adversary can introduce the deposition into evidence simply by reading from it, in an effort to undermine creditability. The deposition is what was believed to be the truth at the time of deposition, but the information given at the trial is what is believed to be the truth at the time of the trial. Sometimes this happens, and if it does, the witness must be prepared to fully explain the discrepancy. Whether the witness is believable will depend upon how well they are able to explain the discrepancy. Many times there is a reasonable explanation for the difference, such as the witness becoming acquainted with a document that the witness had not seen prior to the time of deposition. If the explanation is presented truthfully and completely, then judges and juries understand that things change with the introduction of facts that were not previously available. According to Federal Rule of Evidence 612(2), an adversary generally is allowed to examine whatever documents that the witness uses to refresh his recollection. Since the opponent’s lawyers have had access to the deposition, their examination of the preparation material will not disclose new information. DEPOSITIONS USED AT TRIAL Even though most civil cases are settled, once in a while a case will make its way to trial. When they do, depositions play an important part for various reasons. SUBSTITUTE FOR TESTIMONY On occasion, a friendly witness may be in a situation where it is possible that they cannot be present for trial, and when this occurs, then their testimony will be taken by deposition—this is called “deposition to perpetuate testimony. As an example, a witness has been offered a good job in another country, or if the witness is old and infirm, then if the case does go to trial and the friendly witness is unavailable to testify in person, then the deposition can be offered into evidence at the trial. FRCP 32(a)(3) & Florida 1.290 (a) and (c) sets forth situations in which a deponent is unable to testify, which means that the deposition testimony can be substituted for the live testimony. This is also used in cases of appeal where the original witness may not be available during the appeal process to explain testimony or to testify again. Testimony offered at a trial is not a “stepchild” to live testimony, as it will be considered the same by the judge and the jury. Be forewarned that sometimes judges will expunge certain deposition testimony because the rules for deposition are more lax in some ways than live testimony—for instance some questions must be answered at deposition that would be improper at trial. 55 They are performing their duty of making sure that all testimony complies with trial evidence rules. Depositions taken to perpetuate testimony are often videotaped. This can add several hundred dollars to the cost of the deposition, but it can be well worth the money if the purpose is to maximize the effect that the deposition may have on a judge or jury, and contrasted with the reading of a deposition. Judges, and juries in particular, will pay more attention to a videotaped deposition than one that is read without emotion by a third party. Illustration: Jack and Jill, unrelated, were injured in an auto accident when a car driven by Peter ran a red light and hit their car broadside. In Jack’s suit Jill was deposed to testify as to what her version of the accident was. Since they are claiming personal injury damages, by having Jill’s deposition videotaped they were able to show a jury how bruised and bandaged Jill was after the accident, giving a powerful argument as to the extent of her injuries, etc. Even though Peter’s attorney acknowledged that Jack and Jill were injured, and it was not the fault of Peter, the video was the next best thing to having the jury with her in the emergency room after the accident. TO IMPEACH A WITNESS When a witness testifies at a trial and the testimony is different than the deposition given prior to the trial, and the testimony at the trial is less favorable to a party’s case than it was with the deposition, then the party can read the deposition to the judge or jury—this is called “impeachment” because different and conflicting statements made by a witness may cause the judge or jury to ignore the witness’s trial testimony. Or, sometimes, the judge or jury may believe that the deposition testimony is the actual truth and the verbal personal testimony is discarded. But when that is done in front of a jury, it is difficult to “erase” any testimony from the mind of the jury. Example, the witness at a deposition stated that the pedestrian crossed against a red light and in front of the defendant’s car. But during testimony, the witness stated that “I really could not get a good look at the light from where I was sitting.” The next step in impeaching a witness is to have the witness repeat the trial testimony. By repeating the trial testimony it is very difficult for the witness to have a change of mind again or say something like, “I misspoke accidentally, I guess…” This is easy to do, to pin down the witness, by asking a single question such as: “The traffic light on the west side of Oak Street facing the defendant’s car was red?” In this case, the answer would be something like “I thought it was red at the time, but now I realize that I could not really see it that well from where I sat in my car at the corner.” The next step would logically be for the witness to verify their deposition transcript, such as: Q: I have a deposition booklet here which is titled “Deposition of James Lacy.” Can you take a look at this and see if you recognize what it is? Lacy: Oh yes. This is the deposition that I gave last December regarding this case. Q: Please look at the bottom of the last page, page 88. Is that your signature? 56 Lacy: Yes it is. Particularly in jury trials, an attorney when impeaching a witness may want to illustrate to the court that the witness that is being impeached, had ample opportunity to give the correct answer at the deposition. At this point, the attorney may review some of the warnings and admonitions that were given at the beginning of the deposition. (Details on these warnings and admonitions discussed in detail later) The impeachment then may proceed as follows (as an illustration): Q: Mr. Lacy, were you informed that you were under oath when this deposition was taken? Lacy: Yes. Q: Was that the same oath that you took before your testimony today in this court? Lacy: Yes. Q: Were you asked at the deposition by me whether you knew of any reason that you could not give your best testimony, is that correct? Lacy: Yes. Q: You answered me that there was no reason that you could not give your best testimony, right? Lacy: Yes. Q: Your deposition was taken just about 5 months ago, is that correct? Lacy: Yes. Q: Would you agree that your memory of the event was probably better and more accurate at the time of your deposition than it is now? (At this point, many witnesses are realizing that something is up and so they try to figure out some way to not look foolish—of course, all they are doing is eroding their credibility.) Lacy: That would probably be true. Now the trap has been baited and set. Continue with the impeachment—the impeaching attorney asks permission of the court to read the deposition that is in conflict with the testimony, to the judge and/or jury. Rarely would permission not be granted. Q: Your honor, I would seek permission to read into the record lines 36 to 38 from page 61 of Mr. Lacy’s deposition. Judge: You may do so. Q: (Reading from deposition) “Question: Mr. Lacy, what was the color of the signal light on the corner of Oak Street and Main Street facing oncoming traffic from the west, at the time of the collision? Answer: Red. “ Q: Mr. Lacy, was that the question that was asked and was that the answer that you gave? Lacy: Yes. 57 At this point, the impeached is concluded. The questioning attorney may then move on to other subjects. During the impeachment final arguments, the attorney will undoubtedly refer to Mr. Lacy’s conflicting versions of testimony, and will ask the judge/Jury to ignore Lacy’s trial testimony or to believe Lacy’s deposition testimony. REFRESH A WITNESSES RECOLLECTION OF EVENTS It must be emphasized that it is not at all unusual for a witness to have a momentary lapse of memory while testifying at a trial. After all, witnesses are just people and people sometimes forget. They may be asked about the date of a meeting, or names of people at the meeting, what did the witness do on a certain day or what exactly was said during a conversation. The courts have recognized that people forget things so they allow questioners to show witnesses almost every kind of document conceivable to refresh the witness’s memory. Depositions are one of the most often used and the most effective. For instance: Q: Mr. Dobbs, on the day of the accident, what happened to you next? Dobbs: Bob & I either ate lunch or we sat in the park and watched people, I just can’t remember the time frame of when we did either. Q: Would it help if you looked at your deposition that you gave in June? Dobb: I am sure that it would as I gave the deposition soon after the accident and things were clearer in my memory. Q: Here is a copy of that deposition. Please turn to page 36 and read the second line and see if that helps you to recall. After the Dobbs reads the deposition, the deposition is removed by the attorney from in front of the witness. Q: Did that help you to refresh your memory now? Dobbs: Yes, the mention of the lady with the Jack Russell terrier reminded me that we went to lunch soon after, so we ate lunch after we spent about an hour sitting in the park. Note that the deposition testimony is not read to the judge or jury. However, the opposing counsel may examine the deposition that is used to refresh the memory of a witness. Therefore, one of the reasons that a counsel may ask a witness to use a deposition to refresh their memory is that the opposing counsel will already have a copy of the deposition. This way, there is no opportunity for a witness who uses a deposition to refresh their memory to give information to the opposing counsel that the adversary would not otherwise see. RESPONDING TO QUESTIONS When preparing a witness or deponent for deposition, there are certain fundamental and elementary instructions that can be given to a client in order to receive the maximum benefit from a deposition without a lot of meaningless discussions. Don’t forget that the deponent is being questioned under oath—not an every day occurrence to the layperson—and to make matters 58 worse, the questioning is being done by a lawyer who will try to influence the deponent or influence their answers. Add to that the fact that everything that is uttered is being written down and/or videotaped, and the experience is probably not pleasant to the deponent. As discussed earlier, preparation is all important, and the lawyer can reduce the stress of his client deponent by making good, solid suggestions as how they should respond to questions. Then they should also preview the techniques that lawyers normally use at depositions which help them to feel that they are not just pawns in a game played between two lawyers with them right in the middle. LISTEN TO THE QUESTI0N The first rule usually given to a client deponent is for them to listen closely to the question and then answer only that question. Most people will throughout the years develop a habit of answering incomplete questions, in other words, anticipate the question. That is fun when it is done with friends in casual conversation, but that habit can carry over to the point to where the individual is impatient for the question to be asked in its entirety and they will answer it before it is completely asked. What happens is that sometimes a different question is answered. Q: After getting home from work on the 17th, what time did you… A: eat dinner? About 7:00 because that is the time we usually eat. Q: I was going to ask you what time you changed clothes and left the house. When talking to family and friends, this habit can be a little frustrating at times, but it is tolerable socially as friends as they are not going to interrogate the person about everything that they said. At a deposition, this is a real “no-no” and when preparing the deponent, if they start to answer an incomplete question by their own attorney, then they must be cut off at the pass with emphasis so that they will not do it when deposing. The hazard—in addition to testifying inaccurately because they answered the wrong question—is that they might volunteer damaging information or evidence that leads to damaging information, that the questioner might otherwise never have asked. Illustration: In a case of wrongful termination and sexual harassment, Milly contends that she was fired for not allowing her supervisor, Ben, to slip up behind her at work and run his hands inside her blouse, and when she complained to Bradley, the owner of the company, she was fired. The employer maintains she was fired because she was behind on her accounting function, with the result that two clients were billed incorrectly and one of those clients took their business elsewhere. Q: Ms. Milly, did Mr. Bradley offer to give you some help with your month-end billing procedures so that the correct bills would be sent to the customers? A: Yes, he said that Mr. Ben would work with me as he was more experienced and could help. 59 Q: What did you say to Mr. Bradley’s offer? A: I told him that I could get the work done on time and the bills would be correct. Q: Then why … A: I really didn’t want Ben to work with me because he told me at dinner the night before that because we had had personal problems we should not get too close at work. Q: That is interesting and we can discuss the personal problems and the dinner date with Ben, but I was only going to ask you why two of the billings were incorrect that month? Milly had obviously expected to be asked as to why she did not want to work with Ben, but instead she was going to be asked as to why the billings were inaccurate and why she had not told Mr. Bradley that she did not want to work with Ben. This voluntary information would lead to questions regarding the “dinner date” that she had with the person she was suing for sexual harassment. TRUTHFUL AND COMPLETE The oath the deponent takes at the deposition is just like the one that he would/will take at trial so he is under the same obligations to “tell the truth, the whole truth, and nothing but the truth.” Were it only so easy… The deponent must testify truthfully because the whole justice system is based upon truth and honesty. A more practical reason is that if the deponent lies and the other party is able to convince the judge or jury that they lied, there goes the credibility of the deponent. Nothing they say later can completely and totally overcome the aura of untruthfulness that surrounds them. The big problem is, of course, that they could lose the case just by answering a question incorrectly. As important is the fact that they are under oath so if they lie on the deposition, they can be subject to a criminal charge of perjury. While this rarely happens, it can happen, and regardless, the threat of perjury can convince a deponent that they must tell the truth. If a person testifies that the light was green when actually it was red, if they testify that John swung first at Bill when they know that John never did any such thing, etc., is lying. If they did not know for sure what color the light was, they should so state, even though that might not be what others were hoping they would say. On the other hand, if the deponent states that he just could not tell who swung first—even though he knows that Bill swung first—and another witness testifies that Bill swung first, a judge or jury is going to get the impression that the deponent knew this all along but is protecting Bill for whatever reason and his testimony will be worthless, or at least seriously impaired. Juries, in particular, often have a “pick-and-choose” mentality when there is conflicting testimony. They will often pick parts of a testimony to believe and other parts not to believe, for whatever reason. It is amazing how many times they can (accurately) tell that someone is not telling the whole truth. For example, if a “person” was asked “Were you ever alone in a room in the Green House with (the lady with the blue dress)? If the person does recall being alone with that person, he violates the oath by answering, “I can’t remember.” (Sometimes referred to as “selective memory.”) 60 As an (fictitious) example: The Acme Insurance Company promised the Allen Agency that they would be purchased by Acme if the Allen Agency produced premiums of $1 million over the next three month period. Allen Agency, represented by Mike Allen, the agency owner, is suing Acme for breach of contract because they did not purchase the agency when they promised to do so. The offer was never reduced to writing because of their long relationship both parties felt it was not necessary. Allen had landed some large accounts because he represented his agency as being owned by Acme so their clients would receive better service and more attention than he could provide as an independent agency. Acme deposes Allen and some of the deposition was as follows: Q: Now let us turn to the meeting between you and Acme’s President, Mr. Wallace, on May 15th of last year. Do you remember that meeting? A: Well, I am not absolutely sure of that date of the meeting. Q: We have the appointment book of Mr. Wallace plus testimony of others who saw you together, and other corroborating testimony. Now do you remember? A. Okay. Q: What did Mr. Wallace tell you about purchasing your agency? A: He said that Acme would purchase the agency in three months—by the middle of August. This testimony is untruthful as it is a “half-truth.” He purposely eliminated the qualification of the arrangement of his agency collecting $1 million in premium, which his agency was not able to do. This half-truth was a temptation for Allen as it thought it was a clever way of withholding the qualification information and it would make the other party prove that his interpretation of the meeting was incorrect. The hope in this situation is probably that it will evolve into an “I-said, you-said” situation and he might prevail if that happened. However, such advantage would probably be only in the mind of Allen. In this case, if the attorney for Acme calls this answer a “half-truth,” Allen is then on the defensive and if this is called to the attention of the judge in a pre-trial motion, during a settlement conference, or at trial, the judge may see through this. At the very least, even if this is not brought to the attention of the judge, the deponent’s creditability will be taken into consideration if there are any settlement offers. Conversely, some lawyers disagree that answers should be “complete,” instead the answers should be as short as is possible and still be technically true. Their reasoning, which cannot be totally discarded, is that the risk to a deponent’s creditability will be damaged by giving incomplete but technically true answers is more than balanced by the danger that a deponent will voluntarily give harmful information in an effort to answer completely. Whichever is the best is what works best for the independent lawyer, but as the whole country has seen, when a deponent tries to evade the truth by using technical and strained interpretations of terms that are in everyday use, trying to evade and torture the truth can backfire. 61 OH-OH What to do if the deponent realizes that testimony previously given in the same deposition, is incorrect? As an example, the deponent stated that Wallace and the Vice President of Marketing were present at the meeting, and then over lunch something is said about a “secretary” and the deponent suddenly remembers that Wallace’s secretary was present at the meeting also, but she had not said anything at the meeting, so he had forgotten about her being there. There are a couple of ways of handling this. One way is that as soon as the deposition starts again, or is interrupted, the deponent may state that they want to correct an earlier answer, and correcting the answer such as: “Before lunch I testified that Wallace and the Vice President were present at the discussion, but I now remember that Mr. Wallace’s secretary was present at that meeting, although she did not contribute to the discussion.” Another way to handle it would be for the deponent’s attorney to bring out the correction by questioning the deponent at the conclusion of the deposing party’s examination. UNDERSTAND THE QUESTION Usually the attorney will instruct the deponent client not to guess at the meaning of a question but unfortunately this instruction is often disregarded, mostly because the deponent does not want to appear stupid, and if they did not understand the question, they feel that it is, in some way, their fault. Sometimes the same question will be asked at trial but in a slightly different format, so if the deponent or witness does not fully understand the question, the same question could be answered differently at deposition and at trial. If nothing else, guessing at a question will extend the length of the deposition. Q: Did the car that you bought from the defendant start the morning after you purchased it, on June 3rd. A: No sir, it did not. Q. And did the brakes fail and the headlights fail to work? A. I’m not sure I understand the question. Are you still talking about June 3rd? Q: Excuse me, I was talking about the period of time over the next 2 months that you owned the car. During that time did the brakes and headlights fail? A: Yes, the brakes failed about a month after I bought the car, and 2 weeks after that, the headlights failed to come on. By asking for date clarification, the deponent avoided a possible conflict in testimony. In a case like this, the dealer is probably going to assert that they fixed problems as they arose. THE GUY’S A JERK ANYWAY Sometimes a deponent gets so involved in his testimony that he throws in some personal considerations, such as if the deponent is testifying that Cecil had caused a disturbance at his home and the deponent further states, “Cecil is such a big jerk, anyway, off-the record of course.” Sorry, Johnny, everything that was said is on the record. Of course the deposing party can “go off 62 the record” which means that what is said will no longer be transcribed and it will start again when he says “Let’s go back on the record now.” A harmless remark, one might think, but if the deponent is charged with an action because he lost his temper, this could bear out his temperament. Of if he were prejudiced for some reason, this could bear that out also. Another thing that must be emphasized and kept in mind is WORDS MEAN SOMETHING! In today’s information environment, words are thrown around all the time and accusations are made that are so untrue that they are accepted. Therefore many people feel that it makes no difference what they say, and maybe that is true in their social circles. But they must be warned that what they say under oath will be accepted in their true and universal meaning. NOTE: Sometimes a witness is a young lady, late teens or early 20s, giving testimony before a jury composed of much older citizens who are trying desperately to understand what in the world she is saying, but they are having a difficult time because “like” is inserted every few words. Unfortunately this has happens often. Perhaps if someone has a solution to this problem, they could write a book and it would be a best seller—not just to attorneys, but teachers, parents, and business people… GOOD IMPRESSIONS It is obvious, but often disregarded or forgotten, that the person on the witness stand must make a good impression on the judge or jury to be believed. Dressing properly is important— shorts or trousers showing the top of the underlying underwear can give a false impression. While it is true that not everyone can afford expensive suits and ties, but conservative clothes will do just fine, just as if they were going to attend an important business meeting, or going to a wedding of a close friend or family member, or were going to apply for a loan at the bank. Some people, just naturally, cannot restrain themselves from making jokes. They are delightful to be around, but on the witness stand or making a deposition, they have to stop the urge to be funny or flippant. The courtroom is not the place to be funny as whatever is said is written down and taken at their true face value. That goes for attorneys doubly – the court and their clients do not expect them to perform an act to impress the judge or jury. STUDY QUESTIONS 1. One of the most important reasons that deposition are so very important, is that A. because of the exchange of information during discovery, depositions often make trials unnecessary. B. many lawyers would starve if they did not have deposition clients. C. no one ever lies on a deposition. D. the state picks up the tab for deposition expenses. 63 2. A procedure whereby one party files a written motion in court asking for a judge to stop a lawsuit prior to trial is called A. a subpoena duces tecum. B. a motion for a new trial. C. motion for a repleader. D. a summary judgment. 3. The most important part of getting a judge to stop a lawsuit prior to a trial is A. convincing the judge that the most important facts in the case are undisputed. B. convincing the judge that the most important facts in the case are disputed. C. in getting the judge to void all depositions in interrogatories. D. to convince the judge that there are trials that are much more important. 4. The reason that a lawsuit is filed is often because A. there is a vacancy in the court calendar and the attorney can get the case to court quickly. B. it is a tactic for negotiation as it pressures an opponent to settle. C. lawyers need more legal fee income. D. by filing lawsuits, lawyers get their name in front of other potential clients. 5. A deposition is sometimes called a “crystal ball” for a trial because A. it shows how efficient in questioning the attorneys are. B. on the average, 9 out of 10 go to trial. C. it gives the parties a preview of the trial, plus it gives them a chance to gauge the credibility of witnesses. D. it costs money but usually it does not tell anyone anything. 6. A deposition allows the attorneys in civil trials to know before the trial gets under way, A. how the judge will rule on important matters. B. how good the opposing attorney will be on examination of witnesses. C. how deep the pockets of the opposing party is. D. what it is that the opposing witnesses will probably say and how credible they will appear while saying that. 7. Not often stated as such, but a deposition A. actually is an excellent tool to help prepare a witness for testimony. B. can ruin a good, friendly witness as it can make them start to doubt their own testimony. C. really does not accomplish much except to increase legal fees. D. as a deciding factor in a civil case, has a miniscule effect. 8. Two of the functions of depositions used at trial could be A. a substitute for testimony and they can be used to impeach a witness. B. to give the plaintiff a “shot in the arm” and to create publicity. C. to protect private information and to prevent intrusion of confidential information. D. to give judges a preview of the competency of the opposing attorneys. 64 9. The first rule usually given to a client deponent is A. totally ignore the questions posed by the deposing attorney. B. to smile at the judge occasionally (female) or ignore the judge completely (male). C. to pay the retainer up front. D. listen closely to the question and then answer only that question. 10. If a deponent realizes that testimony previously given in the same deposition is incorrect, A. then it is a mistrial and everything may have to be repeated, including the depositions. B. the deponent could go to jail for perjury. C. either the deponent can state that they want to correct an earlier answer and then correct the answer; or the deponent’s attorney can bring out the correction by questioning the deponent at the conclusion of the deposing party’s examination. D. the deponent can write out the question that was not answered correctly, the answer that was incorrect, and the correct answer, and then it is filed with the judge who will then in all probability, question the deponent in his chambers prior to the trial. ANSWERS TO STUDY QUESTIONS 1A 2D 3A 4B 5C 6D 7A 8A 9D 10C 65 CHAPTER VI – ANTICIPATED QUESTIONS QUESTIONS OFTEN ASKED BY THE DEPOSING ATTORNEY Question: Did you meet with the (other) lawyer? This is a routine question often asked, almost automatically, sometimes it is asked just to make the deponent feel uncomfortable or cause them to give an evasive answer. If the deponent is a non-party witness, this question almost certainly will be asked. If there were such a meeting, the deponent should face it head-on, such as “Yes, I met with the plaintiff’s attorney day before yesterday.” This is fine, legitimate and honorable, there is nothing to hide and lawyers for all parties hold pre-deposition meetings with witnesses. Further, during these meetings it is acceptable to prepare the witness for the meeting. The only mistake that can be made here is either to try to deny such meeting, or try to conceal the purpose of the meeting. The deposing attorney may attempt to make this seem as something that it is not, that the other attorney tried to get the witness to say something that he would not otherwise have said. The best defense is still to answer honestly and completely. Q: Miss Turbo, I want to return to your testimony where you stated that you observed Mr. Ben coming from behind Miss Milly and he put his hands under her sweater and on her breasts. Before testifying here today, did you meet with Ms. Tegre, Miss Milly’s attorney? A: Yes. Q. You observed that event in the hallway outside of your office, isn’t that correct? A: Yes. Q. During that meeting, is it not true that Ms. Tegre asked you questions that she thought might be asked of you here today during deposition? A: Yes. She explained that the questions that she asked could be similar to the ones that you ask me today. Q: At that meeting with Ms. Tegre, did she state that she believed that your statement was extremely important in respect to Mr. Ben’s actions towards Miss Tilly? A: Yes. Q: She also told you that you should emphasize that the action was not consensual and that her client, Miss Tilly, pushed Bens’ hands away violently. A: No, she only told me to tell the truth the best that I could in relation to what I saw. She did not tell me to emphasize anything in particular. Q: Mrs. Tegre did comment on our answers to the questions she asked in her office, didn’t she? A: Yes, sometimes. 66 Q: When you answered questions today about Mr. Ben’s actions, you knew from Mrs. Tegre that was the kind of answers she hoped you would give, is that not true? A: I did know what the lawsuit was about and who Mrs. Tegre represented, but I have always intended to tell exactly and truthfully what I saw, and this is what I have done. Q: Okay. So what you testified to today is what Miss Milly’s lawyer wanted you to say, isn’t that so? A. No that is not so. What I testified to today is exactly what happened and I am telling the truth to the best of my ability and my recollection. I am sure that Miss Milly and her lawyer wanted to hear some of the things I said today, but I was just telling exactly what happened. One should always make sure that the deponent is aware of what an opposing attorney may attempt, but they should openly admit meeting with the other attorney in advance, but deny that any words were put into their mouth and everything they have stated is the truth. Question: Who else have you discussed this case with? This may seem like a trick question—and to some that were not forewarned it may be. But make sure the deponent understands that it is perfectly acceptable for them to have talked about it with a family member or a friend or colleague, even their concerns about their having to be deposed. They must realize, however, that these conversations are not privileged—unless they are talking to their spouse, doctor of some other professional where the conversation would be privileged. Saying that the discussion is absolutely confidential when talking to someone outside of the parties to the deposition, does not stop the deposing party from requiring them to testify as to what was said between them. Actually, the party to whom the deponent discussed the matter with, can be called as a witness as to what was said. The good rule here is to warn the deponent or witness that they not say anything to anyone or anybody that they would not want repeated at a deposition or at a trial. Question: What documents did you review in preparation for this trial? The deposing party will probably ask routinely, whether the deponent reviewed any documents to fresh their memory before they testified about the facts of the case. There is certainly nothing wrong with this, nobody has a perfect memory. We have all seen on “cop shows” police officers referring to their notebooks as they testify. Of course, the deponent must be aware that the deposing attorney may require that these documents be produced. The appropriate instruction to a deponent prior to deposition is not to refer to any document that is not already going to be introduced as evidence, while preparing for the deposition or trial. TRICK QUESTIONS Usually the deponent is concerned about “trick” questions more than anything else, as he would probably consider the deposition as a contest between his telling exactly what happened and the other attorney trying to get him to answer the questions the way the attorney wants him to answer—in other words, to get the deponent to accept his “spin.” 67 To set forth any hard and fast rules about how to prepare a client for a deposition would be meaningless as every individual is different. A problem that comes up occasionally with an expert witness is that the expert is overly-confident because he is, after all, an expert. (Definition of “expert:” “X” is an unknown factor, “spurt” is a little drip, ergo: an expert is an unknown little drip…) Not only will an opposing attorney probably have his own expert, a good attorney is always a quick study and will probably know more about the subject than the expert, or at least in one area of the expert’s expertise. It is always wise to try to make the deponent understand that he is the author of his own story which he will tell at a deposition. Therefore, the observations made at a deposition must be his own recollections, impressions and characteristics, and in their own words. The deposing attorney may attempt to “co-author” his story by wording questions in a way that gets the deponent to agree with him or adopt his way of thinking. This is where the “trick” questions come in. The deponent should be assured that many trick questions are objectionable and his attorney will protect him, however others are legally proper so the deponent should be prepared to answer them truthfully which is the best way to avoid a “trap.” There are certain common trick questions that even the most neophyte of lawyers are acquainted with, so suggestions can be made as how to answer those questions specifically. QUESTIONS WITH NOT-SO-APPARENT ASSERTIONS Probably the most common of these kinds of questions is when the attorney prefaces a question with an assumption or an assertion. This is probably legally objectionable, but just in case the deposing attorney is able to slip it in, the deponent should be aware of how these questions are worded. If there is no objection made and if the deponent answers the question without making a statement for the record that he disagrees with the assertion of the attorney, it is possible that the deponent would then be considered to have adopted the assertion of the deposing attorney. As an example, assume that Joyce is suing Albert for sexual harassment. David is being deposed as a witness for Albert as he believes Joyce has an ulterior motive for the lawsuit and it is without substance. He has hired an attorney as he is concerned that Joyce will sue him for something that he may have to testify to in the trial. Q: Do you remember the night of December 21st? A: Yes, that was the night of the company Christmas party. Q. Did you see Albert and Joyce at the Christmas party. A: Yes, I talked to them just before we left the party. Q: Was that the time that Albert sexually assaulted Joyce. The attorney is asserting that Albert sexually assaulted Joyce and not about Albert’s actions towards Joyce. If David does not voice his disagreement about the use of the attorney’s description of the incident, then it would be tantamount, in the eyes of the judge or jury, to his agreeing with the description of the incident as “sexual assault.” Therefore, David should respond: 68 A: I did not say that there Albert sexually assaulted Joyce. If you want to know what transpired between the two of them before the left the party, I can tell you that. Assume that David had witnessed Albert helping Joyce on with her coat, as he had helped others with their coats, and that he had jokingly told Joyce that she had “better watch out, as she was standing under the mistletoe.” Albert then told Joyce goodnight and left with another friend. Should David volunteer this information without being asked? Probably not, as this would conflict with the attitude of many attorneys that the deponent should only answer exactly what questions he is asked, nothing more. Actually, the deposing attorney is now in a box—if he does not question Albert more about what happened, the judge/jury will wonder what he is hiding; but if he does go into it deeper, David has pretty well warned him that he may not like what he is going to say. The best protection against this trick question is for the deponent to listen closely to questions and wait until the questions have been completely asked, before replying. One way to avoid letting words be twisted is for the deponent to consider each question, and ask himself if that is the way he would have poised the question. For instance, if the deponent frightened and “scared to death” because of the actions of her husband, and the deposing attorney asks “After Mildred expressed her concern to her husband, what did she do next?” TIP: The courts have frowned on the response of “Yeah, right!” Although that might be appropriate. In this situation, the deponent should restate his opinion that Mildred was “frightened and was scared to death.” However, if the deponent said Mildred was “scared,” and the deposing attorney asked, “When Mildred was “frightened” by her husband, what did she do?”—those two descriptive words mean the same to most people so the deponent would not correct the record. PLEASE ANSWER YES OR NO Just because a question requires a “yes” or “no” answer, does not mean that it a trick question, as many legitimate questions require only the one word answer. “Did Kim throw the rock that struck Denise?” is a legitimate question with a “yes” or “no” legitimate answer. But a lawyer will often use questions calling for “yes” or “no” answers so as to reshape the deponents testimony—if the question is asked by either “yes” or “no” then the attorney has succeeded in shaping the story if either answer does not fairly constitute a response to the question. If the deponent feels that expanding on a “yes” of “no” answer, then they should do so if the answer is honest and accurate. However, —the answer should be expanded only as far as is necessary to provide an honest and complete answer. As an example, in a previous example of a wrongful termination suit, Bill, a supervisor, was being deposed in a wrongful termination suit against Bill’s and John’s employer, by John. Assume the questioning went as follows: 69 Q: Were you John’s immediate supervisor at the garage? A: Yes. Q: Had you ever disagreed with him about various job procedures over the years you worked together? A: Yes. Q: And sometimes you told several other employees that you personally did not care for my client, is that right? A: Yes. Q: So then you were happy when my client was fired, were you not? A: I cannot answer that question yes or no. We would have our disagreements now and then and we were not personal friends, but I have always had respect for his technical knowledge and his work ethics and I was sorry to see him go because he will be difficult to replace. The last question called for a yes or no answer, instead the lawyer got a testimony to the work ethics and professionalism of John, which may or may not hurt his case. Actually, John’s lawyer was attempting to get the deponent to show prejudice towards his client, but instead he got just the reverse. In this case he would get more than what he had hoped. SUMMARY QUESTIONS Summary questions refer to a recapitulation of the events or series of events within a deposition, with the deposing attorney querying the deponent as to the accuracy of the deposition. This is where a “good” deposing attorney shines as these questions are perfectly legitimate if, and only if, they accurately summarize or restate the testimony. To the deponent, these questions are usually quite complex, so there can be hidden assertions in the summary that can reshape the story. Therefore, it is important that the deponent listen closely to the summary and they should understand completely that if there is anything that is wrong, even partially, then the deponent must make it clear that part of the summary question is not correct. Again, the clever use of words can make a big difference. For example, the deponent was a witness to an auto accident where an auto struck a pedestrian who was crossing the street when he was struck by the car. Q: Let me quickly summarize your deposition. You were sitting in your car at the intersection of Oak and Main waiting for the traffic light to turn green. You say the defendant’s car approached the intersection from your right and start to make a left turn. At that time you looked to your left and you saw a person dart out into the street in front of the defendant’s car and then the defendant’s car struck that pedestrian. Is that right? The hidden assertion here is the use of the word “dart.” If the witness had testified that he had seen the pedestrian step off the curb and start across the street, that is completely different. 70 A: No, that is not right. I did not say that the person “darted” out into the street, actually what I said was that the pedestrian had stepped off curb and was in the cross walk when he was struck by the defendant’s car. This is a tough one for deponents. Reread the question above and see if “dart” drew your attention. If the deposing attorney speaks rapidly, sometimes the summary is too complicated to follow. Speaking rapidly and in a monotone is an obvious technique used by some deposing attorneys in their summary, particularly when they attempt to “sneak” in a word or phrase that could change the meaning of part of the testimony. If the deponent appears confused, or dazed, is shaking his head, or in some way transmits the message that things are going too fast and too complicated, then it is absolutely permissible for the deponent to state something along these lines: A: I am sorry and I have tried hard to follow everything you have said, but that is a very long question so I am not sure that everything that you said is accurate. Would you please break it down into shorter sentences for me so that it would be easier to follow? Sometimes deponents just do not want to appear “stupid” by asking for the summary to be broken down. Of course, the deposing attorney may look at the deponent as if he were stupid, or sigh like “what’s the use,” or in some way indicate his displeasure that he has to repeat everything because this witness is too stupid to understand simple English… Of course, some of the theatrics will not go well with a judge and if obvious, could be objected to. ARGUMENTATIVE QUESTIONS A deponent testifies to actions or situations of which they have knowledge and being human, they also have opinions. This is the fertile field for the deposing attorney to run rampant, or at least try to. Basically, the deposing party’s opinion about evidence is put into question form, often trying to get the deponent to loose his temper or to get into an argument with the lawyer whom the lawyer fully expects to win. Or, on the other hand, the lawyer may hope that by being argumentative the deponent will be cowed or intimidated into agreeing with the characterization of the evidence as offered by the deposing attorney. Q: Now, you testified that the light was green when the blue SUV entered the intersection. A: Yes. Q: Are you aware that Mr. Jones testified under oath that he was standing on the other side of the street just a few feet from the intersection at the time of the accident, and he testified that the SUV pulled into the intersection against the red light? A: I am now aware of Mr. Jones testimony. Q: Now, you admit that you were sitting in your car listening to your radio, about two car lengths from the intersection when the accident happened, is that right? A: Yes. 71 Q: Well, I must point out to you that Mr. Jones testified under oath that he was standing just a few feet from the intersection at the time of the accident. Don’t you think that Mr. Jones testimony would probably be more correct and that you are mistaken about who had the green light? A: I do not know anything about what Mr. Jones says he saw. All I can tell you is what I said in the testimony—the SUV entered the intersection with the green light. Q: Well, you surely will admit that Mr. Jones had a better opportunity to observe the light than you had, wouldn’t you say? A: As I said, I have no idea what Mr. Jones saw or under what condition he saw it. All I know is that I saw very clearly what I have testified to. The last two questions asked the deponent are argumentative, in case you did not pick up on that. The questioner is not asking the deponent for information, but is trying to intimidate the deponent into saying that maybe Jones did have a better vantage point than he did. However, the deponent refuses to be swayed by his answers, and by sticking with the truth, refuses to speculate as to what someone else saw. The best advice to give to a deponent in preparation for such questions, is to be sure to —respond to the question, not to the questioner. If it is possible that the deponent may be a little bit of a “hot-head” that would not stand up well to argumentative questioning, tell them to mentally count to ten and take a deep breath before answering. Your basic, Sunday School Teacher instructions, but amazing how it well it works. The worse thing that can happen is for the deponent to “take on” the deposing attorney. Tell them that they would be fighting in someone else’s backyard. If, on the very rare occasions when things get a little out-of-hand, an attorney can go from argumentative to verbal abuse. If the lawyer starts using profanity, or shouts, or pounds the table, of any combination of these, this would be an extreme case and the witness/deponent is under no obligation to participate in a deposition under those situations. It does happen, though, and there have been instances of the court reporter refusing to continue unless there were no more shouting or using profanity. When this sort of thing happens, this is when the deponent really can use a good lawyer. The response to this type of behavior is to tell the lawyer that the deponent does not have to put up with this kind of behavior, (describing the behavior) and if it continues, the deponent will walk out and will not return unless ordered to do so by a judge. And, if the deponent goes to court, he will tell the judge exactly why left the deposition, because of the abuse. Before a deponent can just walk out of a deposition, there has to be something more than insinuations or guarded insults. Don’t forget that everything said goes into the transcript so if the deponent or his attorney objects to the abuse of another lawyer, their objections become part of the deposition. 72 THE FAMOUS “IS THAT ALL” QUESTION The “is that all?” is often used and fulfills a legitimate purpose. Such as: The deponent has mentioned several people at the company Christmas party. The questioner may ask, “Are these all of the people at the Christmas party?” The deponent has testified that on two separate occasions, the supervisor referred to the deponent as being too old for the job. Questioner: “Is that the only time that such reference was made?” The deponent purchased a slightly used pickup and he mentioned that the salesperson had told him that it had new tires and the battery had been replaced. Questioner: “Is that everything that he represented to you about the truck’s mechanical condition?” The deponent said that the building inspector that inspected his new home, walked through the house and basement. Questioner: “Is that all that the inspector did?” The purpose of the “Is that all?” question is to prevent the deponent from adding to the testimony at trial. If the deponent remembered something that he had not included in his deposition, and then added the information at trial, this creates a situation wherein the opposing party can jump on that and the deponent’s credibility has been impaired. There is a statement that the deponent should make, “just in case” there is something that maybe they had not thought about: “That is everything I can recall at this time.” This leaves the door open just in case something else is remembered. Be informed, however, that if the deponent is positive that he has stated everything that happened, it is better to state that to the question of “Is that all?” the answer given is “Yes.” The little crack-in-the-door of “recall at this time” could be interpreted by those who want to so interpret it, as the testimony of someone who is not really sure of what they have stated. Kind of a stretch, but you know what they say about the nose of the camel getting under the tent… “FOLLOW ME” QUESTIONS The “Follow me” type of questioning is a more sophisticated form of attempting to elicit testimony that reflects what the questioner is looking for. The method is to get the deponent to follow the lead by answering questions put to them with the hopes that the deponent continues to follow the lead and answer questions incorrectly. As an example, assume the sexual harassment case used as an illustration earlier. David has testified that when Albert, the defendant, and Joyce, the plaintiff, left the Christmas party, the only thing that happened was a casual remark about the mistletoe and Albert helped Joyce on with her coat. Joyce’s attorney wants to get David to testify that there was more of a sexual inference to that meeting than what he testified. Q: At the Christmas party, did you and Albert converse? 73 A: Yes. Q: Did you talk about Joyce? A: Yes, among others. Q: Did Albert say anything to you about how Joyce looked? A: Yes. Q: Did Albert comment on how sexy Joyce looked? A: No only that her Christmas dress suited the occasion. Q: Would you agree that Albert was attracted to Joyce at that party? A: No. Q: Did Albert make any sexual advances to anyone other than Joyce at the party? A: I never saw Albert may sexual advances to anyone at that party. Q: You testified that Albert helped Joyce on with her coat at the end of the party, right? A: Yes. Q: And would you not agree that would indicate that he had an interest in Joyce? A: No, as I testified, he helped two other ladies on with their coats. Q. Did he also rub the shoulders and back of the other ladies seductively as he did Joyce? A: I never saw him rub any of the ladies seductively. Q: Why else would he have helped other women on with their coats if not to get a little sexual thrill? A. As I said earlier, Albert is a nice guy with good manners, so I would imagine that he helped them on with their coats because it was cold outside and their coats were heavy. This could go on and on but by now, there would certainly be an objection to this line of questions. What is happening here is rather obvious, the questioner keeps trying to put words into David’s mouth, even asking for his assumptions (“Why else would he have helped other women on with their coats if not to get a little sexual thrill?”) David’s response is the typical “cure-all” response—stick to the truth. Let’s further assume that this type of questioning tempts David to argue with the attorney instead of simply answering the questions. Q: When Albert helped my client on with her coat, did you see him put his hand under her sweater and rub her breasts? A: No, I did not see him do that and if you are insinuating that he had some interest in Joyce, forget it, he has more interest in a couple of other girls in the office that are closer to his own age and much better looking. 74 Oh, oh! One can imagine what a can of worms that opened. Surely Albert has made sexual advances to one of these “other women” in the office, whoever they are and how soon can they testify… JUMPING AROUND Sometimes there are questioners who can’t seem to stick to one point without going elsewhere and then coming back to the original question. Sometimes the attorneys are just well organized, but a lot of that is the impression that they want to give. Actually, this can be an effective method of interrogation as it is hard to keep one thing in mind and then have your thoughts switched to something else. Technically, this is not illegal or improper, but it can be confusing—particularly when the deponent has a structured and orderly mind. In instructing a deponent as how to testify under these circumstances, again, the best rule is to “take a deep breath and count to ten” before answering a disjointed question. The delay won’t show up in the transcription anyway. The deponent can also protect his testimony by asking what the question means as he does not really understand it. Could the questioner please rephrase the question? If it gets to the point to where there is actual confusion, ask to take a break or if it is getting late in the day, ask for a termination of that session. GENERAL BACKGROUND QUESTIONING Most depositions start with a routine background questioning and some lawyers have become expert in hiding important issues in the background questioning. (This will be covered later in detail.) The problem with this is that the deponent becomes used to innocuous questions and lets his guard down and does not focus on what is being asked so a question may not be answered entirely correctly. One example might be in the sexual harassment case, David, the deponent, is going through the background questioning on the deposition. Q: You have been at that company for how many years? A: 20 years next June. Q: Are you in the same office space as Albert and Joyce? A: Yes. Q: How close is your office to Albert’s? A: His office is next to mine. Q: How close is your office to Joyce? A: Her office is across the corridor from my office. Q: Do you have a good view of activity in either of these offices? A: Yes as our offices have half-walls with glass on the top that does go to the ceiling. Q: Much like cubicles? 75 A: Exactly. Q: What is immediately outside of your office. A: The water dispenser—we have bottled water— and the copy machine. Q: Have you ever complained about the noise of the copy machine or the water dispenser? A: Not the water dispenser, but the copy machine is a little noisy. Q: Who uses the copy machine? A: Everyone in our department, about 10 people. Q: So your office is noisy a good portion of the day, is it not? A: Yes. Q: What you are telling me then, is that Albert and Joyce can talk quite freely among themselves and you cannot hear what they are saying when the copy machine is being used, is that correct? See how the questions are asked—nothing exciting—but now it is easy to see how David, the deponent, is being set up as only an observer that really has no idea as to what goes on between his client and the defendant. STUDY QUESTIONS 1. Often a deposing attorney will ask “Did you meet with the (other) attorney?” so as to A. find out who the other attorney is. B. put the deponent at ease. C. get a reaction from the other attorney. D. to make the deponent feel uncomfortable or cause them give an evasive answer. 2. The best defense for a deponent when asked questions like (1. above) or similar type of questions, is A. answer truthfully and completely. B. to object in a loud, demanding voice. C. to refuse to answer any question until the deposing attorney quits asking such inflammatory questions. D. for the deponent to ask for the opinion of his attorney as how to answer every question. 3. Knowing that the deposing attorney will probably ask what documents did the deponent review in preparation for the trial, the appropriate instruction to the deponent before the deposition would be A. “ignore the question as you do not have to answer it.” B. “recite a lengthy list of publications that could, even vaguely, refer to the question.” C. “take the 5th.” D. “not to refer to any document that is not already gong to be introduced as evidence, while preparing for the deposition or trial.” 76 4. A deponent who has never been deposed previously will probably worry most about A. trick questions which will get him to answer the way the deposing attorney wants him to. B. how he looks at the deposition. C. whether his grammar is correct. D. how much is the whole thing going to cost him and how can he speed it up. 5. The most common type of “trick” question is A. when the attorney prefaces the question with an assumption or an assertion. B. repeating the question 15 different ways until the deponent finally gives up in disgust or answers cynically. C. when the attorney starts calling the deponent by his first name and puts his hands on the deponent’s shoulder like they were “old buddies.” D. when the deposing attorney starts a question with “Now you do not have to answer this if you find it objectionable but if you elect not to answer, I will press criminal charges.” 6. When the deposing attorney asks a question and demands a “yes” or “no” answer, if the deponent expands the answer beyond “yes” or “no”, A. it is illegal to do so and a judge could sanction the deponent and his attorney. B. whatever is said beyond “yes” or “no” is not transcribed in the record. C. the answer should be expanded only as far as is necessary to provide an honest and complete answer. D. the deponent should then automatically assume the 5th. 7. Questions that refer to a recapitulation of the events or series of events within a deposition, with the deposing attorney questioning the deponent as to the accuracy of the deposition, are A. concluding statements. B. summary questions. C. exit dialogue. D. termination interviews. 8. Perhaps the best advice you could give your client for a deposition where the deposing attorney will ask argumentative questions, is A. argue back. B. ignore argumentative questions or answer them with a look of disdain (for instance). C. to make sure that they respond to the question, not the questioner. D. just to say whatever they want you to say and we will take care of it later. 9. When a deposing attorney tries to get the deponent to correct or add more to an answer, by posing the “Is that all?” question, he is trying to A. prevent the deponent from adding to the testimony at trial. B. get the deponent so flustered that they will change their testimony. C. get the deponent to lose their temper. D. get the deponent so bored that they are thinking about something else, and they can trap them then. 77 10. Since most depositions start with a routine background questioning, that can be hazardous to a deponent because A. the deponent becomes used to innocuous questions and lets his guard down and does not focus on what is being asked, so a question may not be answered entirely correct. B. everyone who is deposed has had a lengthy and detailed background check. C. any background questioning is usually used for criminal charges. D. these questions usually upset and challenge the deponent to where he may take physical action against the deposing attorney. ANSWERS TO STUDY QUESTIONS 1D 2A 3D 4A 5A 6C 7B 8C 9A 10A 78 CHAPTER VII - REQUESTING OTHER ACTION, ADMONITIONS & BACKGROUND REQUESTING OTHER DOCUMENTS/ACTIONS Depositions are not only about someone talking about evidence but can also be used to request certain documents or actions to be taken in line with the deposition. The most common instance is requesting documents, but it could also request the inspection of equipment at another location controlled by the deponent. Sometimes when financial information is requested, the deponent may not know that this information is going to be requested—often no one knows that it will be required until well into the deposition. In a case like this, it is entirely proper to leave certain amounts blank until the deponent has the opportunity to check on the amounts, and then fill them in later. It should be kept in mind that no one can require a deponent to do anything unless they comply with formal discovery rules. A deponent cannot be required to bring a document to the deposition, for instance, unless the deponent is served with a subpoena or request to produce a document. However, it is not unusual for attorneys to agree among themselves to produce certain documents, thereby cutting down on time and expense of the deposition. Anyway, the lawyers can probably get the material anyway through discovery procedures, so a refusal just adds to the adversary’s expenses, and tit-for-tat (whatever that means), the other party may need documents also. There is a little psychological advantage in providing documents painlessly—your case is so strong that you have nothing to hide. Conversely, if one fights providing a document, that is an indication that, Ah-ha!, there must be something to hide. There are two ways to look at this, though (aren’t there always?). If during a deposition, Attorney Jones asked the deponent, Smith, if he took any notes about what happened between him and Jones’ client. Smith replies that he did take the notes, but he left them at his office. Jones asked if Smith would bring them to the deposition tomorrow. Smith, now, has two ways to go. First, he could state to the effect that he thought that Jones was supposed to send him a written discovery request if he wanted any documents from him. Jones would probably reply that OK, that is generally true, but if he sends a formal request for production of documents so as to produce his notes, he would have to suspend the deposition until the notes are produced, and they will then have to meet again so Jones would have to depose Smith again. However, if the notes are voluntarily produced the next day, the deposition can be finished up tomorrow and they will not need an extra session to ask additional questions about the notes. At this point in the deposition the deponent might decide to furnish those notes tomorrow, which makes sense if his case is strong and he has nothing to hide, and if it is true, it will shorten the deposition. 79 However, if there are embarrassing comments in the notes, then he could politely refuse to produce the notes. Besides, the deposing party, who probably has other things to do, may not want them if he sees that it is going to be more expensive and take up more time, so he may not want to send out a formal notice. Of course, the deposing party may just forget to produce the notes. In any event, he would respond in effect, “To keep our legal relationship clear, I’d prefer that you send me a formal discovery request.” ADMONITIONS Now, back to the beginning of the deposition. “Admonitions” when used in relation to depositions take on a little different form that the usual definition of “…advice or caution from the court to the jurors…” or “a reprimand or cautionary statement addressed to counsel by the judge…” (Black’s Law Dictionary). In a deposition, “(A)dmonitions are the preliminary matters that the attorneys usually review with deponents before getting into the substance of their testimony.” (“Nolo’s Deposition Handbook”) Some admonitions explain the procedures expected during the deposition, others are given for the purpose of making sure the deponent is in good physical and mental condition and understands the instructions that he is given. Examples would be informing the deponent of the purpose of the court reporter, another might be asking if the deponent is on any medication or has any physical condition that might interfere with their deposing. There are several purposes of the admonitions, one of which is simply to “break the ice” and to make everyone more relaxed since they are usually all among strangers. But as one may expect, there are those who use the admonitions to attempt to create an atmosphere of friendliness. The deposing attorney(s) may use them to appear fair, honest and nonpartisan, very concerned about the welfare of the deponent. And if the deponent falls for that, then they are a good prospect to buy some swampland in Florida… The deponent must understand that the interests of the lawyers and deponents present are different. Another use of admonitions is for the deposing attorney to be able to attack the credibility of the deponent if the testimony is contradicted later. They are used to cut off explanations which are being offered to justify a change in the testimony. This is effective in situations where, as an example, in the deposition the deponent testified that the plaintiff was walking in the pedestrian lane when struck by the car then later changed his testimony to where the plaintiff was stepping off the curb when the light changed and he was hit by the car. When he was asked by the deposing attorney as to his change of testimony, the deponent could not very well state that originally he had been taking medication and that affected his memory as he stated in the admonition that he was not taking medication. The reasoning probably would not convince a judge or jury and the testimony would carry little credibility. Admonitions, it should be understood, are not legally required. Actually, each admonition is a result of past experiences as attorneys have been confronted throughout the years by very clever explanations for changing testimony, so new admonitions have been developed. Some examples of admonitions: 80 Q: Mr. Jones, my name is Robert Climchek and I am the attorney for Mr. Higgins. For the record and just so there will be no misunderstanding, let me describe to you what will happen during the deposition. Mrs. Kearney has filed a lawsuit regarding an accident that happened on May 26th …(capsule of basis of the deposition). Today, I am going to ask you about what you witnessed on May 26th that may be relevant to that lawsuit. My questions and your answers are being taken down by the court reporter on the machine that is placed in front of you. The court reporter cannot record nodding or shaking of the head so each question must be answered verbally, do you understand? A: Yes, I’ll try. Q: When I start a question you may feel that you know what the question is going to be and what your answer will be, but it is much easier for the court reporter if you let me finish the question and ask for your answer before you start to answer. Can you do that? A: No problem. This approach is appreciated by the court reporter as it really helps to produce a more accurate transcript by reminding the deponent that the court reporter cannot do her job if there are two voices speaking at once. Q: Have you ever been deposed at any time in the past? A: Once. The fact that the deponent admits that they have been deposed previously can be used later if he claims that he was confused about what happens at a deposition. Of course the attorney will want to know what that deposition was all about as it can educate him in exactly how the deponent will act during the deposition. Q: Do you understand that you are testifying at this deposition under oath, just as if you were in a courtroom, and you must tell the truth under the penalty of perjury? A: Yes. Q: Do you also understand, then, that this testimony is as important and as significant that it would be if you were actually in a courtroom testifying before a judge and jury? A: Yes. Q: Therefore, you will tell the truth at this deposition, won’t you Mr. Jones? A: I will. This will maybe not completely eliminate, but certainly will inhibit, the possibility that the deponent will change his testimony, or to add other testimony later. These admonitions have the effect of intimidating most witnesses so that they will take the deposition seriously and it is important, and further, there will be consequences. 81 Q: Mr. Jones, if you do not understand the question, please do not answer it. Just tell me that you do not understand the question. Will you do that? A: Sure. Q: If you answer any of my questions, I will assume that you understand the question and that you are giving me a truthful, accurate and complete answer to the best of your ability and recollection. Do you understand that? A: Yes. Now the deponent will have a difficult time in the future by changing the testimony on the basis that they did not understand the question. Q: Sometimes you may be able to understand the question but you really are not sure of the answer because the only way you can answer the question is by using an estimate or a guess. These impressions are important but I have to know when the answer is based upon an estimate or a guess—so if this happens, please tell me if that is the situation. Will you tell me when your answer is an estimate or a guess? Sometimes the admonition might be: Q: Sometimes you may be able to understand the question but you really are not sure of the answer because the only way that you can answer the question is by an estimate or a guess. Please do not guess at all and let me know that is why you cannot answer the question. This eliminates the deponent testifying later that his answer was only a guess. Some attorneys do not like this latter format of the question because it has a tendency to discourage deponents from even making a conservative estimate, and there are times when a guess or estimate can help a deposing attorney to uncover some important evidence. Q: If you get tired during a deposition or if you feel that you need a bathroom or stretching break, please let me know and we will take a break. Is that OK? Obviously, this admonition shoots down any later change of testimony by the excuse that the deponent was too tired to think straight, or had to go to the bathroom so bad they could not think of anything else except to answer the question so they could leave, etc. This is a pretty weak excuse to be used later because at the beginning of the deposition, the deponent was told that he is entitled to a reasonable break, and can end the testimony for that day if he feels too tired. Q: After you have answered a question to the best of your ability, later in the deposition you may recall some additional information in relation to the question you were asked earlier. If this occurs, please just tell me that you have remembered something more about the earlier question and then you can tell me the additional information. Is that alright with you? 82 A common occurrence and this admonition actually encourages the deponent to remember something that he may not have remembered earlier. Also, this stops a change in testimony because the deponent was aware of the additional information at the time of the deposition, but by the time that he had remembered it, the questioner had moved on to another question. Q: At times when you are answering a question you may realize that in order to answer the question truthfully and completely, you may have to refer to some written material or notes that will help you to refresh your memory. If that happens, just tell me that the documents will help you to answer my questions better and then we will see what we can do about that, OK? This is a good admonition as it encourages the deponent to testify completely and accurately, and to eliminate some guess work. If a deponent needs to refresh his memory, he may not otherwise tell the deposing attorney that as it may seem that he is too dumb to remember the details. A smart deposing attorney would love to get his hands on any such notes in any event. Actually, what else could the attorney do? If he did not allow the deponent to get documents to help him recall certain important information, the deponent could blow the whole deposition out of the water at trial by stating that his testimony was different because he later had a chance to review his notes. Q: After the deposition has been completed, the court reporter will type up my questions and your answers into a transcript. If you want to, you can review the transcript and sign it as being accurate under penalty of perjury. You should be aware that if you want to make any changes in the testimony after you review it, I and any other lawyers in the case, may point out to the judge or jury that you made those changes. That is why it is so important for you to give the most complete answers that you can to my questions today. Also, do you understand that the lawyers may make comments to the judge or jury about any changes that you make in the transcript of your testimony in the deposition? Q: (also) I should point out that if you make any changes in what you testified to in this deposition, and you make these changes during testimony in court, then the lawyers in this case may ask you why there were changes in your testimony, do you understand that? —Further strengthening the admonition to the deponent that any changes in the testimony will be questioned, so the deponent must testify accurately and completely. Next, without going into specifics and depending upon the situation, the deponent could be asked during admonitions regarding health and taking of medications. If the deponent admits to taking medication, then questions must be asked in respect to how that medication affects the deponent’s ability to remember or testify completely and accurately. Also, a question regarding whether the deponent uses alcohol or has had any alcohol that day, is a commonly asked question. The admonition contains instructions to the deponent that if they should feel bad or have a difficulty remembering things, that must be passed on to the deposing attorney. Just another way of closing the barn doors. 83 BACKGROUND QUESTIONS After the admonitions, the deposing attorney usually then goes to background questions. However, if the deponent is a non-party witness the background questions usually will be short as it would otherwise extend the deposition’s length Background questions are important and nobody can deny that, however there are background questions and there are background questions(?). To start with, the background questions are usually used to establish rapport between the deponent and the deposing attorney. If the deponent can be fooled into thinking of the deposing attorney as nice guy who is just doing his job and who wants to know what happened as much as anyone, then, just maybe, the deponent may provide more information than what the attorney asked, or even expected. Another common tack is for the attorney to mix in questions about some important issues with the routine background questions. Remember the example of the sexual harassment case where the deponent admitted to a noise copy machine outside of his office so he possibly could not have heard any conversation between the plaintiff and the defendant?—this could have been asked during the background questioning, asking what the deponent did, where he worked, how many coworkers, what was outside of the office, etc. This would be asked during background questioning as the deponent would more likely pick up on the implication that he could not hear conversations between others because of the copy machine if he was asked that question during the testimony when he was thinking about that situation. During the background questioning, it might just slide on by without being recognized by the deponent as to what the implications of the question were so he would not object to the attorney implying that he could not hear, etc. Employment If there is a gap in employment of a deponent, a lawyer will jump on that (like a cat on a June bug…) and the deponent will have to explain why. This would give the attorney ammunition in case he does not like the deponent’s testimony. Since, in today’s environment, people change jobs frequently and some are out of work due to layoffs or circumstances beyond their control, the deponent does not have to “apologize” for being off work, but should truthfully tell exactly why there was a gap in employment. Questions related to employment are particularly important if there is any employmentrelated evidence to be given in a particular case. Some examples could be: A sexual harassment case where the plaintiff is suing her employer. The lawyer for the employer will question her job performance, relations with other employees, conversations with other employees related to the case, and will also question her in detail about previous jobs such as the working conditions at the previous job, why she left, her relations with her employer and other employees, etc. A case where the plaintiff is asking damages for wages lost due to an auto accident, the lawyer will question the plaintiff as to what he did for a living, his salary history, what he expects to lose in salary over the next year or so, what function he is not going to be able to perform, etc. 84 A sexual harassment case would lead the lawyer to inquire about how long the plaintiff was on the job, what the job entailed, the interaction between the sexes at the jobsite, previous employment and were there any indications of sexual harassment there, etc. What a deposing attorney fears the most is to be surprised at trial by important evidence that should have been discovered at deposition. In order to avoid this, sometimes lawyers will ask case-related work questions during background questioning. For instance in a sexual harassment case, the attorney may ask if the deponent has ever personally been involved in a sexual harassment case and if the answer is “yes,” then the deponent should be prepared for detailed questioning. Education The deposing attorney will often choose to try to obtain a timeline as to the educational background of the deponent. Questions usually start at high school graduation and continue through college and post-graduate education, and even job-related education can be very important. A deposing lawyer will ask about education because they are trying to determine the general achievement level of the deponent. While a formal education is not a good indicator as to how “smart” a person actually is, they are aware that a judge and jury will evaluate the credibility of the witness by their education. Educational history is within the scope of discovery and is usually explored by the deposing attorney. Other Background Questions While educational and employment background questions are usually asked at a deposition, there can be many other subjects of interest to the case at hand. If a negligence case involves an injury suffered while participating in a sport, then the deponent’s experience with the sport, or perhaps any similar sport, may be important as an athlete sometime has a different take on the dangers involved in sports. If a case involves computer knowledge, then it would be appropriate to question the deponent about their knowledge of computers and their education in that field. Religion can sometimes be examined, such as a witness in a malpractice case that is a Christian Scientist, etc., ad infinitum. STUDY QUESTIONS 1. Depositions are basically someone talking about evidence, but they can also be used to A. prove criminal charges for perjury. B. public relations press releases. C. slander a party to the deposition without fear of retaliation. D. request documents or actions to be taken in line with the deposition. 85 2. When financial information is requested during a deposition and the deponent was unprepared for such a question, A. the amount can be left blank and filled in later after the deponent has had a chance to check on the amount. B. the deponent must make an educated guess which will then become part of the record. C. the deponent may object to the question on the grounds that it is highly personal and private. D. then the deposition must be recessed at that point until such time that the deponent can obtain the necessary information. 3. A deponent is not required to produce a document unless A. the deposing attorney recesses the deposition to give the deponent time to obtain the document. B. the deponent is served with a subpoena or request to produce the document. C. the deponent and his attorney agree that such document can be produced. D. the court so orders that any document requested be produced, regardless of confidentiality or privilege. 4. There can be a psychological advantage to a deponent who readily produces all requested documents because A. he knows the judge will throw them all out at the trial. B. that could indicate that their case is so strong that they have nothing to hide. C. according to the FRCP rules, for every document that is produced, the opponent must produce a similarly-important document. D. this gives a hidden warning to the other party that the deponent is willing so spend a lot of money on the case as it is expensive to produce documents. 5. In a deposition, the preliminary matters that the attorneys usually review with deponents before getting into the substance of the testimony, are A. introductory questions. B. preface statements. C. admonitions. D. preliminary statements. 6. One of the main purposes of admonitions is to A. “break the ice” and to make everyone more relaxed, as they are among strangers. B. threaten the deponent with criminal charges if they do not answer questions correctly. C. review with all parties, laws, rules and regulations regarding perjury and misstatements. D. get the court reporter used to the ebb and flow of questioning and to regional accents that a deponent may have, so that there will be fewer errors in transcribing. 86 7. Another use of admonitions is for the deposing attorney A. to make his presence and authority known to all involved. B. to be able to attack the credibility of the deponent if the testimony is contradicted later. C. to add the “admonition” surcharge to the legal bill for the deposition. D. to define privilege and attorney-client confidentiality to all parties involved. 8. Admonitions A. are legally required. B. may be made at any time during a deposition, particularly if they affect privilege. C. are not legally required. D. have recently become illegal or considered unethical, at least, in most states. 9. One background questioning technique used by some deposing attorneys is to A. mix in questions about important issues with the routine background questions. B. totally ignore background questions until at the very end of the deposition. C. make the deponent repeat the answer to every background question so that the deponent will get irritated and flustered and make mistakes in testimony. D. not ask questions, but just to instruct the deponent to “tell us all about yourself.” 10. A deposing attorney may concentrate on the deponent’s educational background because A. he will then know what level of grammar to use in his questioning. B. they know that judge and jury will evaluate the credibility of a witness by their education. C. they are trying to impress the deponent about how superior their (attorney’s) education is contrasted to that of the deponent. D. it will use up more billable time. ANSWERS TO STUDY QUESTIONS 1D 2A 3B 4B 5C 6A 7B 8C 9A 10B 87 CHAPTER VIII - PRIVILEGED COMMUNICATIONS THE PROTECTION OF “PRIVILEGE” The rules may be very broad, but there are certain very important exceptions to discovery. FRCP 26(b)(1) limits discovery to information that is “not privileged,” while Florida does it quite nicely and succinctly by a phrase, “not privileged” in the first sentence. This should not be a surprise, indeed it would be surprising if discovery were not so restricted, as courts have recognized for a long time that certain evidence, even though relevant, must be protected from disclosure in a lawsuit. Throughout the years the courts have crafted privileges where some policies that favor confidentiality take precedence over access to information. Legal scholars have pointed out that the courts have decided, rightfully or wrongfully, to protect interests and relationships that are regarded as of “sufficient social importance to justify some sacrifice of availability of evidence relevant to the administration of justice.” (McCormick, Evidence, 5th Ed. 1999 § 72, p.114) As soon as “privilege” is mentioned, thought immediately goes to the attorney-client privilege which needs no further description. That privilege was born of the need of the protection of full and frank communication between an attorney and the client—such privilege is an established rule of law. Therefore, there must be some protection in the discovery process to protect an attorney or the court from the effect of “eavesdropping” when the attorney and his client converse in private. As discussed later in the section on interrogatories, if a plaintiff sends an interrogatory to the defendant wherein he asks whether the defendant had discussed the incident of interest with his attorney, the defendant can object that this information is protected by the attorney-client privilege. Even though the conversation between the defendant and his attorney may be extremely relevant to the incident, the policy of confidentiality outguns the need of the plaintiff for this information. Other confidential privileges are recognized by the courts, such as the communications between a priest and a parishioner, between a doctor and patient, psychotherapist and patient, and even between husband and wife. Again, many television programs would not be created if it were not for the confidentiality – there seems to be a rash of exotic privileges developed recently, even though many of them have not stood the test of trial. A librarian has tried to claim confidentiality in what books a customer reads (fell apart by the Patriot Act), a teacher maintains confidentiality with conferences with students, a business (of all kinds) protecting their customer lists, etc. This discussion is not to argue what should be privileged and what should not, but only to point out that courts may protect certain information if they consider it privileged because if they do, that information cannot be revealed by discovery. BASIC PRIVILEGED COMMUNICATIONS This discussion of privileged communications should start at the basics—even though countless hours of law school are dedicated to this very important subject. In this text privileged 88 communications apply to discovery only and if a layperson is to be deposed, the attorney must be able to communicate to the deponent just what questions he can answer and which he cannot because of privilege. A deponent does not have to answer a question which is the private communications, either written or oral, between persons who are in a relationship that a state or federal law recognizes as privileged. Therefore, this would apply for either party or nonparty witnesses. A communication is privileged only if it is made in a legally confidential relationship. This would therefore exclude any conversation “in the strictest of confidence” between friends or business associates. Legally confidential relationships do not necessary mean only legal communications are privileged, but it also means the communication between doctor and patient, and even between spouses. So, if a professional is going to be deposed they will undoubtedly be aware of what they can communicate and what they cannot because of the doctrine of privileged communications. The rules vary among jurisdictions, however some are static and would be applicable to most of the situations. Needless to say, the laws are very complex. If a deponent is to be questioned about something that they said or had written, and they are concerned that it should be privileged, it is the job of their attorney to let them know if they can discuss it in a deposition. There can be a risk here for a deponent as if they fail to claim a privilege to which they are entitled, then they have waived the privilege and cannot reclaim it later. If, on the other hand, they claim a privilege that is not applicable to the situation about which they are deposing, the deposing lawyer may adjourn the deposition and seek a court order requiring the deponent to reveal the communication. If the judge agrees to that request, the deponent may also have to pay any expenses the deposing lawyer incurs by having to seek the court order and rescheduling of the deposition. This is of importance practically only to those deponents who are not represented by counsel, as anybody that is represented by counsel should be confident that the counsel will not let them go there if they shouldn’t, or vice-versa. If the deponent is not represented by counsel, they should at least obtain the advice of a lawyer before proceeding. If the deposition is in respect to a case in a state court, then that state’s privilege rules apply. If they are involved in a federal case, but the legal claims will be decided under the laws of the state in which the federal court is located, the federal court will apply that state’s privilege rules. The federal courts have “diversity” jurisdiction and the power to decide civil cases involving residents of different states, as long as the amount of the dispute is $75,000. Therefore, if a snowbird from Ohio spending the winter in Florida, is involved in an accident with a resident of Florida, then the Florida federal court would decide the case under Florida state rules, including Florida’s privilege laws. If the case is a federal question case, then the federal privilege laws will apply. This is an interesting situation because there has been so much dissention and arguing over the scope of the federal privilege laws, that they are not listed in the Federal Rules of Evidence. Federal Rule of Evidence 501 states simply that federal privilege issues are decided under common-law principles. Therefore, one must find federal privilege laws in judicial opinions and not in statues. 89 WAIVING THE PRIVILEGE ACCIDENTALLY An attorney must instruct his client who will be a deponent, that privileges are subject to exceptions, and if a privilege communication is not treated as confidential, then it will no longer be privileged. If the deponent discusses the case in an elevator or in a crowded bathroom or in a bar or restaurant where it can be overheard by others, the privilege can be considered as waived. Even if the confidential discussion between the deponent and his lawyer is mentioned to a friend or next-door-neighbor, for instance, the privilege can be waived. Some lawyers fail to notify the deponent of the ways that privilege can be waived by the action of the deponent, if the deponent seeks legal advice from the attorney, but does not then hire the attorney to represent him at the deposition. It makes no difference if the deponent hires another attorney, or just represents himself, the communication with the attorney is privileged. OTHER EXCEPTIONS TO ATTORNEY-CLIENT PRIVILEGE Seeking legal advice so as to perpetrate a crime or fraud. This is an obvious exception, but sometimes is not fully understood. If a person seeks legal advice from an attorney so that he can cheat on his income tax, that would not be privileged. Attorney-client lawsuits If a client sues his attorney for legal malpractice, the case-related conversations between the client and the lawyer are not privileged. Joint Clients If two persons seek legal advice on something of interest to them both, but they end up suing each other, then the conversations that they had with the attorney are not privileged. It does not make any difference if both clients were present or just one when the conversations were made. Joint-defense privilege Closely related is the rule that a defendant can assert the attorney-client privilege to protect a confidential communication made to a codefendant’s lawyer if the communication was related to the defense of both defendants—often called the common-interest doctrine. Spousal Communications Communications between spouses are privileged in all states, and also in federal lawsuits. Therefore, at deposition, the deponent does not have to reveal any communications they have had with their spouse in relation to the case. For example Jack and Jill, a married couple, are in Jack’s SUV when it is struck by another car. Jill says, “Look, that guy driving that car is drunk.” Jack says, “Are you sure—he doesn’t look drunk to me.” Jill says, “I know a drunk when I see one and look, he is weaving all over the street.” During their individual deposition, they both insist that the driver of the other car was obviously drunk or under the influence of something or other. The deposing attorney senses a little difference of opinion here because of the way that the question was answered. However, there is nothing that he can do as conversation between spouses is privileged. 90 Example: Muhab’s parents came to the U.S. from a Middle Eastern country and are Muslim, and speak some Parsi with his parents. He has noticed that since 9/11, fewer people talk to him at work, something he has discussed often with his wife. His supervisor, in particular, has been very hard on him at work—there seems to be nothing that he can do right. Muhab and two other workers were moving a piece of expensive machinery when the packing broke and the machinery broke into little pieces. Muhab was blamed for the entire episode although he actually only had a small part in the accident, and he was fired. He talked it over again with his wife, who had recently passed the bar and was a practicing attorney herself. She suggested the course of action that he should take, including filing suit and hiring an attorney with her firm who is experienced in wrongful termination cases and discrimination. He files suit against the employer. At the deposition the deposing attorney, representing the employer, asks questions regarding his conversations with his wife over the job and the termination, and also asks about conversations he had with the attorney from his wife’s law firm. Privileges exist for both his wife and his attorney. Penitential communication No—this does not have anything to do with prisoners communicating with others… Private communications between lay members of a religious organization and religious officials (priests, rabbis, ministers, preachers, etc.) provided that their religious practices require them to maintain the confidentiality. This has been a source of television and movie dramas for years, particularly involving the Catholic church, usually between a priest and a parishioner during confession. This privilege is extended as penitential communications are not subject to any exceptions, because of the states not wanting to interfere with religious practices. Physician-patient communication This, and the psychotherapist-patient communication, is fodder for television and movie situations. Such communication consist of private communication between doctors and their patients, communications with patients with nurses of other medical personnel relating to the patient’s physical or mental condition, or treatment thereof. This also extends to Chiropractors, Dentists, Physical Therapists, and such. Before a new patient is accepted for medical treatment, they are usually required to complete a lengthy medical history form (except in the case of an emergency, of course), and this form, and all other medical records, are privileged. The most common exception to this rule of privilege is when the physical condition is an issue in a court case. Malpractice cases and conversations with medical personnel after an injury are not privileged if they relate to the case. As example as to when this could become an exception would be if a person was stuck near his eye by a flying object as the result of an action by the defendant. The conversation with the medical attendant regarding eyesight would not be privileged in a lawsuit for negligence. 91 Another is the peer-review privilege which goes hand-in-hand with the physician-patient privilege. This is the privilege that protects from disclosure the proceedings and reports of a medical facility’s peer-review committee, which reviews and oversees the patient care and medical services provided by the staff—could be important in a medical malpractice suit, for instance. Psychotherapist-patient communications This is similar to physician-patient privilege but also covers mental health professionals, rape crisis counselors, domestic violence counselors, and such. Others privileged relationships States vary as to other relationships that are privileged, such as parent-child communications, communications between accountants and their clients, and in other business and institutional settings, a communication between an ombudsman and another party, such as an appointed ombudsman and a student at an educational institution. There is an informant’s privilege which is a privilege that a government can invoke to prevent disclosure of the identity and communications with its informants. This can be overcome if a party can demonstrate that the need for the information outweighs the public interest in maintaining the privilege. (McCray v. Illinois, 386 U.S. 300, 312, 87S.Ct. 1056,1063 [1967]) CLAIMING PRIVILEGE Of course, if during a deposition a question is asked that would require privilege being waived, then the attorney for the deponent has the responsibility of objecting. Sometimes, though, a deponent decides for himself that he will not worry about privilege in answering a question that he feels very strongly about—as an example, the deponent wanted to stress how serious he considered an injury in response to a question by the deposing attorney, so he comments on communications between himself and his doctor. It is not always possible to completely control what the client says in a deposition, especially is he is strong-willed and feels strongly about something. The client should always be informed prior to the deposition that once the privilege is waived, then he has opened the door and he cannot close it later. If he testifies as to what his doctor said, for instance, then he later cannot refuse to answer questions regarding other communication with his doctor. A deponent should always be instructed that no matter how much the deposing attorney threatens the deponent in order to get him to reveal privileged communications, even threatening to “take him to court” to get the question answered, the deponent must stand fast and follow his attorney’s instructions. Also, if the claim of privilege is reasonable but not correct, i.e., the deponent did not have privilege, the worse that would happen is that the judge would require the deponent to answer the question. WORK PRODUCT OBJECTIONS Another major objection under Rule 26(b)(1), and Florida 1.280(b)(5), is the “work product” privilege which effectively disallows production of certain information or materials that is developed in anticipation of litigation. 92 This privilege was outlined nicely in the case of , 329 U.S. 495 (1047), and quoted in Civil Procedure, 4th Edition,( Joseph W. Glannon). The plaintiff’s counsel in a case for wrongful death, asked for discovery of the notes of the defense counsel in respect to interviews with witnesses to the sinking of the tugboat that caused the death. Further, he requested interrogatories that would produce the substance of other interviews with the defendant’s attorney, that the attorney had conducted but had not reduced the interviews to writing. Simply put, he wanted the opposing counsel to write down all of memories of the situation in response to interrogatories. The opposing counsel refused to produce either the written notes of the interviews, or any information regarding the interviews that had not been previously recorded, using the argument that this discovery would interfere with his trial preparation and the privacy which he needed to fulfill the needs of his client. This case quoted above occurred prior to Rule 26 having an exception to discovery for trial preparation materials. However, the efforts of the plaintiff’s attorney to secure information that was in the files and in the mind of the attorney, raised hackles at the Supreme Court for several reasons. The first and foremost reason was obviously that of confidentiality of preparing for trial. The opposing client could figure out the opponent’s strategy by learning through discovery as to who he had interviewed and what was discussed. Also, it would be difficult to separate the actual information from the attorney’s thought process that developed the information. Indeed, if this were allowed, the opposing attorney could determine the approach his opponent was taking and he planning on interviewing witnesses, etc. If this were allowed, lawyers would stop taking notes which would have the effect of not improving the quality of legal representation. The court also was concerned that by allowing discovery of the trial preparation materials, lawyers could sit back and let opposing counsel do all the work, and then obtain the results through the discovery process. While this is not a good way to prepare for trial anyway, because if discovery were allowed it could encourage this inaction. The Supreme Court also was concerned about the possibilities of lawyers ending up as witnesses in their own cases if the statement that they produced contradicted other testimony from the same witness. Interesting thought, but one can see why the Court was perturbed over this possibility. Therefore, the Court denied production of the requested information but they did not do so in a manner that would bar production of all such attorney work product. The Court simply indicated that written statements given by witnesses might be subject to discovery if the party showed a need for the material satisfactorily, and also showed an inability to obtain it through other means. The Court also at this time, expressed serious doubt that a lawyer’s mental impressions or personal notes on a witness interview would ever be subject to discovery. Obviously, the Court was incorrect in their assumption that this information would be subject to discovery, so some twenty years later, the FRCP codified the “work product” doctrine in Rule 26(b)(3), (Florida 1.280[b][3]). “…a party may obtain discovery of documents and tangible things otherwise discoverable … and prepared in anticipation of litigation or for trial by or for another party 93 or by or for that other party's representative (including the other party's attorney, consultant, surety, inseminator, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. …” Note that even when a showing is made that there is a substantial need for the materials and cannot substantially obtain equivalent information through other means, etc., the “mental impressions, conclusions, opinions or legal theories of an attorney” is henceforth protected from disclosure. Under this rule, there are three categories of “work product,” starting with documents prepared in anticipation of litigation containing information that can reasonably be obtained through other means, from which discovery is barred. For example, in the Hickman case, the witnesses were available for plaintiff’s counsel to interview and depose, discovery of statements made by these witnesses to the counsel of the defendant, was denied. If the requesting party demonstrates that they have a substantial need for materials developed in anticipating of litigation, and that this information cannot be obtained otherwise without substantial need for materials developed in anticipation of litigation, and further, that similar information cannot be obtained without substantial hardship, then the court may order production of the materials. However, opposing counsel’s thought process in preparing a case, including legal theories or litigation strategies that may be used, also called “opinion work product,” cannot be discovered. Actually, the purpose of the work product privilege was to keep hard-working attorneys from having to turn over the fruits of their thought and labors to free-loading attorneys. It does not take much imagination to think of many situations where an attorney has worked hard to gather evidence for the protection of his client, such as gathering depositions from several witnesses. If it were not for the privilege, he would have to turn all of the summaries over to opposing counsel. Obviously, that is not fair. Only an attorney or a pro se litigant can claim the work product privilege and a non-party witness does not have the right to claim that privilege. A pro se litigant can find themselves in a situation where they wished they had an attorney if they find that the hard work that they had done in preparation for the trial must be revealed to their opponent’s attorneys, for them to tear it to pieces at trial. If they do not claim the work product privilege that is what could happen. 94 A defendant in an auto accident that is being deposed by the plaintiff, has given the name and address and phone numbers of a potential witness as required. The defendant has gathered notes from that witness to enable her to use it in the deposition and the trial if needed. The opposing attorney demands to see the notes, but the defendant can refuse to turn it over as it was “prepared in anticipation of trial.” If that occurs, and the opposing attorney goes to court to get the defendant to release the notes, if the request for privilege is reasonable, the judge would protect the defendant from releasing the notes. If they were not considered as privileged work product, then the judge could require that the notes be turned over to the opposing attorney. Again, if a person wants to act as their own attorney (pro se defendant, for instance), if a situation like this arises, they will wish that they had an attorney. FIFTH AMENDMENT PRIVILEGE Another type of privilege that is often dramatized by Hollywood, is the 5th Amendment right of every American not to incriminate them—privilege against self-incrimination. This means that in a deposition, the deponent can refuse to answer a question if they reasonably expect that their answer might help to establish that they engaged in criminal activity. If the truthful answer might help the authorities in investigating or prosecuting a criminal case against the deponent, he should refuse to answer, whether he is a party or a non-party witness; regardless if the question is asked at a deposition or a courtroom; or even if the deponent is testifying at a civil case and not a criminal case. It does not make any difference as to what kind of case in which the individual is testifying, the privilege is concerned with what use the testimony will or can be used. Actually, it is very rare that a person would be in a situation where they would have to refuse to answer on the grounds of self-incrimination. If the criminal statute of limitations has expired, then the privilege cannot be invoked. Sometimes attorneys are hesitant about allowing their clients to testify in a civil case about a situation the might cause criminal charges to be made against them, but they should not be because they are afraid that others might think the person is guilty just because he refuses to answer questions. This should not be cause for concern as there are many innocent people who have had charges filed against them and who have invoked the 5th Amendment privilege. Even guilty people should not hesitate to use the privilege as our system of justice does not allow for people to be compelled to provide testimony to support their own conviction. PRIVATE INFORMATION According to FRCP 26(b)(1) questions must be reasonably calculated to lead to the discovery of admissible evidence. Florida 1.280(b)(1) states: “It is not grounds for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” The reason for these rules is ra- ther obvious, it attempts to eliminate fishing expeditions into an individual’s private affairs. The deponent should not be asked, nor should a deposing attorney ask, questions about personal and private information that is totally unrelated to the case or is so unrelated that even if disclosed, would not be “reasonably calculated to lead to the discovery of admissible evidence. Such questions would subject the deponent to annoyance, embarrassment, oppression or undue burden or expense.” (FRCP 26[c]). 95 Florida 1.280(c) states: “Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires,…” However, it is important to remember that the definition of “reasonable” is not set in stone and if the questions ask for information relating to the case in hand, then they are proper even though they relate to highly private matters. One of the jobs of a lawyer at a deposition representing the deponent is to object to questions asking for personal or private information that does not appear related to the case. If the lawyer for the deponent misses that point, the deponent certainly may object to the question on invasion of privacy grounds. Either way, the lawyer for the deponent may ask the deposing lawyer to explain exactly how the question is reasonably calculated to lead to admissible evidence. If the deposing lawyer is unable to provide a satisfactory answer, then the deponent should be notified that they do not have to answer the question. If the deposing attorney does not agree that the privacy claim is legitimate, he always has the right to terminate the deposition and go to court to get a court order demanding that the deponent answer the question. Sometimes the deposing attorney will threaten to go to court for the order, stressing how much more expensive the deposition is going to be, etc., etc., and then if the bluff is called, they will just act indignant and continue with the deposition. Before an attorney terminates the deposition and asks for a court order, they will usually ask the deponent several questions all related to the same topic, so that it will go on the record along with the refusal of the deponent to answer them. Then, if the judge agrees that the questions were pertinent and reasonable, then the deponent must answer the questions, and it is also possible that the judge would order the deponent to pay the lawyer’s expenses related to the motion plus legal fees. Therefore, the deponent should not answer only if they do not want to reveal the private information and are confident that the information has no bearing on the case. If the judge orders the deponent to answer the questions, the deponent had better answer the questions, so their attorney had best impress on the deponent the importance of answering the questions then and the severity of the consequences. STUDY QUESTIONS 1. FRCP and Florida rules limits discovery to A. federal court cases only. B. Florida court cases only. C. intro-jurisdictional cases only. D. information that is “not privileged.” 96 2. If in an interrogatory the plaintiff asks the defendant whether he had discussed the incident of interest with his attorney, A. the defendant must answer the question honestly and completely. B. the defendant can object that this information is protected by the attorney-client relation ship. C. that question should have been addressed to the defendant’s attorney. D. the court would rule that the entire interrogatory and all other interrogatories in this case are null and void and none have to be answered. 3. A communication is privileged only A. if it is between an attorney and his client, or a physician and his patient only. B. when it is made in a legal setting, such a courtroom or deposition chamber. C. if it is made in a legally confidential relationship. D. if it is made on a conversational manner without anticipation of legality. 4. If a defendant in a case attends a neighborhood party and discusses the case in full details with friends and relatives and disclosing what would be privileged communications between he and his attorney, A. that would have no affect on privileged communications status in the case. B. that information would no longer be privileged as by his actions, in effect the defendant had waived privilege. C. by his attorney notifying those that heard the defendant, either by mail or phone, that this was privileged information, the information then retains its privileged status. D. if these statements were made 24 hours prior to deposition or court testimony, then the legal privileges stand. 5. Privileged communications may exist between A. a defendant and his brother-in-law. B. a defendant and his spouse. C. police officers during an arrest. D. a veterinary and a customer who owns a dog treated by the vet. 6. If, during a deposition, a question is asked that would require privilege being waived, A. then the privilege is waived and there is nothing the deponent can do. B. the question may be answered without waiving privilege, if the answer is written and given in an envelope marked “Confidential” to the deposing attorney. C. the deposition must be recessed and the counsels must meet with the judge in his chambers to discuss the problem. D. the attorney for the deponent has the responsibility of objecting. 97 7. The rule that effectively disallows production of certain information or materials that is developed in anticipation of litigation, is called A. material misrepresentation. B. anticipatory restriction. C. work product privilege. D. premature production restriction. 8. When work product may be ordered for the purpose of discovery because the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means, the court may protect against disclosure of A. identification of otherwise-unknown witnesses. B. identifiable documents otherwise unknown that would have impact on the case. C. mental impressions, conclusions, opinions or legal theories of an attorney. D. any financial information. 9. The work product privilege can be claimed only by A. an expert non-party witness. B. an attorney or a pro se litigant. C. a deponent. D. a defendant at trial. 10. If the attorney for the deponent does not object to questions asking for personal or private information that does not, on its face, appear relevant to a case, A. the court will object for the attorney, and will disallow the deposition. B. the court will sanction the attorney asking for the personal or private information. C. the deponent certainly can object to the question on ground of invasion of privacy. D. there is nothing that anyone can do at that point. ANSWERS TO STUDY QUESTIONS 1D 2B 3C 4B 5B 6D 7C 8C 9B 10C 98 CHAPTER IX - EXPERT WITNESSES DEFINITION As a general rule, witnesses testify to facts that are relevant to the case. They testify as to who entered the intersection first, who was present when the incident occurred, where and when trucks unloaded, what comments or statements were made in their presence, etc. In some cases, an “expert” witness is called, even though they may not have been present when the incident in question occurred or have had any other personal interest. Again, back to Black’s: An “expert” is “a person who, through education or experience, has developed skill or knowledge in a particular subject, so that he or she may form an opinion that will assist the fact-finder.” Fed. R. Evid. 702 There are three types of experts: Consulting expert is one who, though retained by a party, is not expected to be called as a witness in a trial. A consulting expert’s opinions are generally exempt from the scope of discovery. Impartial expert is an expert who is appointed by the court to present an unbiased opinion. Testifying expert is an expert who is identified by a party as a potential witness at trial. As a part of initial disclosures in federal court, a party must provide to all other parties a wide range of information about a testifying expert’s qualifications and opinion, including all information that the witness considered in forming the opinion. FRCP 26(a)(2)(b) Florida (1.390(A) identifies expert witnesses as : “The term "expert witness" as used herein applies exclusively to a person duly and reg ularly engaged in the practice of a profession who holds a professional degree from a un iversity or college and has had special professional training and experience, or one p ossessed of special knowledge or skill about the subject upon which called to testify.” The “special knowledge or skill” does not necessarily mean that the “expert” must have degrees in the field, or served in some public capacity as an expert in the field, but he may just have had a lot of experience. For instance, Farmer A is suing the Southwest Water Conservation Board (SWCB)who regulates the flow of water in a certain river. During a recent drought, the SWCB diverted water into public land in violation and Farmer A maintains that his crop suffered badly, to the tune of $1.5 million, because he did not have sufficient water for which he was entitled to under the rules of the SWCB. The SWCB brings for its expert witness, one of its mem- 99 bers who has a Ph.D. and has written his Master’s dissertation on water conservation and has served on the board for over 15 years. The court allowed the SWCB member to be recognized as an expert witness. Farmer A, on the other hand, brought his neighbor, Farmer B, to court as an expert witness. Farmer B did not have any degrees in water management, but was the fourth generation farmer of the land and had kept voluminous records of water flow and its affect on the crops on his land and on his neighbors. He could also be accepted as an expert. Of course the Ph.D., etc., of the SWCB member would be impressive to the court, whereas Farmer B would have to prove his knowledge in order for him to be taken seriously as an expert. Assume, however, that this trial took place in Mississippi and Farmer B was one of the largest and most successful farmers in the state, and the trial is held before a jury of mostly local farmers. PERSONAL KNOWLEDGE There is an important point to keep in mind in determining who is an “Expert.” In many involved and complex cases there are witnesses who have specialized knowledge of the facts because of their work experience who are not experts. Assume that in a wire-transfer fraud case, the banks system analyst who knows exactly how the computer system operates in its transferring of funds, is called as a witness. He can testify how the system was programmed and the steps that the system employs in order to transfer funds. This is factual evidence about the case, acquired independently of the fraud case litigation, and obtained through the normal course of business. A plaintiff could depose this employee on how the money is transferred as under Rule 26, he is not an “expert.” He would be testifying on behalf of the bank, and not in an information-only basis for the judge and jury—although he will educate them, that is certain. Any opinions that he may have is subject to cross-examination. Sources of information differentiate the experts and non-experts, which are diametrically opposed. The non-expert can only testify on basis of personal knowledge—only what they have seen, heard, smelled, touched, or otherwise directly experienced, i.e., percipient witnesses. Deposition evidence rules are not as strict as at trial, so most of the testimony of a non-witness usually deals with information of which the non-witness has personal knowledge. By contrast, experts are not limited by the personal-knowledge rule and as long as information on which the expert relies is of a type “reasonably relied upon by experts in the particular field” the expert can use it to in order to arrive at an opinion. For example, a bank is being sued by Roberts who had wired a substantial sum of money to the bank, and when he went to withdraw some of the money, he discovered that the money was not in his account. The plaintiff, Roberts, is charging that the defendant (bank) fraudulently transferred his money to another location. The defendant maintains that (1) it never received the wire transfer, and (2) it had been “hacked” into so that the bank was never actually in possession of the money. Witnesses that were called and deposed consisted of the bank “IT” (information technology) supervisor who testified that he had never seen the wire transfer into the bank; the system analysts who is an employee of the bank and testified as how money is usually transferred into and from the bank using the present computer system; and an independent computer 100 programmer who is highly regarded in his field as being able to discover the identify of “hackers.” The IT supervisor is not an expert witness, although he will testify as to the technical aspects of the wire transfer in describing the normal practice of receiving money by wire transfer and how it related to this case. The system analyst would be an expert because he had no personal knowledge of the alleged wire transfer, but he can educate the judge and the jury on how the bank’s computer system operates. The independent computer programmer could testify as to how a hacker could get into the system and short-circuit the transfer and send to the funds to another bank, probably an off-shore bank and definitely he would be an “expert witness.” Experts can be used to provide all kinds of important and pertinent information to the court such as a medical expert can testify as to why a person needed a medical procedure, what the procedure entailed and what can be expected as a result of the procedure. They can be called to explain how money goes from one bank to another, using computers. They can testify as to why a bridge fell down, why an automobile went into a skid, why a residence is uninhabitable, and etc., ad infinitum. EXPERT OPINIONS Experts do not necessarily have to testify to facts, but they can offer opinions on issues that are critical to the case. A psychiatrist may testify as to whether psychiatric care was provided in a professional manner, or how a person can be expected to act in society, or whether a mental condition can ever be cured. An actuary can be called to provide an opinion on how long an individual may live with a certain condition. There are many, many experts available to cover about any technical situation that needs expert testimony, and there are almost always experts to disagree with the expert testimony. In most cases, when an expert is called by one party, the other party will call another expert to counteract the previous expert testimony. Experts do not necessarily need to be called as a “testifying expert” but often they are hired to help the party understand issues in a case, even though they may not intend to be put on the witness stand to testify – or even if they plan to use another expert to testify. Often a witness may be the most expert in his field and his opinion carries a lot of weight in his field, but for other reasons, the counsel does not want to put him on the stand. So once he has determined what the opinion should be, he finds another, perhaps more attractive, expert in the field that fortifies what the non-testifying expert has opined. There is no doubt that experts can relate important information on a complex case which would be very important to one party or the other, so therefore, their testimony is discoverable under the Rules. However, the Federal Rules and some others in other states, contain special provisions restricting the right to obtain pre-trial discovery from the expert witnesses of the other party. Florida has special rules (1.280[B][4]) that are very close to the Federal Rules. Parties are required to disclose the names of their testifying experts at least 90 days before trial along with a report concerning their expert opinions and their basis for the opinions, their qualification, compensation, and other such information. Florida’s Rule 1.280(b)(4)(A) states: 101 “…A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, …or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” It is required (under Federal Rules) that the names of their testifying experts be revealed at least 90 days before trial (Florida required a reasonable time – 1.280[b][ii][iii]) After disclosure, the testifying expert may be deposed as well under Rule 26(b)(4)(a) (Florida 1.360). The reason for these rules is rather interesting—experts cannot be cross-examined thoroughly at trial without the opportunity for the opposing counsel to conduct discovery concerning their opinions and the basis for those opinions. On the other hand, experts who do not testify—non-testifying experts—are another matter and are treated differently. The FRCP rules do not require that the identity of the person be disclosed, or that opinions be disclosed. A party can seek discovery concerning these non-testifying experts only upon their showing “exceptional circumstances.” (FRCP 24[b][4][B], Florida 1.280[b][4][B]) What do non-testifying experts do that would allow them this protection? They are actually very involved in the preparation of the case for trial and one of their principal functions is to educate the counsel on procedures and the ins-and-outs of a particular profession. They can develop theories of recovery, they can go through testimony to determine what is relevant, they can prepare exhibits to be used in the trial—often for jury education—and they also can provide expertise in preparing witnesses to testify. There are those non-testifying experts who are hired by the counsel (on either side) to help determine jury selection—and they have been depicted in recent movies and television programs. It is rather obvious that if discovery were allowed, this would allow opposing counsel to dig deep into the trial strategy of the other side, and would deeply affect the effectiveness of the open exchange between counsel and his own experts. Actually, expert witnesses are forbidden from testifying on topics that are fully within the scope of the average judges (and juror’s) training and experience. As an example, an expert witness cannot testify that, in an ordinary negligence suit, that in his opinion, the defendant was driving too fast—that is for the judge and jury to decide. However, if the expert in accident reconstruction testified that because of the length of the skid marks and the condition of the pavement, it is his opinion that the car had to be going at least 55 miles an hour before he tried to stop, then that is considered as expert testimony. RELIABILITY OF EXPERT TESTIMONY Because our society is becoming so “technical” the courts have become very concerned that jurors (even judges also) could be misled rather easily by “experts” peddling phony and unreliable opinions which are presented as scientific “facts.” Up until the past 10 years or so, courts were required to apply the “Frye” test (named after a Supreme Court case) whereby an expert could testify only if the theories underlying his opinion were generally accepted within the field of expertise of the “expert.” 102 However, the Supreme Court has recently discarded the Frye test and has decided that judges can admit expert testimony if it can be proven to the judge that the testimony is “reliable.” Interestingly, the testimony may be “reliable” even if others in the expert’s field do not agree or accept his theories. This should have little, if any, practical effect on depositions. Before these rules were changed, lawyers would usually ask an expert in a deposition, questions that were designed and intended to bring to light weaknesses in his testimony, which then could be used later to attack the expert’s credibility during the jury trial. Now, lawyers can use these weaknesses to show that the expert is not only not credible, but that the expert is also unreliable, thereby blowing the expert’s testimony out of the water in many cases. FEES FOR EXPERT WITNESSES An expert witness can charge the party who retains the services of the witness for all of his services on a case. These charges can include reviewing files, independent research, conducting tests, attending and testifying at the trial. Some experts charge an hourly rate, and some charge flat fees. As a general rule, experts who charge flat fees usually appear repeatedly in similar cases so they have a reasonable basis for estimating the time required for a particular case. If the witness is hired by one party, and that party wins the case, usually the hiring party will request that the losing party pay all expert fees. Some experts accept court appointments, such as psychiatrists and psychologists who agree to evaluate parties as requested by the court, and they generally charge lower fees than they would charge others. Expert witnesses should always make arrangements that are contained in a written contract. Attorneys may not pay expert witnesses on a contingency basis as it is unethical to do so for the reason that it provides an expert witness an incentive to slant testimony. For example, in the bank fraud case discussed previously, assume that the independent computer programmer with experience in catching hackers, was hired on a contingency basis by the attorney for the bank. The expert could easily testify that hackers are so expert at what they do that they are nearly undetectable, and that a financial institution that is “hacked” is not responsible for funds being lost as a result. Conversely, if he were hired by the attorney for the plaintiff, he could give the same accurate testimony but could leave the impression that hacking is so common and the culprits so easily identified—indeed, he catches them all the time—that the bank would appear negligent in not taking stronger action against hackers, such as installing more complex firewalls, etc. Florida 1.390(c) states “An expert or skilled witness whose deposition is taken shall be allowed a witness in such reasonable amount as the court may determine. The court shall also determine a reasonable time within which payment must be made, if the deponent and party cannot agree. All parties and the deponent shall be served with notice of any hearing to determine the fee. Any reasonable fee paid to an expert or skilled witness may be taxed as costs.” 103 In other words, everything has to be “reasonable.” The purpose of “reasonable” is to prevent the expert witness from charging an exorbitant fee which would tend to discourage the adversary from deposing the expert witness. From the eyes of the expert witness, the party that retained the expert pays for all of his efforts with a case including testifying fees. However, the adverse party is legally responsible to pay for the time the expert spend testifying at a deposition. (FRCP 26[b][4][C]) Therefore, as a general rule, the party who retains the expert usually pays for preparation time by the expert, and the deposing party pays for the time that was spent testifying. Florida 1.280(b)(4)(C) states” Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery… and concerning discovery from an expert obtained…the court may require, and concerning discovery obtained under…(th is) rule shall require, the party seeking discovery to pay the other party a fair part of the fees and expenses re asonably incurred by the latter party in obtaining facts and opinions from the expert.” So as to make sure that the deposing party pays the expert witness fees, the contract with the party retaining the expert should specify that the expert will be paid for all of the time that they spend working on the case and, further, it is not the responsibility of the expert to make sure that the deposing party pays. By this means, if the deposing party does not pay the expert his fee, then the retaining party must pay the fee. Actually, this rarely arises because if the deposing party has not paid the expert’s fee, the party who retained the expert will simply refuse to allow the expert to be deposed. In some places, the local custom is for the deposing party to pay the fee to the party who retains the expert, not to directly to the expert. NON-RETAINED EXPERTS COMPENSATION Occasionally, whether an expert witness may be paid as an expert witness, or treated as a non-party witness, will depend upon whether the witness is asked to give expert opinion at the deposition. To illustrate this, usually doctors are used as examples because if they give their professional opinion, they charge their usual fees. However, if the doctor testifies as to something that they have seen, then they cannot charge their expert witness fees. Another situation is where a doctor testifies to the contents of medical records—this not considered as “expert” witness testimony, although they are likely to be asked to explain some notations in the medical records. Doctors sometimes ask for expert witness fees in these case, and sometimes they are paid and sometimes not. As an illustration, in a lawsuit where the defendant was sued for fraud and embezzlement, the independent auditor is asked about accounting entries in the company’s books, for which he would probably be treated as an ordinary third-party witness and paid a nominal witness fee. However, if he is asked how did the defendant “cook” the books in order to embezzle such funds, then that would probably be considered as “expert” testimony and the auditor could refuse to answer unless his usual professional fee for time spent was paid at the deposition. (FRCP 45(c)(3)(B) 104 DISCLOSURES PRIOR TO DEPOSITION If the party who retains the expert expects to call him as an expert witness at trial, there are certain requirements imposed by FRCP 26; and Florida 1.280(b)(4)(A) which states: “Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of …(this) rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows: (A)(i)By interrogatories a party may require any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial may be deposed in accordance with rule 1.390 without motion or order of court. (iii)A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial: 1. The scope of employment in the pending case and the compensation for such service. 2. The expert's general litigation experience, including the percentage of work performed for plaintiffs and defendants. 3. The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial. 4. An approximation of the portion of the expert's involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services. An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and other provisions…of this rule concerning fees and expenses as the court may deem appropriate. (B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in rule 1.360(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” Under FRCP Rule 26, similar disclosures must be made, but with some variation. Under Rule 26 the retaining party must voluntarily disclose the identity of the expert to the adversary even if the adversary does not make a formal request, and the retaining party must also send to the adversary a written “disclosure report.” The expert prepares the disclosure report, usually in consultation with the attorney for the retaining party. This report should contain 105 opinions of the expert, reasons for arriving at these opinions, information previously considered prior to arriving at said opinions, exhibits that will be used at trial to summarize or support such opinions, qualifications of the expert to give expert testimony and recent publications, if any, fees of the expert, a list of other cases in which the expert has testified as an expert, either in deposition or trial, over the preceding four years. The retaining party has to submit all this information to the adversary, generally within a 90 day period prior to the trial. A shorter time, usually 30 days, is necessary if the expert has been hired solely to rebut an adversary’s expert. In case one wonders why they even make an expert witness attend the trial because of all of the information that must be included in the disclosure report pretty much says it all. The reason is, obviously, that the opposing attorney must have the opportunity to dig into all of the details of the written material and dig out all generalities and vagueness in the deposition testimony, thereby making it more difficult for the expert witness to change his opinions at the trial. DEPONENTS NON-TESTIFYING HEALTHCARE PROFESSIONALS Experts in the healthcare field are often hired to examine patients and prepare reports and they will not be expected to testify at trial. The most usual example is a person that is injured and who is thinking of filing a personal injury lawsuit may hire such a professional to provide a physical examination and to advise on the seriousness of the injury. The adversary is allowed to depose this professional even if not expected to testify at trial. But, in order to get the expert to testify, the adversary has to first obtain a court order requiring the professional to appear for a deposition. If the court orders a deposition, then the expert will also have to furnish the adversary with a detailed written report. PRE-DEPOSITION INVOLVEMENT An expert witness may be called upon to testify about more than one activity that was performed by the person who retained then. As an example: Assume that the plaintiff, Ross, was suing an estate planner, Ralph, who had been hired by Ross’s mother, Zelda, to do an estate plan for her. Ross, who also represents several insurance companies, did not inform his mother that she could purchase long-term care insurance in case she had to go to a nursing home or become infirm. Ralph had written to Ross, who lived several states away, and assured him that his mother would be taken care of financially for the rest of her life, and that she had made provisions so that he and his sister would inherit at least the value of her estate at that time. Zelda had has a series of “small” strokes and had to be confined to a nursing home for 4 years before she passed on. Ralph had advised her that she should take a reverse mortgage and use those payments to pay for the nursing home. However, the home was only worth part of what Zelda had to pay for the expensive nursing home that she had chosen, so when she passed away, the home and most of her savings were gone. Ross estimates that when the estate plan 106 had been made, the home was worth $200,000 and she had about the same amount in savings. Therefore, he is suing Ralph and his employer, Torch Agency, for the professional malpractice. Ross meets with his attorney, Susan, and shows her the estate plan and the bills that she had to pay for the nursing home and the letter in which Ralph had stated that the estate value would be “approximately” what it would have been at the time the estate plan was completed. Susan was an experienced litigator but not familiar with the technicalities of estate planning, so she hired Duncan, a well-known accountant and estate planner who has testified in several malpractice cases in which estate planning was involved. Duncan’s normal fee is $200 per hour. At this stage, he charged for four hours of preliminary work to determine whether Ross has a good case or not. Susan collects all the necessary papers and sends them to Duncan. After reviewing the material, Duncan notifies Susan that in his expert opinion Ross has an excellent case against Ralph and his agency. Duncan also points out that there is no indication of any kind, that Ralph made Zelda or Ross aware that since she was in good health when the estate was planned, she was an excellent candidate for long-term care insurance; and that according to the State Insurance Department, Ralph was authorized to represent three companies that had long-term care insurance in their portfolio. Sue suggests to Ross that they may consider hiring another accounting firm that does estate planning as Duncan is a little pricey. Another accounting firm is approached but they indicate that what they would do would be to hire Duncan as their expert. This is not possible as there is an obvious conflict-of-interest. So Sue and Ross hire Duncan and file a lawsuit. Ralph and Torch Agency hire the law firm of Dubray, Way and Zorp (DWZ) who files an answer denying that Ralph was responsible for the deterioration of the estate of Zelda. During pretrial, both sides send out interrogatories and take depositions of people that they expect to testify for the other side. During this time Duncan continues to act as consultant for Susan and advises her as to the questions she should ask Ralph in respect to how the estate plan was drawn up and why the long-term care insurance was not mentioned. Duncan agrees to testify for Ross as an expert witness at the trial, if it goes to trial, in which case his role would be to describe what Ralph did wrong in his estate plan, including not referencing long-term care insurance, and explain why the mistake constituted a failure to use at least ordinary skills— which is what Susan has to prove to win the suit. 100 days prior to trial, Susan discloses to DWZ that she plans to call Duncan as an expert witness at trial. She also send a written report which sets forth Duncan’s expert opinions, his reasoning for arriving at those opinions, the information that was considered at arriving at those opinions, and exhibits that Duncan plans to use at the trial, Duncan’s qualifications as an expert which includes several published articles on estate planning, Duncan’s fee and a list of the other cases in which Duncan testifies as an expert witness. Upon receipt of the material, DWZ sends Duncan a Subpoena re Deposition, notifying Duncan of the time and place of the deposition. DWZ will have to pay for Duncan’s time at his fee of $200 per hour so he can attend the deposition. Before the deposition, Susan and Duncan meet to discuss the questions that the lawyer from DWZ is likely to ask at the deposition and how Duncan should answer those questions. Susan may have Duncan review the depositions taken of other witnesses in the case. She may have Ross attend the other depositions in person, or not, whichever she feels would be the most effective. 107 Fester of DWZ deposes Duncan. Before deposing Duncan, Fester should have read the disclosure report of Duncan’s. He may have also hired an estate planning accountant, attorney or professional, to consult with and testify at the trial if necessary. When consulting with their clients, Ralph and Ross, Susan and Fester may discuss possible settlement of the case. Duncan’s deposition will undoubtedly have a strong influence on whether the case is settled, and if so, on what terms. If Duncan presents a strong testimony as to why Ralph goofed, and if Duncan is good on the stand as an expert, testifying clearly and concisely, then there is a good chance that Fester will agree to settle. If the case is not settled, Duncan will testify on Ross’s behalf and Duncan and Susan will probably get together to prepare for Duncan’s testimony. Ross will pay for Duncan’s time to prepare and testify, and again, will ask the judge to order Ralph to pay these costs if Ross wins the lawsuit. This example produces a scenario that is common to many types of cases and it is obvious that the expert witness in this case (Duncan) wears many hats and is active in the lawsuit from pre-deposition to settlement or trial. PLANNING AND PREPARATION OF EXPERT WITNESSES The importance of a good expert witness cannot be overstated and the witness needs to be aware of how important his role is. They must be able to fully understand not only their specialty—what their expertise is—but how to present their knowledge in the best light for the party that is retaining them. They need to be aware that most cases are settled and the deposition testimony of each party’s expert witnesses are the primary factors that shape the settlements. As an example, assume Bronson purchases a life insurance policy on the life of his wife for $200,000. Bronson and his wife discover they just do not get along with each other, and their daughter is usually in the middle of the arguments and things are worse now that she is a teenager. The morning after one particularly heated argument, Bronson’s wife disappears. After five years, Bronson makes claim for the $200,000 as that is the time in their state for a person to be presumed legally dead. His daughter has always maintained that her mother is still alive, but Bronson believes this to be just wishful thinking. His daughter receives a birthday card every year which the daughter maintains is signed by her mother, but Bronson maintains it is one of his daughter’s aunts that are trying to keep his daughter’s spirits up. The life insurance investigator maintains that it was, indeed, her mother sending the cards. The insurer hires Fresco, a handwriting expert, formerly with the FBI, who testifies at the deposition that he was able to compare the signature on the cards with that of the signature on the application. Further, since the envelopes were kept by the daughter, he was able to compare that handwriting with other documentation that the mother had written earlier. He also had been able to compare the handwriting of all of the aunts and cousins and female relatives that could have sent the cards to the daughter, and none of them matched the signatures. This deposition testimony would cause Bronson to either drop the lawsuit or to agree to a settlement for much less money. Pre-Deposition Planning Meeting A lawyer that hires and expert witness will certainly want to meet with the expert before the deposition. A lawyer that meets with his expert the day of the deposition because he is so confident that the expert will testify as to what he expected, is foolish. Things can happen! 108 The expert witness cannot meet with the lawyer prior to the deposition due to some previous commitments. There have been attorneys who have only talked to the witness over the telephone prior to the deposition, and then have been shocked when their expert witness shows up for the deposition and is not what they expected in looks, bearing, attitude, or even sometimes, in personal hygiene. The opposing attorney cannot wait to get that witness on the witness stand in front of a jury… Some expert witnesses may have a hidden agenda. For instance there are those who would love to testify in behalf of a physician who is known to perform abortions, particularly if the medical procedure under scrutiny in the trial has problems with an abortion or an unusual type of abortion, as they would welcome an opportunity to blindside the abortion doctor in a courtroom setting. And vice-versa. Often it does not hurt to do a little investigation into the background of an expert witness just to make sure they are what they are supposed to be. Perhaps all attorneys should conduct a “practice deposition” with expert witnesses as the best way to avoid surprise. Sometimes the attorney retaining the expert witness, has personal knowledge of the area of expertise of the witness. In most cases this is a good thing, as the expert witness can quickly get a feel of how the testimony should go. However, sometimes the attorney may have strong ideas about how an expert should testify, and the expert does not agree. There can be friction at the practice deposition (“mock trial”) as when the attorney comments on the answers of the expert witness, the witness may disagree with the attorney. The best rule is to reach an agreement where both parties give a little, forget egos for the moment. EXPERT WITNESS DEPOSITION FORMAT The format of the expert witness deposition follows that of most depositions, with certain differences and the questions themselves will vary somewhat, depending upon the field of expertise and the “style” of the attorney. AT THE BEGINNING The start of the depositions is usually routine for both expert and non-expert depositions. Admonitions As discussed earlier, the admonitions are preliminary questions, the intent of which is to slam the door and lock it on the deposition testimony. If the witness has been deposed previously, then these admonitions are “old hat” but they will need to be repeated nevertheless just in case the expert witness decides to change his testimony. Documents The next step usually is for the expert witness to identify any documents that were used for preparation for the deposition, and to release these documents to the deposing attorney—unless they have already been released by other discovery methods. The evidence rules permit the deposing party to request and examine any documents that the expert witness looked at to refresh his memory for the purpose of testifying at the deposition. The same goes for other documents that were prepared or consulted for the purpose of the deposition, whether they were used for recollection purposes or not. 109 Sometimes the case file that the expert witness brings to the deposition will contain documents that are not “discoverable,” i.e., they should be withheld because of privilege. The retaining attorney must go over all of these documents, one by one, so that something contained in one of the documents should not be released to the deposing attorney because of privilege. Don’t forget that once privileged information has been released, it can no longer fall under the protection of privilege. The expert witness should be informed prior to the deposition, that the documents should be hygienically clean, i.e., there should be no notes in the margin or written comments on the documents, as they could be embarrassing or create more questions, and in the worse case, could put a cloud over the professionalism of the expert witness. Background Also routine are the questions regarding the educational and occupational background of the expert witness. For non-expert witnesses, these questions are just preliminary to the important questions of what they saw, heard, smelled or tasted. However, an expert’s specialized background is exactly what it is that qualifies the expert to give testimony. Therefore, the expert witness can expect to be questioned extensively about their background in the deposition. Questions will be asked about Education and professional training, which normally is a detailed review about graduate and undergraduate studies, continuing education courses, technical training courses, and certificate courses. Professional and work experience, such as job titles, responsibilities, and an excursion into previous positions along with reasons for changing jobs, etc. Professional activities, such as any awards or honors, membership in professional organizations, peer review organizations, etc. Previous expert experience, such as what cases has the expert testified in previously, for whom, and whether they testified at a trial or deposition. An expert witness who has never testified before may become a little nonplussed at some of the questions and wonder why is the lawyer asking questions about such irrelevant (to the expert) and miniscule things? There can be a lot of reasons that an attorney asks questions of a person who has all of the credentials to be a good expert witness: Is the expert witness a “generalist” or a “specialist?” For instance, a “family doctor” may give expert testimony on a nerve condition as the result of an accident, however a neurologist would be a much better expert. Has the expert witness had practical experience in his field? A college professor may have written books about his profession, won scholarly awards and is held in high regards in his field; however, if he has had no practical, personal experience in the field, then the opposing attorney will want to obtain the services of a professional with credentials, both academically and professionally. A jury is much more interested in an expert who has served in his field and has experience in the area, than an academic who can only quote from someone else’s experiences. Does the background of the expert qualify him to testify specifically in respect to the facts of the case? A CPA can testify as an expert for accounting problems, but 110 if the case relates to the accounting procedures of a large corporation, while the CPA may be an excellent tax accountant, a CPA who has audit experience would be much more valuable of the testimony addresses falsification of accounts. Is the expert witness, a “professional” expert witness? Much like the college professor who writes text books and reference books in his field, and was introduced as the man “who has written more books than he has read,” some people make a career out of being an “expert” and are available for expert witness services at any time. These “experts for hire” become well known to the legal profession and some are called upon many times. It takes time to prepare for a court trial or deposition, such time is taken away from practical and actual experience. One other thing, experts who make a career out of being an “expert,” cannot always be “on the winning side,” so an astute attorney would find out about where a case was resolved in direct opposition to his testimony, and may bring this up in court in an attempt to discredit the witness. In the same vein, are the opinions of the witness “etched in stone?” If the witness always appears in court on behalf of one side, always, this could suggest that the witness will envision the facts of the case to be in line with his biases, rather than analyzing the problem. If these weaknesses or shortcomings do exist, the deposing attorney will bring them up later in the deposition, rarely at this stage of the deposition. NOW IS THE TIME TO BLOW YOUR OWN HORN While some expert witnesses love the background questioning, and you can actually see them preen like a peacock when they get the chance to talk about themselves, there are those who are just the reverse. Some of the most brilliant minds in the country are introverted and do not like to talk about themselves, however if they are going to be expert witnesses, then they must let their background be known in detail. In the same vein, it is important for them to provide complete answers to questions regarding their backgrounds. It is not sufficient to say, “I have been in this field for many years,” and then proceeds to give their expert opinion on a subject. The more detail, the better. Sometimes the opposing attorney will attempt to cut off the background of an expert witness, claiming that the witness is becoming redundant, at which point the retaining attorney should insist that the background be detailed so that there is no question as to the expertise of the witness. Sort of rub-it in? For example, in an architectural malpractice case, there are two expert witnesses both of whom have Masters Degrees in their profession and both have had 10 years of experience in designing office buildings. “One” states during background questioning, that he has designed 8 large multi-story office buildings in the 10 years that he has been in the business, and has never had any problems with any of his buildings. In his expert opinion, the building in question was designed properly and easily with practical bounds of safety and efficiency—therefore any problems with the building must be due to other factors, principally inexperience of the general contractor…etc. 111 “Two” states that he has designed 9 multi-story office buildings in the past ten years. He designed the Tower Plaza in Kansas City 8 years ago, which won awards for design and efficiently by Modern Architects magazine and the Association of Business Architects. The Tower Plaza was 39 stories high, with the first totally revolving restaurant on the top floor, in the Kansas City area, costing over $400 million to build and even today, is the most desired business building in the area. He also designed the Conrad Hotel in Sausalito, California, which is a 500 room hotel spread over several acres of land, and because it is close to the San Andreas Fault, it was built in floating units making it nearly earthquake proof, as evidenced by the news reports after the last quake in that area…etc., etc. By the time that he gets around to testifying that in his expert opinion, there were flaws in the design of the building in question, guess who the jury is going to believe? This example may be a little extreme, but is used to illustrate that a statement that “I have been a (doctor, accountant, architect, lawyer, etc.,) for 10 years and in my opinion…”statement is not going to be adequate. HOW DID YOU ARRIVE AT YOUR EVALUATION/OPINIONS? The deposing attorney will probably want to know a chronology of case-related activities that are relevant to the situation at hand. He will want to know what you did in relation to the testimony, from the time that the notice of deposition was first received, to the present time that helped the expert to form his opinions and convinced him that he arrived at the correct opinion. Why? Actually for several reasons, some of which could be: Did the attorney who retained the expert witness furnish him with the proper and adequate information so that the opinion is based upon complete information, therefore the conclusion reached is not based on a distorted picture of the evidence. ? Did the expert agree to serve as an expert witness before any of the pertinent and relevant information was furnished? That would imply that the witness was less than objective in evaluating the facts and arriving at the opinion. The attorney, correctly, wants to make sure that the opinion is based on the facts in the case, and not on pre-conceived ideas of the witness. Are the methods that were used to arrive at the conclusion, flawed? The attorney will attempt to discover this by asking questions about what methodology was used to arrive at the opinions offered, what questions were asked and to whom, what research was performed (or not performed), and what other witnesses did this expert witness talk to in respect to the case. Who, if anyone, such as assistants or independent third parties, contributed to the opinions on the case at hand? This would lead to possible deposing of other parties. What exhibits have the witness prepared for the trial and when were they prepared? For an expert witness who has never testified before, they should be instructed when they are retained that they should keep a record, a chronology, of their actions in respect to the case, as 112 soon as they receive the notice of deposition. The architect in the previous example may have a chronology of relevant activities as follows: 2/15. Received call from Johnson, attorney for plaintiff suing Arch. firm Jones & Smith (JS). Agreed to review material and copy of file to determine if interested in expert witness situation. 2/17. Rec’d material from JS re: Schwartz Building, St. Louis. 2/18-2/24. Reviews material from JS and previous depositions. Review Arch. Digest articles on Schwartz Bldg. Call Hendrix, author of article, for further explanation. 2/26. Consults with Brandon, Arch. Re: unique building form of Schwartz Bldg. 2/29. Travel to St. Louis. Consult with Anderson Construction, re: Schwartz Bldg. 3/2. Personal tour of Schwartz Bldg. w/Johnson, VP bldg. mgmt. co. 3/3. Return to KC. Meet with Engineering firm Pederson, re: opinion on strength of internal braces Schwartz Bldg. 3/4. Review materials and make notes. 3/6. Review materials and make additional notes re: internal integrity. 3/12. Writes final report re: Schwartz Bldg. Arch. design. 3/18. Meeting with Johnson review report and opinion. 3/20. Deposition It may be a good idea for the expert witness to take the inventory with them to the deposition, but if they refer to it, then the deposing attorney immediately has the right to examine the document. Therefore, the retaining attorney should make sure that the document is “clean”—there are no notations on it that might embarrass the expert or the attorney or suggest that there is private information that might be of interest to the deposing attorney. In addition, the expert witness should make an inventory of all documents and reference material furnished by the retaining attorney. One can only imagine what would happen if during a deposition the deposing attorney produces a document that causes the expert to completely change their mind. That could mean that the expert would lose his fee as the retaining attorney would not want to pay the expert by claiming that the work was useless or careless. But, if the expert witness had an inventory of the material received from the retaining attorney, and it revealed that the document had never been given to the witness, that would stop any claim that the expert’s work was sloppy or unprofessional. QUESTIONING THE OPINION The deposing attorney will in all likelihood attempt to get the expert witness to commit to the specific factors on which his opinion is based. Those factors can be physical evidence, information from documents, information generated by the expert witness, and factual assumptions that are the basis for the opinions. For example at the deposition by the architect discussed above, if he were to testify to some building material or piece of equipment that he considered as faulty, that would be questioned. Most of his testimony will consist of the documents that he obtained from other architectural sources and as a result of his personal inspection of the building in question. He would rely 113 heavily upon his experience as an architect and various publications that addressed the problem with the building as he saw it. If he had an “assumption” it would be that there was something in the architect’s plans that went against his own beliefs and training as well as other authorities in the architectural field. The opposing attorney would undoubtedly question every step of the assumption, questioning the veracity of the articles and publications to which he referred, his reading of the architectural plans of the building in question, and why the expert believed that the architectural firm that designed the building was wrong and in what area and how bad they were wrong, etc, etc. Challenging the opinion Actually, the next step would be to challenge the opinion as the entire basis for the opinion has been discussed in the deposition, then the deposing attorney would probably challenge their adequacy. The factors that the attorney may use to make the challenge will depend upon the field of expertise of the expert and the factual disputes in the case. Many times this challenge starts out with “my information is different” (words to that effect). Often this is used even the attorney’s information is not all that much different, but in any event, he will probably start comparing the factors upon which the expert relied with opposing views of other experts hired by the opposition. The usual tactic is to quote other reports that seem to disagree with the expert’s position, i.e., “wouldn’t you agree that…” to which the expert deponent must not agree or it would shoot his credibility. Why didn’t you do more? Another challenge often used is “Why didn’t you do more?” The architect in the previous illustration that felt that it was important to personally tour the building in question and look at the original architectural plans at the scene, would be subject to the questioning as to why he didn’t talk to more local architects in the city where the building was, why did he not look at the plans of other office buildings in the vicinity or comparative size, etc., etc. Sometimes tempers fly at this point because of the “nit-picking” of an attorney who doesn’t really know what he is talking about (sayeth the expert witness) and he is questioning the professionalism of the witness, etc. The witness can appropriately say in many of these cases that the research that he performed was sufficient to support his opinion and that additional tests/research would be both a waste of time and of money. Some of the other things that the expert “could have done” could be something along the lines of “why didn’t you looked at authoritative articles/treatises written by those who disagree with you?” consult more experts?” obtain and study additional reports?” spoken to other experts instead of just reading their writings?” spoken to witnesses instead of just reading their statements?” made personal visits to the scene of the events, (or to similar places, etc.)?” 114 This “game” could go on and on, but as an expert, one of the things that he may need to testify to is that he knows when the “investigations” are complete to support an opinion. Bias? One of the most often used method of challenging the accuracy of the opinion of an expert witness is searching for possible bias. If the deposing attorney can find any indication whatsoever, however slender or miniscule, that the expert “has an ax to grind,” then he will attack that fiercely. Often the expert witness is taken aback when he makes a statement based on his professional judgment and he is accused of being biased in some fashion or other, therefore his testimony is, at the very least, clouded. Some of the things that the deposing attorney may delve into in an effort to prove bias could be, for example: the relationship of the expert witness with the attorney and/or party that retained him, such as asking if he had ever been employed by him, knows him, related to him, etc. the amount of time of the expert witness is actually spent on being an expert witness. As discussed earlier, juries often distrust “professional witnesses” as they feel that their opinion is for sale. the amount of the retainer and the compensation. While the expert may be happy with the agreed upon amount, it either may have to be defended or suggest the testimony is biased (for sale again). any statements made by the expert witness, particularly in publications if they are published. It is a certainty that the opposing attorney will have gone over everything that was written by the witness and if too technical, had others go over the publications, with the hope that they can dredge a few words or phrases that conflicts with the present opinion. Sometimes opinions change for legitimate reasons, so the opinion of the expert witness may change over time, and if so, he must be prepared to defend his present position. A good expert witness may be aware that he has changed his position on something, usually because of the growth of modern technology. It does not take from his expertise or his honesty to change in the face of changing technology and if the deposing attorney tries to make it something that it is not, many examples of what was “true” 25 years ago—or less—would be so different in today’s world. STUDY QUESTIONS 1. There are three types of experts in respect to civil law, a Testifying Expert, an Impartial Expert, and A. a Consulting Expert. B. an Academic Expert. C. an Engineering Expert. D. a Financial Expert. 2. An “expert witness” is a person who has “special knowledge or skill”, which means 115 A. B. C. D. the expert must have degrees in the particular field. the expert must have degrees and experience in a particular field. the expert may not have degrees in the field, but has had a lot of experience in the field. they must have had some legal training. 116 3. The basic difference between an expert and a non-expert witness at a trial, is A. a non-expert witness can testify only to what they have personally & directly experienced. B. a non-expert can testify to information that is reasonably relied upon by experts in the field. C. the expert witness is paid, the non-expert witness is not. D. an expert witness may testify only for the plaintiff. 4. Expert witnesses A. must testify to the facts only. B. may offer opinions on issues that are critical to the case. C. cannot be paid for their services. D. may not testify to any facts, only theory. 5. An expert witness who does not testify A. is treated the same as witnesses who testify. B. must be revealed by name and experience, etc, to the court 90 days before trial. C. is usually involved in the case preparation for trial and/or to advise counsel on details of a particular profession. D. may not be paid a fee for his services. 6. The Supreme Court has ruled that judges can admit expert testimony if A. the expert has a Bachelor’s or higher degree in his field. B. the expert has been “published” in a recognized publication. C. the expert subjects himself to private questioning by the judge in his chambers. D. the expert can prove to the judge that the testimony is “reliable,” even if others in the field do not agree or accept his theories. 7. A Witness fee for an expert or skilled witness whose deposition is taken, may be paid A. a fee that is published in the ABA guidelines. B. whatever they normally get for their services, plus 50%. C. such reasonable amount as the court may determine. D. whatever the traffic will bear. 8. Under FRCP Rule 26, when an expert witness is used, in addition to disclosing the identity of the expert witness, the retaining party must also send to the adversary a disclosure report, which should contain A. opinions of the expert and reasons for arriving at these opinions. B. factual, eye-witness accounts pertinent to the case. C. a list of other expert witnesses that may disagree with the expert in question. D. a list of personal information of the expert, such as work history, education, marital status, health history, etc. 117 9. Some expert witnesses are modest by nature and when undergoing background questioning, they have a tendency to gloss over their achievements. The retaining attorney should A. encourage the expert to be self-effacing and modest over their achievements as that will set well with a jury. B. to present detailed and precise information regarding his experience and achievements, emphasizing his expertise in the field relevant to the case. C. instruct the expert to give short and pre-mature answers, cutting off as early as possible, any question raised by the opposing counsel. D. require the expert to read a detailed list provided by the counsel, of all of his achievements, including education, work history, publishing’s, etc., until the judge tells him to stop. 10. For an expert witness who has never testified before, they should be instructed to A. put a notice in the local newspaper as to the fact that they are going to give “expert” testimony as that is good advertisement. B. keep a record in chronological order, of all of their actions in respect to the case, starting with when they receive notice of the deposition. C. not to worry about it, and no further instructions should be offered as otherwise it could be considered as witness-tampering. D. present all of the details of the trial as it progresses, to his peers as often as possible. ANSWERS TO STUDY QUESTIONS 1A 2C 3A 4B 5C 6D 7C 8A 9B 10B 118 CHAPTER X - INTERROGATORIES DEFINITION Although most of the previous sections of this text have been on depositions, actually interrogatories are probably the most frequently used form of discovery. According to our friend, Black’s Law Dictionary, an interrogatory is a written question, usually in a set of questions, submitted to an opposing party in a lawsuit as part of discovery. A Cross-interrogatory is an interrogatory from a party who has received a set of interrogatories. Just in case it ever comes up, there is also a special interrogatory which is only used in certain states and not in federal cases, and is a written jury question whose answer is required to supplement a general verdict (and has nothing to do with this discussion). Simply put, interrogatories are questions propounded by one party to an opposing party, seeking information relevant to the issues in dispute. (“Civil Procedure,4th Ed.” Joseph Glannon) In fact, they are not written by the parties but by the attorney for the requested party and usually are experienced in framing questions in an attempt to obtain the required information as fully as possible. A little later, we will see how all-encompassing an interrogatory can be. One thing that makes them popular: the great advantage of interrogatories is the fact that they are an inexpensive mechanism to get information from the opposing side. The reason that they are so attractive price-wise is that the only real cost is the time it takes to prepare the questions. If the case is relatively routine, there are practice books for attorneys that contain pre-prepared boilerplate interrogatories, so all there is to do is to add a few questions. However, they are very rarely drafted by anyone outside of the legal profession. The answers are drafted by the opposing party’s lawyers after consulting with their client. The answers are crafted as carefully as possible so as to reveal as little as possible, to avoid embarrassing admissions, and to massage the facts so that they will be in a more favorable light for the client. “[L]awyers who craft the responses (to interrogatories) seem to assume that it is their professional responsibility to be as stingy and self-serving in the answers they write as a strained view of the English language and the proper bounds of legal ethics permit.” (McCormick-Morgan, Inc, v. Teledyne Ind. Inc., 134 F.R.D. 275 [N.D. Cal, 1991]) Often there are objections raised that are based upon the discovery limits and privileges (as discussed in the earlier section on Depositions). Interrogatories are considered by many as the best and most effective method of obtaining basic background information, like the names and addresses of witnesses, location of records and other evidence, names of treating physicians, details of billing, and etc. 119 Further, they are very important to make an opponent specify the grounds of the claims that are raised in a complaint or answer, through “contention interrogatories.” Interrogatories are often used early in a case so as to assist in developing plans for further discovery through depositions and requests for documents. Since the adversary must answer the questions put to them by an interrogatory under oath and within 30 days (usually), the facts that are learned can help target later formal discovery. Since the interrogatory lists witnesses names and addresses, that is a normal starting point—to decide which of the witnesses to depose and also to identify the documents that are needed, Generally they are considered as superior as a method of eliciting organizational or “corporation knowledge.” If the opposing party is a corporation or other large business, the information that is needed can be spread among several parties, employees or agents. Sometimes it is a “crap shoot” to determine who has the knowledge that is sought by deposing one, or even several, employees, but interrogatories require the opposing party to gather information from all the employees and include this “corporate knowledge” in the response. Even the attorney representing the adversary may have to reveal information. An example of this often quoted in one form or another, would be where a plaintiff in an auto accident sends out an interrogatory asking the defendant to identify (such as) “all facts that indicate the defendant failed to exercise reasonable care at the time of the accident.” If the attorney for the defendant has already talked to a witness who claims to have seen the defendant consumer several drinks in a bar just prior to the accident, the defendant would have to include that information in response to the interrogatory. DISADVANTAGES There are a few disadvantages, starting with the fact that an interrogatory must be sent only to the adversary. If information is needed from a nonparty witness, such as a pedestrian who happens to see an accident, who refuses to speak to the party voluntarily, then the only way to get that information is by deposition. Another disadvantage is that according to the rules in most jurisdictions, there are only a specified number of questions that can be included in a set of interrogatories. Florida 1.340(a): “…the total of approved and additional interrogatories does not exceed 30.” FRCP 33(a) sets a limit of 25 questions plus reasonable number of sub-questions. If more questions than that are needed, or if it is felt that a second set of interrogatories is needed, then it is necessary to go to the court and secure the permission of a judge. Another disadvantage is that although the deponents personally have to respond to deposition questions, lawyers have a strong influence as to the wording of the interrogatory answers. This is where the fun comes in—lawyers, more often than not, suggest the narrowest possible answers, trying to conceal rather than reveal information that could reveal damaging information. Attorneys often try to avoid answering some interrogatories entirely by claiming that the questions are vague, ambiguous, and unduly burdensome to their clients, seek legal conclusions rather than facts, seek the attorney’s work product or violate the attorney-client privilege. Of course. Often these claims are, to say the least, specious, but nonetheless they put the burden on the interrogator to try to compromise on the problems by having a meeting and preparing a motion and gong to court if the conflict cannot be resolved. 120 Last, but not least, interrogatories are inflexible. What you read is what you get. The interrogator has to prepare an entire set of interrogatories before any answers can be obtained. This means that there is no chance to adapt questions to earlier answers, or even to follow up on answers that could be of considerable interest. ANSWERS UNDER OATH Yes, interrogatory answers must be signed under oath by the answering party. If the answers represent the collective contribution of more than one person, such as a corporation response, then typically an officer or director of the organization signs the answers. SUPPLEMENTAL ANSWERS What happens when a party learns that information which has been provided earlier was incorrect or incomplete—does the party have to provide a supplemental answer? “Yes”— as discovery rules impose continuing obligations on parties to supplement incorrect or incomplete interrogatory answers. (FRCP 26(e) & several places in Florida rules.) For example. a party answers an interrogatory from the defendant asking for the names of witnesses known to the plaintiff, “None” because none were known at that time. After a couple of weeks it is discovered that the plaintiff’s brother-in-law happened to see the accident but did not want to get involved until he realized who was in the accident. Then the plaintiff would have to amend the interrogatories to reveal the name of the new witness. TYPES OF INFORMATION THAT CAN BE OBTAINED BY INTERROGATORIES As a general rule in most jurisdictions, a complaint does not need to provide much factual information to the defendant. Therefore, the defendant may want to use an interrogatory to gain additional information and facts about what the plaintiff is claiming on the complaint. If, for instance, the person is a defendant to a property damage case, the defendant may send out an interrogatory asking “Please state the facts on which you claim that the defendant operated his tractor negligently.” The defendant’s answer in the above case may allege that the plaintiff was contributorily negligent—the plaintiff’s own carelessness caused or contributed to the accident. Then the plaintiff might send the defendant an interrogatory asking for the facts upon which he based his claim that the plaintiff was contributorily negligent. Sometimes the interrogator may ask for information about the adversary’s past conduct that might just be relevant to the legitimacy of the adversary’s claims. As an example, assume that John is the defendant, the plaintiff, Bill, is an ex-employee who claims wrongful termination because of age discrimination. John claims that the reason for the firing was consistent and excessive tardiness. John can use interrogatories to gather information about Bill’s previous employment records—the plaintiff may be required to disclose the “Name and address of each place of employment during the last ten years; your job title; your job duties; and the reason why you left that employment.” 121 AN EXAMPLE OF THE USE OF INTERROGATORIES This example is taken from various sources and is a compilation of various cases, interrogatories and answers. The case is fictional, and if any of those who read this text are frequently involved in cases where interrogatories are used, find flaws in the interrogatories, it should be no surprise as many attorneys have their own methods of questioning and wording for the interrogatories. This is just an example and whether it a “good” example or “lousy” example will depend upon the experience of the reader. Details The plaintiff in this 2002 case is Chris VanFleet, who resides in a two-story residence in a middle and upper class subdivision. The plaintiff had recently become aware of a crack running up the front of the house and extending down into the basement/garage. In order to control water seepage, the crack in the basement had been repaired from the inside to make it waterproof. In addition, the front stoop had pulled away from the house and the four-column portico over the front door had also pulled away from the house. The plaintiff met with the defendant, George Hermann of Hermann Construction Co., for the purpose of (1) fixing the crack in the front of the house and (2) removing the old portico and steps and replacing them so that they would not pull away in the future. VanFleet and his wife worked so they were usually not home during the day. While the portico and steps were being removed by bulldozer, the retaining wall on the driveway leading to the garage under the house, shifted and also pulled away from the house. The plaintiff asked the bulldozer operator, Johnson, if that would have an effect on the remaining work, but he referred him to the defendant. The defendant allegedly stated that the retaining wall moving should have no effect on the foundation or basement wall, and if it did, he would reinforce it with concrete if that was necessary. Part of the dispute in this case is exactly what Hermann had agreed to do to repair the foundation, porch/portico and retaining wall, and whether VanFleet had waived any agreement to rebuild it during their conversation at the job site. When it appeared that the work was nearly finished, the plaintiff inspected the worksite and noticed that there seemed to be other cracks in the front of the house and in the retaining wall. The plaintiff contracted with an engineer with expertise in foundations to look at the house, and the engineer concluded that when the dirt from the front of the house that was against the basement/garage wall was moved, it caused the foundation to settle even more and this caused structural damage. VanFleet attempted to get Hermann to address the problem, with no success, so the plaintiff sued George Hermann and the Hermann Construction Company, for damages. Following are interrogatories that VanFleet might serve on Hermann in the action: (For those not familiar with interrogatories, the format is the name of the court and its jurisdiction at the top center of the interrogatory (i.e., United States District Court, Northern District of California). Immediately following, on the right side of the paper, is the Civil Action number. On the left side is name of Plaintiff and name of Defendant(s). On the right side are identifications, i.e. PLAINTIFF’S FIRST SET OF INTERROGATORIES TO THE DEFENDANT, GEORGE HERMANN, UNDER FED. R.CIV.P.33. 122 Interrogatories must be served on all other parties to the action, not just the respondents. Usually these must be filed with the court although some courts do not allow the routine filing of most discovery materials, usually because of the burden of filing and storing these materials. In Florida a filing is required as indicated in 1.340(e): “…The interrogatories shall be served on the party to whom the interrogatories are directed and copies shall be served on all other parties. A certificate of service of the interrogatories shall be filed, giving the date of service and the name of the party to whom they were directed.” Following this heading is a statement such as : The plaintiff requests that the defendant George Hermann answer the following interrogatories under oath, and service his responses upon the plaintiff within 30 days, pursuant to Rule 33 of the Federal Rules of Civil Procedure. Interrogatories are listed by number thereafter) Interrogatories are addressed to defendant George Hermann, not to both George Hermann and Hermann Construction Company, together, as court permission is required to serve more than 25 interrogatories on any other party. Theoretically, Hermann Construction Company is a different party, regardless of the fact that it is owned by George Hermann, therefore the plaintiff can still serve 25 more interrogatories this way. (In Florida, 30 interrogatories is the limit before court permission is required.) With the limit on the number of interrogatories, attorneys will resort to questions with “subparts.” Note questions 12 and 18. Some courts may object and this could lead to lengthy discussions as to whether sub-questions such as these are really separate questions that could toward the limit. Of course legal fees continue to build during these arguments. 1. Please list each and every occasion on which you or anyone acting in your behalf or Hermann Construction Co discussed the terms of performance of the contract in issue in this action with the plaintiff. 2. For every conversation listed in Interrogatory #1 above, please state in detail the substance of that conversation, stating in chronological order what was said by each of the parties. 3. Please identify by name and address, each and every person who was present during each and every conversation between you and the plaintiff, prior to, during, and after the execution of the contract at issue in this action. 4. Please identify by name and address, each and every person who has any knowledge of the facts concerning the negotiations, execution or performance of that contract at issue in this action. Many of the interrogatories ask for the identification of witnesses and records that pertain to the case. Once these witnesses are known they can be interviewed or deposed. The answers to these interrogatories can then lead to a “Rule 34 Request for Production of Documents.” Automatic disclosure of supporting witnesses and records are now required (Federal Rule 26(a))as follows: “… a party must, without awaiting a discovery request, provide to other parties: (A) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information; (B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and 123 that the disclosing party may use to support its claims or defenses, unless solely for impeachment; (C) a computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered…” Quite often counsels will combine the interrogatories with a request to produce the documents that are identified in the answers to the interrogatories. 5. Please identify each and every document, letter, memorandum, or other record, whether in electronic or other form, of which you have knowledge, whether or not it is in your custody, possession or control, which contains any information concerning the negotiations, execution, or performance of the contract in issue in this action. 6. Please produce and identify each and every document, brochure, information sheet, advertisement, or other writing that describes the nature of the Hermann Construction Company or its experience or expertise in repairing houses with foundation damage. 7. For each of the documents identified in response to Interrogatory #5 and #6 above, please state whether such document is within your possession, custody or control and if not, state to the best of your knowledge who does have possession, custody or control of such document. If any of these documents in Interrogatory #5 or #6 or otherwise related to this event, have been destroyed or lost, please state for each document so lost or destroyed, the nature and content of the document, the name and address of the person creating the document, and the circumstances surrounding the loss or destruction of the document. 8. Please list the name and address of all persons who performed any services related to the work that forms the basis of this action. Further, for each person so named, please describe the nature of the services performed, how they were compensated (i.e., by the job, hourly, weekly or otherwise), the amount of compensation for each of the persons named for this job, whether there was a contract entered into for each person rendering services, and the number of other jobs that that person had rendered services for either of the defendants during the last two years. 9. Please identify each and every contract or other agreement, whether in writing or not, concerning the home repair work that is the subject of this action, which either defendant entered into with the plaintiff, with Dave Johnson, or with any other persons who rendered services of the contract that is the subject of this action. 10. Please identify by address of the property and the name and address of the owner, each and every structure in which repair work was performed to porticos, porches, retaining walls, basement walls or foundations during the last five years. 11. For each of the properties identified in Interrogatory #10, please state whether there were any disputes that arose concerning the terms or performance of the work, and if there were, please indicate what legal action was threatened or initiated against you or Hermann Construction Company as a result of such dispute. 12. Please state whether either of the defendants has made an investigation into the allegations upon which the complaint in this action is based, and if so, please furnish (a) the names and addresses of each person making such investigation, (b) the dates of such investigation, 124 (c) and identify all reports, summaries, witness statements, photographs, estimates, opinions, or other documents, whether in written or electronic form, that have been created as a result of such investigation, including any specifications or estimates of damages to the original house or addition at the VanFleet property. 13. Please describe in detail and in chronological order, exactly what you or your servants or agents or subcontractors did to rebuild or reinforce the old part of the foundation exposed during the excavation for the repairing of the portico, porch, retaining wall, basement/garage wall, or foundation that is the subject of this action, or to ascertain the sufficiency of the retaining wall or basement/garage wall to support the new portico and steps and strengthening the retaining wall. 14. Please identify by name and address, each and every person who was present during any part of the work that is the subject of Interrogatory #13. 15. Please state each and every fact upon which you rely in support of your contention in the Answer that the defendants are not subject to personal jurisdiction in this action. 16. Please state each and every fact upon which you rely in support of your contention in the Answer that the Proposal and Estimate for the work involved in this action constitutes the entire agreement of the parties and does not require repairing the retaining wall and/or strengthening the basement/garage wall. Interrogatories number 15 and 16 ask the defendant to state all of the facts upon which he bases various defenses raised and are called “contention interrogatories” because they ask the opponent to specify in detail the factual basis for raised in a general fashion in the pleadings. Interestingly, for years courts were not unified as to whether the contention interrogatories were allowed. In 1970, Rule 33(c) was added which states, in essence, that an interrogatory is not objectionable just because an answer to the interrogatory involves an opinion (or contention) that relates to fact or the application of the law to the fact. This legitimizes the contention interrogatories so as to dig into the factual basis for allegations and by doing so, it also reveals what is NOT contended. Since sometimes parties cannot respond effectively to contention interrogatories until they have performed their own discovery, therefore the Rule allows the court to order that such interrogatories not be answered until other discovery is completed. 17. Please state the name and address of each expert that you expect to call to testify at this trial. 18. For each expert identified in Interrogatory #17, please specify (a) his or her professional qualifications; (b) the subject upon on which the expert is expected to testify. (c) the substance of the opinion to which the expert is expected to testify. (d) the grounds upon which the expert basis his or her opinion. (Signed by Christopher VanFleet, by his attorney, Ralph Grissom, Grisson, Gotsum and Nonce, 112 Oak St., Anywhere, IN, USA (876)555-5555. 125 DEFENDANT’S ANSWERS The answer of the defendant, in this case would be referred to as “DEFENDANT’S ANSWERS TO PLAINTIFF’S FIRST SET OF INTERROGATORIES UNDER FED.R.CIV.P.33” Each of the interrogatories is typically answered by repeating each Interrogatory, and then Answer to each, as follows: 1. Please list each and every occasion on which you or anyone acting in your behalf or Hermann Construction Co discussed the terms of performance of the contract in issue in this action with the plaintiff. Answer: I met with the plaintiff on two different occasions in April of 2002 to discuss the repair to his house. Once the work started on May 22d, 2002, he continued to live at the house during most of the repair period, and we met to discuss progress of the job on June 1st. Then only infrequently did we discuss the progress of the job until July 7th when he called me and asked me to come to his house to discuss the alleged damage done to his house and retaining wall. 2. For every conversation listed in Interrogatory #1 above, please state in detail the substance of that conversation, stating in chronological order what was said by each of the parties. Answer: At the first meeting, we discussed in general terms what had to be done, my expertise in doing work like this, my experience on similar jobs, and established a time frame that I could do the work, taking into consideration the rainy season. At the second meeting, we reviewed what was needed to repair the foundation wall that is shared with the basement garage, strengthen the foundation if necessary, remove the front steps and portico and replace them with a similar type of steps and portico instead of attempting to move the steps back against the house and shoring up the portico. We discussed what it would take in labor and materials and subcontracting the electrical work if necessary, excavation, and replacing landscaping. We agreed to a price and I delivered a proposal and a contract and estimate for Mr. VanFleet to sign. During the meeting on June 1st, Mr. VanFleet was concerned about a crack that ran from the ground up the common wall shared by the basement and garage to nearly the roof line on the second floor and the movement of the retaining wall. I explained that the crack was there before we started the job, which he acknowledged, and if it appeared larger than when we started, that was because due to excavation it had settled a little but it would be taken care of before the job was finished. The retaining wall ran from the top of the driveway to the corner of the house and it appeared to have bowed out towards the driveway. It told him that we would check into that and see what had to be done. The retaining wall was built of creosoted railroad ties and we could not be responsible for its movement when he brought heavy equipment up next to the house. 3. Please identify by name and address, each and every person who was present during each and every conversation between yourself and the plaintiff, prior to, during, and after the execution of the contract at issue in this action. Answer: Christopher VanFleet and Rhonda VanFleet, his wife, 2027 Oak Grove Drive, Pensacola, FL 38962; and George Hermann, 205 Commercial Drive, Lakewood, FL 34489. 126 4. Please identify by name and address, each and every person who has any knowledge of the facts concerning the negotiations, execution or performance of that contract at issue in this action. Answer: Christopher and Rhonda Van Fleet, and George Hermann. To performance: Jasper Johnson, 2244 Pineview Lane, Pensacola, FL 38923; Joseph Semalty, 4590 Partridge Dr., Pensacola, FL 38908. 5. Please identify each and every document, letter, memorandum, or other record, whether in electronic or other form, of which you have knowledge, whether or not it is in your custody, possession or control, which contains any information concerning the negotiations, execution, or performance of the contract in issue in this action. Answer: Proposal and estimate attached to the plaintiff’s complaint letter agreement dated April 15, 2002 between Hermann Construction Company and Christopher VanFleet. 6. Please produce and identify each and every document, brochure, information sheet, advertisement, or other writing that describes the nature of the Hermann Construction Company or its experience or expertise in repairing houses with foundation damage. Answer: Advertisements periodically in the Pensacola Sun Times, Escambia and Okaloosa County News at various times. 7. For each of the documents identified in response to Interrogatory #5 and #6 above, please state whether such document is within your possession, custody or control and if not, state to the best of your knowledge who does have possession, custody or control of such document. If any of these documents in Interrogatory #5 or #6 or otherwise related to this event, have been destroyed or lost, please state for each document so lost or destroyed, the nature and content of the document, the name and address of the person creating the document, and the circumstances surrounding the loss or destruction of the document. Answer: Advertising copy of the ads specified in Interrogatory #6. No documents have been destroyed or lost. 8. Please list the name and address of all persons who performed any services related to the work that forms the basis of this action. Further, for each person so named, please describe the nature of the services performed, how they were compensated (i.e., by the job, hourly, weekly or otherwise), the amount of compensation for each of the persons named for this job, whether there was a contract entered into for each person rendering services, and the number of other jobs that that person had rendered services for either of the defendants during the last two years. Answer: The defendant objects to this interrogatory as burdensome and requesting information that is irrelevant to the issues of this suit. Without waiving this objection, the defendant responds that Dave Johnson conducted the evacuation and debris removal under contract with Hermann Construction Company dated May 15, 2002 for the total sum of $3,500. 9. Please identify each and every contract or other agreement, whether in writing or not, concerning the home repair work that is the subject of this action, which either defendant entered into with the plaintiff, with Dave Johnson, or with any other persons who rendered services of the contract that is the subject of this action. Answer: Proposal and contract attached to plaintiff’s complaint; contract with Dave Johnson dated May 15, 2002 signed by Dave Johnson and Hermann Construction Company. 127 10. Please identify by address of the property and the name and address of the owner, each and every structure in which repair work was performed to porticos, porches, retaining walls, basement walls or foundations during the last five years. Answer: The defendant objects to this interrogatory as burdensome and requesting information that is irrelevant to the issues of this suit and beyond the proper bounds of discovery. 11. For each of the properties identified in Interrogatory #10, please state whether there were any disputes that arose concerning the terms or performance of the work, and if there were, please indicate what legal action was threatened or initiated against you or Hermann Construction Company as a result of such dispute. Answer: The defendant objects to this interrogatory as burdensome and requesting information that is irrelevant to the issues of this suit and beyond the proper bounds of discovery. Without waiving this objection, the defendant states that neither he nor the Hermann Construction Company has been sued for any claim arising out of his construction business for the past six years. 12. Please state whether either of the defendants has made an investigation into the allegations upon which the complaint in this action is based. Answer: Yes. 13. If the answer to #12 is “yes,” please state for each such investigation: (a) the names an address of each person who has made such investigation. Answer: George Hermann (b) the dates of each such investigation. Answer: June 1, 2002 and June 14, 2002 (c) identify all reports, summaries, witness statements, photographs, estimates, opinions or other documents, whether written or electronic in form, which were created as a result of such investigation(s), including any specification of estimates of damages to the house or addition to the house owned by the plaintiff and the subject of this suit. Answer: None 14. Please describe in detail and in chronological order, exactly what you or your servants or agents or subcontractors did to rebuild or reinforce the old part of the foundation exposed during the excavation for the repairing of the portico, porch, retaining wall, basement/garage wall, or foundation that is the subject of this action, or to ascertain the sufficiency of the retaining wall or basement/garage wall to support the new portico and steps and strengthening the retaining wall. Answer: Bushes and yard lights leading up to the front door of the house were removed. The portico attached to the house was removed and the concrete steps were broken up and removed for disposal. The earth against the common basement/garage wall on the front of the house was removed. Hydraulic jacks were used to raise the front of the house. Concrete was poured next to the existing basement/garage wall and covered after setting. Concrete steps were poured leading from the sidewalk to the front door, including some sidewalk that had to be replaced. At plaintiff’s request, the retaining wall in question was shoved back into its proper position. 15. Please identify by name and address, each and every person who was present during any part of the work that is the subject of Interrogatory #13. 128 Answer: George Hermann, Dave Johnson, Raoul Hernandez. 16. Please state each and every fact upon which you rely in support of your contention in the Answer that the plaintiff waived performance of the contractual obligation to reinforce the foundation prior to construction of the front porch. Answer: In discussion with Christopher VanFleet on or about May 20, the concrete had been poured to support the porch and he asked if that was going to be sufficient to reinforce the basement/garage wall so that the cracks could be repaired. I told him that it was but I would patch the cracks in the front foundation where the basement/garage wall was so that it would not leak so badly in the future. He commented that the retaining wall appeared to be pushing out, but I made no comment as that was outside the contract provisions. 17. Please state each and every fact upon which you rely in support of your contention in the Answer that the Proposal and Estimate for the work involved in this action constitutes the entire agreement of the parties and does not require repairing the retaining wall and/or strengthening the basement/garage wall. Answer: Both parties signed the Proposal and the Contract, which includes all the terms of the contract between them. There was no other agreement requiring reconstruction of the foundation or the retaining wall, nor does the contract require such action. 18. Please state the name and address of each expert that you expect to call to testify at this trial. Answer: The defendant will make disclosure of its expert witnesses in accordance with Fed. R.Civ.P. 26(a)(2) at least 90 days prior to the expected date of the trial. 19. For each expert identified in Interrogatory #17, please specify (a) his or her professional qualifications; (b) the subject upon on which the expert is expected to testify. (c) the substance of the opinion to which the expert is expected to testify. (d) the grounds upon which the expert basis his or her opinion. Answer: The defendant will make disclosure of its expert witnesses in accordance with Fed.R.Civ.P. 26(a)(2) at least 90 days prior to the expected date of the trial. COMMENTS ON ANSWERS TO INTERROGATORIES Rule 33 does not require that the parties responding to interrogatories to restate each interrogatory before the response, but doing so makes it much easier for all parties to understand and to review. Some local rules require setting forth the interrogatory before each response. Florida Rule 1.340(e) states: “Interrogatories shall be arranged so that a blank space is provided after each separately numbered interrogatory. The space shall be reasonably sufficient to enable the answering party to insert the answer within the space. If sufficient space is not provided, the answering party may attach additional papers with answers and refer to them in the space provided in the interrogatories.” These interrogatories are so detailed that one might expect that they would reveal a lot of information, but that is not necessarily true. While the interrogatories used before are examples only, they are rather typical and the answers are also typical. Therefore, it seems apparent that 129 an interrogatory may not get exactly what is hoped. Some answers are too general to be very helpful—and are given in the hopes that they will not be very helpful but still fulfill the “letter of the law.” Some of the interrogatories are answered in a fashion that would certainly indicate laziness or that someone is skilled at stonewalling. Some answers would indicate that Hermann has no information on the matter. This, in itself, is helpful as Hermann is bound by his answers and he cannot later produce information or evidence at the trial which he denies in having at time of interrogatory. His response to interrogatory #2 is barely responsive as it does not provide much in the way of details as to who said what, in what order, etc. In such an instance, the plaintiff might move for further answers, but courts generally would not be impressed with such a motion. Interrogatories such as this one generally invite summary answers. To get more precise answers, then more precise questions should be asked, “At your meeting on June 1, did you tell the plaintiff that you would reinforce the entire basement/garage portion of the foundation by tearing it out and replacing it?” Or “State exactly what you told the plaintiff at the June 1 meeting that you would do to the foundation that provided the exterior wall for the basement/garage.” In actual practice, such a situation would usually lead to the plaintiff deposing Hermann so that the plaintiff could ask precise follow-up questions. The defendant has objected to Interrogatory # 8as burdensome and irrelevant and there are basis for this objection. These details seem barely applicable to the foundation wall or retaining wall problem, so at least there is room for argument here. Hermann has disclosed a new player, David Johnson, a sub-contractor which is relevant to the point if Johnson was an employee or subcontractor. In actual practice, VanFleet’s attorney will probably not push the point. Interrogatories #10 and #11 were included to try to determine if Hermann who claimed expertise in such jobs, had had problems with other jobs. This can be considered as a fishing expedition by many and by objecting, Hermann is putting the burden on—“passing the monkey,” so to speak)—to VanFleet to give up on this line and move to compel production, and by stating that there had been no suits, this pretty well passes the message that if they search they shall not find. Note that Hermann says he has not been sued, not that there had never been complaints. Often when a party states an objection to an interrogatory, they will provide some responsive information anyway. This way they appear to be cooperative and it may cause the other side to think twice about filing a motion to compel further answers. Interrogatories #12 and #13 asked for any reports of investigations by the defendant, but it did not consider the possibility that maybe he did investigate but did not write anything down which leads to further supplemental interrogatories as to any findings, or bring it up at Hermann’s deposition. Interrogatory #8 could be possibly considered as a “dual interrogatory” and would therefore be considered as 2 interrogatories, as possibly could #11. However, since there was less than the maximum number of interrogatories anyway, this would probably not be considered. If, for in- 130 stance, there were 25 (Federal) or 30 (Florida) interrogatories, there would be objections to the “dual interrogatories” if for no other reason, than to cause a few headaches for the opponent. Interrogatories #18 and #19 may not be acceptable, or at least they may be inappropriate. Rule 26(1)(2) requires that there be automatic disclosure of information concerning the qualifications, compensation and opinions of trial experts 90 days before trial. What Hermann has done is to take the position that this Rule governs disclosure of expert witnesses, therefore he does not have to provide information about them. Usually in interrogatories of this type, the defendant (Hermann) would sign the interrogatories, but his counsel would sign separately as to the objections, which indicates that he had reviewed the objections and he considers them legally justified. REQUESTS FOR PRODUCTION OF DOCUMENTS FRCP 34 & Florida 1.350 both indicate clearly that litigation should be based upon the open access to all relevant information. In order to fully develop the facts of a case, it will often be necessary to examine documents, records, reports and the like. Florida 1.350(a) states: “Any party may request any other party (1) to produce and permit the party making the request, or someone acting in the requesting party's behalf, to inspect and copy and designated documents, including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the party to whom the request is directed through detection devices into reasonably usable form, that constitute or contain (certain) matters…and that are in the possession, custody, or control of the party to whom the request is directed; (2) to inspect and copy, test, or sample any (such thing)…(within the control of anybody) to whom the request is directed…” Note that this rule pertains to parties to a suit. For those who are not parties to a suit, Florida 1.351 pertains: “A party may seek inspection and copying of any documents or things within the scope of rule 1.350(a) from a person who is not a party by issuance of a subpoena directing the production of the documents or things when the requesting party does not seek to depose the custodian or other person in possession of the documents or things.” In essence, both Federal and Florida Rules require that the opponent open their files and produce them for the other side to review, or at least to “review” the files and produce pertinent information so that they can be reviewed in preparation for a trial. Formal discovery rules allows for more than just documents to be produced, as it authorizes a party to : require the other party to produce documents for inspection and copying, require the other party to produce tangible objects for inspection, copying and testing (such as testing an auto or other machine part, when the suit maintains that such part is faulty), and enter land for the purposes of inspecting and testing (such as soil testing). Of these three options, the most common is compelling the production of documents. 131 Definition of “Documents” According to the Law Dictionary, “document” is “(1) something tangible on which words, symbols or marks are recorded. (2) The deeds, agreements, title papers, letters, receipts and other written instruments used to prove a fact. (3). Evidence. Under the best-evidence rule, a physical embodiment of information or ideas, such as a letter, contract, receipt, account book, blueprint or X-ray plate; esp., the original of such an embodiment.” An often quoted (as an example), R. “Haydock and D. Herr, Production of Results under Rule 34, 5 Am. J. Trial Advoc. 253, 261-262 (1981) is a (rather) lengthy and detailed definition of “Documents: “The word ‘documents’ means all writings of any kind, including the originals and nonidentical copies, whether different from the originals by reason of any notation made on such copies or otherwise, including without limitation, correspondence, memoranda, notes, diaries, statistics, letters, telegrams, minutes, contracts, reports, studies, checks, statements, receipts, returns, summaries, pamphlets, books, interoffice and intra-office communications, notations of any sort of conversations, telephone calls, meetings, or other communications, bulletins, printed matter, computer printouts, teletypes, telefax, invoices, worksheets, all drafts, alterations, modifications, changers and amendments of any of the foregoing, graphic or oral records or representations of any kind, (including, without limitations, photographs, charts, graphs, microfiche, microfilms, videotapes, recordings, motion pictures), and any electronic, mechanical or electric records or representations of any kind (including, without limitations, tapes, cassettes, discs, recordings, and computer memories).” Whew! There is, of course, a reason for such a lengthy legal, but dismal, passage—the opposing attorney will have a hard time avoiding discovery on a narrowly interpreted request. However, it is considered by many scholars that such lengthy dissertations are really not affective in making sure that there is full discovery. When words are defined, like this, they just increase the number of words that need further definition. After all, if words carried their usual meanings and definitions only, then further definitions and instructions would not be necessary. When lengthy definitions (such as this) are used, an understanding of the questions will then require a continual cross-reference to the definitions and to the instructions to make sure that the answer is responsive to the question. If an interrogatory is to be used in court, the interrogator must state the question as it is written, and then try to explain to the court or jury any meanings that can be apparent only from the definitions. Sometimes parties (responding to Rule 34 requests, for instance) may offer to reveal and to open any records as are kept in the ordinary course of business, for examination by the requesting party. Sometimes this is a bigger burden on the requesting party, who has to inspect many records in the search for pertinent information, than on the responding party. An example of this could be if “all records pertaining to homeowners insurance issued between January and July of 2002,” were requested. This would, of course, be ridiculous because the requestor would receive volumes of files from underwriting, issue, accounting, marketing and actuarial (good luck on that one!) departments. The insurer, as the responding party, should indicate how the records are kept and organized, what records will respond to what requests, and 132 any other information necessary to locate the requested items. FRCP 33(d) helps some, by stating: “Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.” Florida uses the words, “The request shall set forth the items to be inspected, either by individual item or category, and describe each item and category with reasonable par ticularity.” The matter of who is going to pay for what is usually worked out between the attorneys. The same for who is going to search for the records, otherwise it would have to be up to the judge who would not look with favor upon such requests as he will nearly always have better things to do with his time. As a general rule, the requesting party will usually pay the costs of the search, at least initially, but if the case goes to trial usually it is the losing party that will pay for these costs. The Rule 26(b)(1) is quite broad, so any party that objects will have the burden on a motion to compel production to convince the court that he has a good reason to refuse. “Things” are defined as tangible things, such as a car involved in an accident under dispute, a revolver that backfired, a faulty auto brake part, etc. (That is why it is referred to as “things”) The counsel can inspect places involved, such as the garage where the auto part was used, or the machine shop where a faulty part was manufactures, of the intersection where a deadly accident occurred. CONDUCTING TESTS They also have the right to conduct tests, such as testing an airbag by running an auto into a solid object. Florida describes these rights under 1.350(3) as: “to permit entry upon designed land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation on it…” FRCP Rule 34(a)(3) states: “ to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon…” (Ok—they are almost alike, happens more often than not...) 133 Request for Production of Documents FRCP 30(b)(5) states: “The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 shall apply to the request.” This request is simply a list of documents required at deposition with the proper legal wording. In a set of interrogatories, the adversary may be required to list the documents upon which his responses are based, and to voluntarily attach copies of the documents to the responses. If the witness is served with a Subpoena Duces Tecum Re Deposition—basically a “fill-inthe-blanks” type of form—there is a space for the listing of the documents that the witness must produce at the deposition. Without taking a deposition the party can compel anyone who possesses or controls caserelated documents to make those documents available for inspection and copying, by using a subpoena. The subpoena must identify the documents that are sought and state where and when the documents are to be made available. Normally, the subpoena must be served on the adversary and give him a chance to examine whatever documents are made available to the subpoena. Florida rules (1.351[d]) states: “the party receiving the copies shall furnish a legible copy of each item furnished to any other party who requests it upon the payment of the reasonable cost of preparing the copies.” BASICS OF PRODUCING DOCUMENTS There are certain basics which have usually been learned earlier, but just in case… To Whom May a Request be Sent? A Request to Produce Documents must be sent only to the adversary, not to non-party witnesses. Preparation of Request The Request for Production is prepared just as many other court documents are prepared— identifying information on the upper left-hand corner, the court where the case is pending, etc. The Request should advise as to where and when the documents are to be produced. Then the identifying information is provided. If a documents has been referred to in an Interrogatory, then the Request should show “All documents in defendant’s Interrogatory Number 6,” for example. Or, identifying in some other fashion, such as “All documents in defendant’s possession relating to the use of subcontractor Johnson and his earth-moving equipment.” 134 Documents typically are not referred to by title, name of sender or other specific items because the person requesting the documents may not know the specific names or contents as, in most cases, they have never seen the documents. If, however, the documents have been seen, then the exact title or contents of the document should be used. Conversely, a request for “all documents in your possession as related to this lawsuit” would be too vague, and the adversary would undoubtedly object and refuse to answer. The judge would compel the party issuing the Request to be more precise. Retaining of Original Documents The party requesting copies of documents will get that—copies. The originals will remain with the source. The cost of making copies will be furnished by those making the copies. Limits on Demand of Documents There are some limits on discovery pertaining to documents. Just because a party is involved in a lawsuit does not give them the right to ransack the opponent’s files and records. If that were the case, there would be no such thing as “trade secrets.” If someone wanted to know the secret of Kentucky Fried Chicken or Coca-Cola, all they would have to do would be to initiate a suit and then run rampant through their files and records. A person or organization that has endured a demand for documents always has the right to refuse to release the documents because the demand is too broad or/or burdensome, the information is legally privileged or to private to reveal, or simply that the documents have no relationship to the suit. The burden is then on the party requesting the documents to try to work it out (“meeting and conferring”) with the opponent by discussing the issues in good faith. If that doesn’t work, then the person requesting the documents would have to file a “Motion to Compel Production of Documents” in court and a judge would have to make the decision as to whether the documents should be made available for inspection. (FRCP 34[b] , Florida 1.351[c]) Time to Respond to Request for Production The time limit by law is 30 days, however sometimes parties will agree among themselves as to the time limit, either shortening or lengthening the time. How to Respond for Request if Documents are not Available Provided that the request is reasonable and the party does not have the requested documents in their possession or control, they simply state, for example, that “there are no documents in my possession or control requested by defendant’s Request No. 8.” If such documents later come into the possession or control of the party from whom documents had been requested, then the proper method is to send an amended response to the other party. However, if the request is improper, then the reason for the objection must be so stated in the response. As an example: “Plaintiff Jones objects to defendant Smith’s Request Number 8 on the grounds that it is oppressive, unduly burdensome, vague and seeks information not calculated to lead to the discov135 ery of admissible evidence, in that it requests ‘all documents, records, memoranda, letters and notes of every kind and description written to plaintiff by each person who has been a tenant at 110 Oak Street for the last ten years, or written by plaintiff to each such person.’” PUTTING REFUSAL TO PRODUCE DOCUMENTS ON THE RECORD If the deponent fails to produce a requested document, then one should definitely put the deponent’s refusal on the record so that the refusal can be challenged later in court. As an example, Ward was a salesman for the Acme Termite Protection Co. (Acme) and he sold a termite-protection plan to the plaintiff for the protection of his home. During the sales presentation he allegedly misrepresented the type of equipment that he was going to use and the warranty that the company offered in case of future termite damage. Later the house was severely damaged by termites and Acme refused to honor the warranty. The salesman was asked to bring with him to the deposition, records indicating the number of termite protection contracts that he was obliged to sell. At the deposition Attorney Kerr represented Ward and was the deposing attorney. Kerr: In the three months prior to the sale of the Acme Termite protection plan to my client, did the company give you any document indicating how many plans that Acme expected you to sell? Ward: Yes sir, it did. Kerr: Have you brought these documents with you as requested in the Notice of Deposition, Exhibit 1? Ward: I have not. Kerr: How many documents of this type had you received? Ward: Three to the best of my memory. Kerr: Can you produce any of the three? Ward: No. Kerr: For the record, why have you failed to produce those records? Ward: I feel that it is private and no one else’s business and they have nothing to do with this case. Kerr: I am not attempting to invade your privacy, but we are entitled to those documents and we are not required to explain as to why we are entitled to them, In an effort to resolve the problem as quickly as possible, let me say that I am convinced that they would show that you were under pressure at that time to sell termite protection programs when my client purchased his program from your company. Will you produce these records voluntarily? Ward: No, I will not. Kerr: Very well, we will continue with the deposition, however I must state that I reserve the right to seek a court order requiring you to produce those papers and documents. If the court grants my request for the order, I will ask the judge to order you to pay my court costs and my attorney’s fees. Is that understood? Ward: Yes. Kerr: And do you stick by your refusal? 136 Ward: Yes This would sufficiently document the deponent’s refusal to provide the records that was sought. SUBPOENAS This is basic material, but just for review, wouldn’t hurt. Approval of Judge? A judge’s approval is not needed to serve a subpoena, and are usually issued as “blank” and pre-stamped by the clerk of the court in which the case is pending. The procedure is to pick up a subpoena in the clerk’s office in the courthouse where the case is pending. The information is “filled in” such as the case number and the documents that are desired to be produced, and then it is served on the person or organization from which documents are demanded. Method of Serving Subpoena A subpoena requesting documents are usually personally served on a witness by an adult who has no relationship to the case, or, in some cases, by marshals or by private process servers. Non-party Witnesses Responding to Subpoenas for Production of Documents Non-party witnesses respond to Requests for Production basically the same way that parties respond to the Requests. A witness can also agree to turn over the documents, object to the subpoena as oppressive, unduly burdensome, seeks privileged information, and so on. On the other hand, a witness who refuses to respond to a subpoena is in contempt of court. The witness is in trouble then, as a judge can order the witness to comply with a subpoena, and the judge can sanction the un-cooperative witness with a fine and in some cases, jail time. REQUESTS FOR ADMISSIONS The procedures for Requests for Admissions are in FRCP 36 and Florida Rules 1.370. They are not as much a method of discovering new information, than a method for making it easier for parties to prove facts at trial. If a party admits that the facts that are listed in the Requests for Admission are accurate, then those facts are considered as conclusively established, and one does not need to prove them at trial, and the procedure is to read the admitted facts into the record at the trial. In a way, this redefines “discovery” as that aspect of Requests for Admission is nothing more or less the discovery of which aspects of the case that the opposing party intends to dispute at the trial. The Requests for Admission are broad. Some of the Requests could include: Is a Document Genuine? 137 A particular document that is important in a case could be admitted as genuine by the Requests for Admissions. This would be important for contract cases or rental/lease/purchase agreements, and a multitude of others. An example of the wording might be: “Plaintiff Jones requests the defendant Smith admit within 30 days of the service of this request, for the purpose of this action only, that the following document is genuine: The purchase agreement attached hereto as Exhibit A, is a true and accurate copy of the purchase agreement signed by plaintiff and defendant on May 1, 2001.” If defendant Smith admits that the copy of the agreement is genuine, then this lease could be offered into evidence at trial, without further proof of its authenticity. Evidence to be Offered at Trial is Genuine and Accurate Any evidence that a party intends to offer at a trial is accurate and there should be no dispute as to its accuracy, is covered by Requests for Admission. For example: “Defendant Jones requests that the plaintiff Smith admit within 30 days of service of this request, for the purpose of this action only, that the following statement is true: ‘Following the accident that occurred at Lowe’s Stores parking lot at 3:30pm, on Aug. 21, 2002, the defendant said to the plaintiff, “I did hear the beep-beep noise coming from your van, but I thought that was a signal for a car that had already struck another car.”’ (This really happened!) If the plaintiff admits that this is a true fact, then that statement would be read to the judge at the trial. Status of a Legal Relationship A relevant legal relationship could be under question and for instance, one of the parties to the case has a relationship with another party as an employee. If it was relevant to the case to make sure that the defendant was, indeed, an employee and acted in that behalf (for instance) then the request may go along the following lines: “Plaintiff requests that defendant Smith agree within 30 days of the service of this request, and for purposes of this action only, that on Aug. 8, 2001, Smith was an employee of Acme Trucking.” Why Should There be Cooperation? The question that arises the first time someone learns of the Request for Admissions, is why in the world a person would want to prove an adversary’s case by admitting that facts mentioned in a Request for Admission, are true. The answer is that the Request must be answered under oath, therefore the person answering must tell the truth—otherwise they would have perjured themselves. In addition, there can be a rather stiff financial penalty on those parties who refuse to answer the Request for Admissions if the reason thereof is unreasonable. Besides, if the case goes to trial and the adversary proves that a fact listed in a Request for Admission has been unreasonably denied by the other party, is, in fact, true, then that party could be forced to pay whatever the adversary spent proving that fact at a trial. Interestingly, this is true even if the party that denied the fact wins the case. 138 For instance, in the situation above, if the defendant Smith refused the Request as he maintained that he was an independent contractor and not an employee of Acme Trucking; and at the trial it was determined that Smith was on Acme’s payroll and participated in their group health plan, such plan being limited only to employees; then even if Smith wins the case, he would have to pay the plaintiff’s costs that were incurred to prove that Smith was an employee. Ignoring the Request What if the person receiving the Request decided just to ignore the whole thing and hoped that it goes away, or at least the opponent forgets about it. Any Requests that are not specifically denied in writing, are deemed to have been admitted. Therefore, failing to answer the Request has the same effect as if the receiving party had admitted to everything in the Request. If a person who receives a Request for Admission, takes issue with any fact in the Request, they must still respond on time, in writing, or just forget about contesting the fact as they have given up their right to contest it. The purpose of the Request for Admission is obvious—it saves time and money for situations that are admittedly true on the surface as it would be a waste of time and money to contest such situation. To illustrate how this could work if there were no such rule, a similar situation arose in the early 1970’s. It was not a lawsuit or a court trial, but proves the point. There were two large insurance companies that were in the same line of business and were going to merge. They could not agree as to the worth of their companies, so they decided to submit it to arbitration. Each company was represented by an actuary who was also an attorney. Immediately before the meeting the two actuaries/lawyers, who knew each other quite well, met and one (Jack) told the other (Tommy) that they should agree on certain items in respect to the valuation of the business in the company as that would save time and money and create a better atmosphere for their clients. Tommy readily agreed, and they drew up a list of points that they both would concede, and would therefore, not bring up in the presentation. Tommy went first to the arbitrators and made his presentation, holding fast to the points that he and Jack had agreed on as to valuation of business, etc. After he was finished, Jack went before the arbitrators and the first thing he did was—guess what?—tore apart all of the assumptions that they had agreed upon. The result was that the Tommy, who went first, ended up looking foolish and incompetent, and the price that the arbitrators settled upon reflected exactly what Jack represented the company as being worth. This made headlines in the insurance industry’s publications and there were a bunch of happy shareholders in the company represented by Jack, but not those represented by Tommy. When Jack was asked about how he could “betray” his competitor, his answer was “I was hired to do the best job for my client that I could and get the most money for him. I did. And (exact quote) ‘if you get into a (urinating) contest with a skunk, you don’t spray perfume.’” The Request for Admissions pretty well eliminates this (sand-bagging) in legal battles at the present time. 139 FLORIDA RULES 1.371(a) This is detailed in the Florida Rule 1.371, but presented in a “point” format to further describe the Request for Admission: “A party may serve upon any other party a written request for the admission of the truth of any matters within the scope of (appropriate rule) (as) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. Without leave of court the request may be served upon the plaintiff after commencement of the action and upon any other party with or after service of the process and initial pleading upon that party. Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request or such shorter or longer time as the court may allow but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the process and initial pleading upon the defendant. If objection is made, the reasons shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested; the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless that party states that that party has made reasonable inquiry and that the information known or readily obtainable by that party is insufficient to enable that party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not object to the request on that ground alone; the party may deny the matter or set forth reasons why the party cannot admit or deny it… The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. Instead of these orders the court may determine that final disposition of the request be made at a pretrial conference or at a designated time before trial.” 140 STUDY QUESTIONS 1. The great advantage of interrogatories is that they are A. an inexpensive mechanism to get information from the opposing side. B. very expensive, which indicates to the other party that there are unlimited funds in opposition. C. a source of information without the need for an attorney as anyone can do them. D. relatively new in discovery and many attorneys are not familiar with them yet. 2. The answers to interrogatories are drafted as carefully as possible so A. as to keep down the costs. B. to impress upon their clients how important legal counsel is. C. as to reveal as little as possible, avoid embarrassing admissions, and to massage the facts so they will be in a more favorable light to the client. D. that the opponents will have to spend more for legal fees in interpreting the “legalese” normally found in answers to interrogatories. 3. Interrogatories are a superior method of eliciting organizational of corporation knowledge, because A. the opposing party is required to gather information spread among several parties if necessary. B. corporations/organizations must immediately submit all records, financial and otherwise, to the adversary, whether requested or not. C. the party submitting the interrogatories can ask very broad and general questions, and still require definitive and detailed answers. D. in those cases, the corporation or organization is required by law to pay for all legal costs of not only submitting, but also answering all interrogatories. 4. One of the principal disadvantages of an interrogatory is that A. an interrogatory is nearly always unaffordable to the average person. B. the information that can be required to produce is very limited. C. an interrogatory must be sent only to expert or friendly witnesses. D. an interrogatory must be sent only to the adversary. 5. When lawyers are involved in interrogatories, they have a tendency to A. frame the questions so they require the narrowest of answers. B. expand the number of questions and the number of words used, so some will have as many as 100 questions. C. ask in very general terms as they want broad answers to work with later. D. only ask for privileged or confidential information, hoping that one or more will “slip by.” 141 6. In most jurisdictions, a complaint does not need to provide much factual information to the defendant, therefore A. the defendant will always file a counterclaim. B. the defendant may want to use an interrogatory to gain additional information & facts. C. the only way to obtain sufficient material to mount an adequate defense is to use only depositions. D. in the early stages of a suit, legal counsel is not necessary. 7. Answers filed to interrogatories are A. always complete and precise. B. rarely directly related to the questions asked. C. a way for legal fees to be increased as no one but attorneys can answer an interrogatory. D. sometimes too general to be helpful, sometimes they are answered in a fashion that would indicate that the respondent was just lazy, sometimes they useless because the receiver of the interrogatory has no information on the question asked (which could be helpful at trial if it is denied in the interrogatory). 8. Any party may request any other party to produce documents (FRCP 34 & Florida 1.350) but A. this is only allowed if the amount of the suit exceeds $100,000 in value. B. the documents must be the original documents. C. the party may not make copies of the documents but must return the originals to the party providing the documents. D. this rule only pertains to parties in a suit. 9. A request to produce documents must A. be notarized and signed by a judge. B. be sent to all interested parties, including witnesses. C. be sent only to the adversary, not to non-party witnesses. D. be filed only after a deposition has been taken and prior to trial. 10. If a deponent fails to produce a requested document A. there really is nothing that the other party can do. B. that is a criminal offense, punishable by jail time. C. then the deponent’s refusal should be put on the record so that the refusal can be challenged in court. D. then the judge will usually sanction the deponent and declare a mistrial. ANSWERS TO STUDY QUESTIONS 1A 2C 3A 4D 5A 6B 7D 8D 9C 10C 142 CHAPTER XI - DEPOSING WITNESSES DEPOSING HOSTILE WITNESSES There are volumes written on how to depose hostile witness, but again, it doesn’t hurt to remember the basics. A “hostile witness” is simply a witness who is biased against the examining party or who is unwilling to testify. A hostile witness may be asked leading questions on direct examinations. (Fed. R. Evid, 611[c]) Since this text at this point is discussing depositions, it is reasonable to assume that if you are taking a deposition, then the deponent will be hostile—not always, but most of the time. Before a deposition is taken, one must decide whether it is worth the “hassle” because the one requiring a deposition from a deponent must find suitable dates and locations, arrange for a court reporter, serve the notice papers on the deponent, and then notify the deponent in writing. Sometimes it just isn’t worth the time and money to take depositions. The party noticing the deposition has to pay a court reporter to attend the deposition and transcribe the testimony. Attorneys who are used to taking depositions have a feel as to how expensive it can be, but in very general terms the deposition transcript can cost around $6 per page and a full day of testimony can create at least 100 pages. Then the non-party deponent, if any, has to be paid, although that is nominal, such as around $50. Expert witnesses are much more, as discussed earlier. One more thing, taking a good, effective deposition, requires a particular skill which is difficult, even for many experienced attorneys. There will have to be a lot of time spent in preparation (discussed earlier) and in the actual taking of the deposition. It is safe to say that this can prove to be a challenging task for those who are not very familiar with deposition-taking. DEPOSING AN ADVERSARY’S EXPERT WITNESS—DANGER! Even an experienced attorney must think very carefully before they depose an adversary’s expert witness, and deposing such a witness increases both the difficulty and the expense of the deposition. This has been discussed earlier, but to reiterate: to effectively depose an expert witness, the deposing attorney must have in-depth knowledge of the field of expertise in which the expert witness is testifying. Also, the expert witness will expect to be paid a reasonable hourly fee for the time spent at the deposition—which can run hundreds of dollars an hour. NOT USING AN ORAL DEPOSITION Depositions are expensive, to repeat again for emphasis, therefore it is not unusual for lawyers to settle small cases, or at least take them to trial, without having taken any depositions at all. Instead, it may be less expensive and better in the long-run to use other methods of gathering information. 143 Many times informal interviews with witnesses are more successful because the witnesses may rather talk instead of being deposed, particularly if they are informed that they can be subpoenaed to appear at a deposition. Subpoena is a “dirty word” to many lay persons, but the threat of it alone gives the appearance of a serious and important interview. Interrogatories have been discussed previously and they can be particularly useful if the interrogator is after specific information. Remember, however, they can only be sent to the adversary, and not to non-party witnesses. However, regardless of the problems and expense of depositions, the amount of money in question or the individual’s personal desire to defend their rights or “right a wrong” may just make it worthwhile to take a deposition or two. An example of the effect of the deposition, other than the evidence produced, could be illustrated where an individual feels that they are being forced to move from their apartment and the landlord has filed suit to force the individual out of the apartment wrongfully. The tenant strongly believes that this action was caused by the fact that the landlord can get a lot more money from renting it to someone else. By deposing the landlord, if nothing else, it sends a strong signal that the tenant is not going to take that lying down and that he is taking the eviction very seriously. WHO TO DEPOSE Unless the deposing party has unlimited time and resources, it will probably make good sense to limit the depositions to one or two people. The important thing is to make sure that the right people are deposed, i.e., those who are likely to have important information that cannot be obtained by any other means. Usually, it is relatively easy to identify a key witness. For instance, a personal injury case growing out of a two-car collision: the key witness is, obviously, the other driver. If it is difficult to determine exactly who to depose, many jurisdictions require parties to make initial voluntary disclosures to each other. Under FRCP 26(a)(1)(A), the two parties must both voluntarily disclose to each other, the name and address and telephone number of each individual likely to have discoverable information (if addresses and phone numbers are known). The voluntary disclosure must also identify “the subjects of the information” known to the individual. Since the initial disclosure identifies the witnesses known to each party and it briefly summarizes their likely testimony, determining who to depose just got a lot better. Florida rules do not have the voluntary disclosure provision, but it is explained in Rule 1.280(b)(1): “Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” 144 If the other party is a business or similar organization with numerous employees, it can be difficult at times to identify which is the key witness who should be deposed. If there are several possibilities, depositions may end up being “I don’t know” responses. There are some things that can be done to alleviate this problem. Do not take a deposition until sufficient information has been obtained so that a key witness can be identified. Many times one should await an interrogatory in which the other party was asked to identify the names and positions of people involved in the situation under question. Another method is to use the “Designated Deponent” procedure. It is not necessary to name a specific deponent on the Notice of Deposition or the Subpoena re Deposition, but instead the topics that will be discussed during the deposition will be listed. (FRCP 30[b][6]) That way the organization or business is responsible for designating (and send to the deposition) one or more representatives who are the most knowledgeable about he subject in contention. Aha-one might think—the business would just send old Denny Dummer who knows less about the subject than anyone else. Fortunately, that would not work as a judge has the power to sanction any organization that intentionally sends a representative who knows little or nothing about the case-related subjects. ORGANIZATION PRIOR TO DEPOSITION Preparation has been discussed earlier, however in order to depose effectively, it is important to organize the objectives and take steps to make sure things go as well as they can during the deposition. One of the first things that should be discovered, if at all possible, is the case-related information that the deponent knows, even if it can hurt. It is important to know exactly how a deponent can hurt you. Stick to the chronological order of events as much as possible. It is preferable to try to elicit the deponent’s testimony in a manner that can be chronologically ordered. By doing so, it helps to understand the key points of the witnesses’ and to evaluate their strength and weaknesses. By keeping everything in chronological order, it is much easier to refer to information later and the deposing party will be less likely to miss an important point. Prior to the deposition, it helps to have a list of information that you would like to have and that the deponent might realistically be able to provide. By the end of the deposition all of the information listed should have been discussed. And, of course, the search should be for information that reflects upon the creditability of the deponent and/or their testimony. Does the deponent have a financial interest in the adversary’s claims? Has he ever said anything that conflicts with the deposition testimony? During the deposition, what kind of witness did he make? If the witness is continually looking at his attorney for guidance in answering questions, then that is a good indication that the witness may not be that strong and enforces the possibility of a settlement. 145 Keeping in mind that a deposition is limited to one day of 7 hours, a topical outline should be prepared. Those with experience in depositions rarely list the questions that they intend to ask as it just is normally not effective. One of the advantages of depositions over interrogatories is the ability to adjust the questions based upon response of previous questions. If one tries to follow a list of questions, they become locked into following the pattern and they can miss important points. It is much better to simply have a topical outline of key topics that can be a reference point very easily during the questioning. For instance in a negligence suit, the outline of topics may include: Background of injured person, by education, job history, current employment and status, physical condition, and major health history. Business—type of business, how long in business, products manufactured/stored/sold, locations, condition of workplace/building, history of work-or nonwork related accidents, type of equipment in business and condition of equipment, type and condition of floors. OSHA requirements posted, safety record, safety management, Workers Compensation carrier and claims history. Documents brought to deposition, medical records, time sheets, income statements, picture of floor where injury occurred. Events prior to negligent act, chronological order, alcohol or drugs ingested? Clothing and protective clothing/devices worn, type and make of shoes worn and type of sole. Location of container of oil that was on the floor, type of oil, manufacturer, cost and cost comparison to other types of oil, use of oil in process, who uses the oil. Activity at time of incident, who handled the oil, experience of handler, time & date of spillage, history of spillages, sample of oil. Events immediately after incident, witnesses present, location of witnesses, alarm sounded by whom and when and to whom, time before medical assistance arrived, measurement of depth of oil on the floor, comments by witnesses and medical personnel. STARTING THE DEPOSITION As indicated earlier, the deposition should start with a series of “admonitions” and then proceed to background questions. Sometimes it may be preferable to limit, or even at times, skip, these preliminary questions and statements, and go directly into the case-related questioning. By dong this, one saves time and money and reduces the chance for a defending lawyer to repeatedly objecting to what should be routine questioning. FORMS OF QUESTIONS There are two general types of questions that can be used for depositions, “deponentcentered” and “questioner-centered” questions. Deponent-centered Questions These types of questions are “open” and rely on the independent memory of the deponent and they encourage the deponent to describe events in their own words. In response to this type 146 of questions, the deponent may mention important information that the deposer may never have thought above otherwise. Examples: What was discussed in the meeting on July 1 between the supervisor and yourself? After you stepped into the puddle of oil on the floor, what happened? How did the broken wrist affect your ability to do your job? After the car turned in front of you, what happened? Questioner-centered Questions These questions are much narrower, and are used to solicit certain specific pieces of information. They are called “questioner-centered” because most of the factual information is in the question rather than in the answer of the deponent. These questions are leading questions because either by the wording or the presentation of the wording, it suggests the answer that the deponent should give. These questions are designed to stimulate a deponent to recall specific instances or information that would otherwise have been omitted in response to open inquiries. Examples: How many steps did you take after you stepped into the oil puddle? In the meeting on July 1, it was agreed that the accusation of sexual harassment would be ignored, is that not true? Bob only went to physical therapy twice, right? The car that turned in front of you was turning on a green light, right? It is perfectly proper to use leading questions when a hostile witness is questioned, such as the adversary or someone employed by the adversary. They are a good way to have a hostile witness provide information on the list of helpful evidence, i.e. “You never heard me question the safety regulations, did you?” Conversely, one should avoid using leading questions when deposing a friendly witness as leading questions would be improper and would be objected to by the defending attorney. USING THE FORMS OF QUESTIONS One of the principal goals when a hostile witness is deposed, is to find out what harmful information that the witness possesses. The way to do that is to bring out all case-related information that is known to the deponent. To show how both forms of questions can be used in a deposition, assume that the results of a meeting is very important to the case and the deposing attorney wants to know as much as possible about what happened at that meeting. To start, usually an open, deponent-centered question which is designed to see what the deponent recalls and is willing to discuss, is used: 147 Q: What was discussed at the meeting on July 1st ? A: We talked about how to handle sexual harassment complaints, and we also talked about how many people of opposite sex occupy the same office space. Q: Anything else that you can recall being discussed at this meeting? A: Well, we did talk a little about the number of harassment complaints coming from primarily only two sections of one department. Q: OK, you discussed how to handle sexual harassment complaints, the number of employees of both sexes using the same office space, and the number of complaints coming from a couple of parts of one department. Can you recall anything else? A: No, that is all that I can recall. These preliminary open-ended questions do not really stimulate the deponent’s recall, but what they do is to leave his memory associations intact so that he may mention something that otherwise you may not have thought about. But the independent recall will eventually come to an end so then it is necessary to start using more questioner-centered questions. Following the same fictitious scenario, questions might be along the lines of: Q: At this meeting, did you discuss legal action against sexual harassment complaints? Q: At this meeting, was there any discussion regarding more sexual harassment complaints from one department than in the rest of the company? Q: What was decided at this meeting in respect to men and women sharing the same small office space? Q: What was the attitude of those attending this meeting in respect to sexual harassment situations? Questions such as this may help a deponent to recall certain specificities by suggesting them to the deponent. Usually, it is recommended that one move between the deponent-centered and the questioner-centered questions during the deposition. For instance, in respect to the question regarding legal action against sexual harassment complaints, Q: Please inform us of the details of the legal action for sexual harassment complaints that was discussed during this meeting. Q: What was the discussion in respect to the complaints from one particular department? Once the memory of the deponent seems to have run out of steam, then one can return to narrower questioner-centered questions. Q: Did you discuss at any time during this meeting, the fact that the department with the most sexual harassment complaints has the highest percentage of female employees? Q: Did you discuss at any time during this meeting about disciplinary measures to be taken as soon as a person makes a sexual harassment complaint? Q: Did you discuss at any time during this meeting that the department in which the defendant is employed has never had a sexual harassment complaint during the time that he was the supervisor until this one? 148 Q: Did you talk at all about the personal relation between the defendant and the plaintiff with particular references to the fact that they were engaged to be married at one time? This line of questioning can go on until it is apparent that all of the information possible has been gotten from the deponent. THINGS THAT A DEPONENT CAN BE ASKED TO DO The deponent does not have to just sit in a chair and answer questions. There are other things that he can be asked to do: Identify documents Draw a sketch or diagram, such as an accident site at a particular time Illustrate physically a particular action that took place—“John got our attention at one point in the meeting.” “How did he get your attention?” “By raising his hand.” “Did he stick it up in the air, or wave it around?” “Waved it around.” “Show me how he waved it around.” In the same vein, illustrate how a person threatened another person by raising his hand—did he clench his fist, did he reach for the jacket of the person, did he pull his hand to the side as if to slap the other person? etc. When a deponent so illustrates, it must be described in detail for the record. “For the record, the deponent raised his right hand, with the hand open and the right forearm is parallel to the ground, and brought it across his body as if he was going to slap another person in the face.” STARTING POINT Identifying the chronology’s starting point is often difficult regardless of the experience of the lawyer. If one starts too late, they may miss important information. Start too early, and they are wasting their time and money and they end up with useless information. Where to start depends entirely upon the individual case. For instance, if the case is a “lemon law” case where a car is sold to an individual and the car is a piece-of-you-know-what, then the deposition may begin with a statement such as “I would like to start by asking you for the date that you acquired the car that you sold to the plaintiff.” Dog-bite: “When was the first time that your dog bit or threatened to bite, another person?” Misrepresentation as to privacy of property: “When was the first time that you received a complaint from the plaintiff about the number of vehicles cutting across his property at all hours?” Sexual harassment: “When was the first time that you received a complaint that the defendant was sexually harassing a female employee?” 149 GATHERING HELPFUL EVIDENCE If a person is lucky and has been able to pick up a piece of information helpful to the case during the deposition, that was unexpected, then in order to explore this information in more detail, questioner-centered questions are usually used. Assume that the plaintiff, Green, is suing his former employer for wrongful termination as he was fired because he was accused of sexual harassment which was never pursued and no legal action against Green had been taken. The deposing attorney had discovered that one department of the company had had several sexual harassment complaints, and this was discovered during deposition using a deponent-centered question. If this information would show that other persons had not been terminated when accused of harassment that would be an important piece of evidence. Questioning could go as follows: Q: During your meeting on July 1, you testified that you discussed the fact that one department had more sexual harassment complaints than any other department, is that correct? A: Yes, two sections of one department. Q: How many complaints did that department have over the past 3 years, would you say? A: I do not know for sure, but I know that over the past year they have had 3 such complaints. Q: How many of these accusations resulted in the termination of an employee? A: I believe only one and he was a supervisor. Q: What disciplinary action was taken against the other two accused? A: In one case, there was a notation in their personnel files, in the other there was nothing done because the lady withdrew her complaint. Q: Were there any other sexual harassment complaints registered that you are aware of? A: No – well, yes, there was the situation where a vice president was accused of harassment by his secretary that maintained they had had sex because she was afraid that she would lose her job if she did not agree. Q: What happened to the Vice President and his career? A: Nothing really, the company just transferred his secretary to another department. Q: Now I would like to talk to you about the actions taken against the plaintiff when he was accused of sexual harassment. What was the position of the employee accusing him of harassment? A: She was an accountant and he was her supervisor. Q: Please refer to the personnel records of his accuser. What was the status of her employment at the time of accusation? A: Evidently she had been warned about the quality of her work and was put on a probation period of 3 months. Q: When did this action take place? A: June 1st. Q: How long before the sexual harassment accusation was that? A: About 3 and half months. 150 Anyone can see where this fictitious deposition is going. Note the times that the deponentcentered question was used (Were there other sexual harassment claims…) and the times that the narrower questioner-centered questions were asked (When did this action take place? How long before the sexual harassment accusation was that? Etc.) WHAT IF THEY LIE? Surprise, surprise, sometimes a witness may lie! Especially a hostile deponent may refuse to testify to what (you know) is the truth. The deponent in the illustration above could have said that the woman making the sexual harassment charge was secure in her job although the deposing attorney may have information about her probation period at work, unknown to the deponent at this time that shows just the opposite. When quite sure that the deponent is lying about something that is significant to the case, an attorney will often build up the lie—they have the deponent repeat the lie. Such as: “You knew that the person claiming sexual harassment was secure in her job and had a good work record, right?” Or “You feel that the harassment claimant would not feel that she had to get chummy with the plaintiff in order to keep her job, correct?” That way it would be difficult for the deponent at the trial to maintain that they misunderstood the question or forgot for a moment. For instance, if the plaintiff in this case did not actually have the personnel records but had been told that she was on probation, then the records could be obtained for the trial. He could also depose the Director of Human Resources as they would be monitoring her activity at work. One item that can cast a reflection on the honesty and integrity of a deponent, is the way that they conduct themselves under oath. As mentioned earlier, the demeanor and manner of answering questions of the witness or deponent, contribute to the creditability of the deponent. Those who are poised and confident when under the pressure of answering questions under oath give the appearance of being credible. Conversely, a person who seems to be nervous or who gives inappropriate answers can lose credibility. Therefore, the deponent may be given deponentcentered questions to describe events in their own words and if they do not come across as poised and honest, this may cause the person to have lesser impact at trial. Sometimes it is better not to call these persons to the stand in the court trial for that reason. But often, unfortunately, one must call them as they are aware of the most important evidence. When a deponent is asked a deponent-centered question, they may give the impression that they have “memorized” the answer, or are producing a “canned” response. A judge or a jury may not find that kind of testimony very convincing. Of course this works both ways and if the other party has a key witness who gives such types of answers, this can be emphasized during pre-trial settlement negotiations—“Hey, Joe, your witness that claims my client is a womanizer appears very nervous when he makes these accusations, just as if he were coached too well. However, I am hoping that he is the best witness as to my client’s character that you have.” Q: What happened when the red Ford turned right on the red light? A: It was a bad move, I mean, like, maybe he had the right to turn on the light, okay, but it caused a mess, if you know what I mean. There were pieces of glass on the road and one poor lady up the street ran her car into the curb, like, that cost her old man a bunch on new tires, you know. The red Explorer, I think it was an Explorer, but it could have been 151 the larger SUV, you know, the ones that eat up the gas? Anyway, it was facing straight into the wrong lane after it turned… (and so on). These types of rambling dissertations at a deposition causes gray hairs with deposing attorneys, as if they are interrupted they have to start back at the beginning again. Often, these are coached answers that were embellished. Stop them and see if they can repeat what they saw without the comments…good luck. On the flip side, sometimes a witness or deponent will give short abrupt and conclusory answers to an open, dependent-centered question. For instance: Q: What happened when the red Ford turned right on the red light? A. There was an accident. Q: Can you describe the accident in more detail? A: Sure. The red car hit the white station wagon. Q: Where did the red car hit the white station wagon? A: On the right side. Q: Did it damage the white station wagon? A: Yes… These answers may be given for several reasons, one of which is that the witness wants to be detailed as possible and to be believed. However, when these answers are given in response to open questions are so brief and conclusory, a judge or jury may doubt that the witness really recalls what happened. Sometimes in response to the narrow, questioner-centered questions, a deponent may indicate that he really has little knowledge of concrete details. Q: What time did you arrive at the scene of the accident? A: It was somewhere around 3 to 4 o’clock, I’m not really sure exactly. Q: How many cars were involved in the accident? A: Let’s see, there was a red Ford, a white foreign car I think, and there was a blue pickup that seemed to have suffered some damage also. Oh, yeah, there was the little red Honda that was driven by this young blonde lady. Q: Who was driving the red Ford or the other cars? A: I think it was an older man who was wearing a blue suit and standing near the car. It could also have been the lady who had blood on her head and clothes, I just am not sure. I do know that the blonde was driving the Honda. Q: Can you tell us how the accident occurred? A: It looked like the Ford turned too sharp on the corner and hit either the white car or the pickup, I am not sure. Needless to say, a judge or jury would give little weight to this witness’s testimony. Sometimes there will be a drastic change in the demeanor of a deponent from the deposition to the trial. Generally this is because his attorney has “wood-shedded” the individual before the 152 trail. Sometimes it is absolutely amazing how much the witness has “matured” after the deposition. The problem is that this can be overcome, at least partially, at trial by reading into the record the previous deposition testimony. Of course, if he is well “trained” the witness will try to convince everybody that he was just awfully nervous at the deposition but he has settled down now that he knows how the system works (or some other excuse). MOTIVE A witness’s credibility can be affected many times by the motive of a witness or his ability to testify. It is the job of the deposing attorney to try to uncover evidence that would affect the credibility of a hostile witness. There are a lot of ways to do this—and to see how many, just watch television. Screenwriters can think of more ways to blow the testimony of a witness out of the water than will ever occur in real life—maybe. Anyway, one factor that has an effect on the credibility of a witness, is his ability to perceive, observe or actually see something well. Many times an eye-witness has been blown out because the opposing attorney has elicited or otherwise obtained, evidence that it was too dark, too stormy, too bright, or the deponent was too far removed from the situation to have seen or heard what he is claiming that he did (see or hear). Pressure—sometime showing that a person was under pressure to lie, or “expand the truth” can lead to an outright lie. Such as: Jeremy has a gambling problem and owes his bookies $25,000 which he does not have. His friend tells him that if he can sell an old industrial building for him, at the price of $250,000, he will receive $25,000 in commission. Does Jeremy have a motive to say anything to sell the property? You bet. A claim of bias is similar except it is more case related. If Jeremy works for Center Dodge and is only two sales away from the top-salesman honors for the month which is worth a bonus of $7,500 to him, will he sell a Dodge Caravan that has been wrecked and rebuilt and had a lot of miles on it before being rebuilt, to a young couple who needs room for their 3 kids? You bet! But if the young couple found that they bought a piece of junk and sue Center and Jeremy, then bias is shown by the misrepresentation. Another thing that can undermine the witness’s credibility is where the testimony of the deponent conflicts with what the deponent stated earlier in front of others or wrote in a report. Example of inquiry about credibility—circumstances actually happened, names changed: In a personal injury case, the attorney is deposing a witness who claimed that Cecil cut in front of a van that his wife was driving, causing her to hit the curb which caused damage to the wheel and caused his wife to suffer a head injury when she hit the steering wheel. The attorney wants to explore the ability of the deponent to have observed Cecil’s driving. Q: (deponent-centered question) “Please explain how you were able to observe my client’s automobile that night in the dark and with it raining.” A: “I was driving our other car right behind my wife and I saw her hit the curb when a red Subaru wagon cut in front of it.” Q: (questioner-centered question) “Did you observe any other late-model Subaru’s on that street at or near the time of the accident?” 153 A: No. Q: (deponent-centered question) “After the accident, what did you do?” A: “I pulled into a parking space next to where my wife’s van was parked. She was OK, so I put her in my car and we took out after the Subaru to see if we could stop it.” Q: (questioner-centered question) “Did you at any time, driving at night and with it raining, on a busy shopping center street, lose sight of the Subaru—for any period of time?” A: “Yes, for a few minutes, but then we drove around the corner and spotted the Subaru at a KFC restaurant.” Q: (deponent-centered question) “What exactly did you do at that time?” A: “We waited in the parking lot until this man came out of KFC with his order and started to get into his car. At that time, we told him that he had caused an accident 3 blocks away.” Q: “What was his response?” A: “He denied it and said he had to get home or his dinner would get cold. He drove off, but we got his license number and called the police.” Q: (questioner-centered question) “So you have testified here, under oath, that the driver of that automobile struck a van driven by your wife, but you were unable to keep the car in sight until you checked on your wife to make sure she was OK, transferred her into your car, and then drove around until you saw a car resembling the one your wife said struck your van. Is that what you are testifying?” EVASIVE ANSWERS Hostile deponents often give evasive answers so as to de-emphasize or withhold information that could help the “other side.” There are several types of evasions, a few of them are discussed here for illustrative purposes. I just do not remember Very often used, and the response to questions can be, for example: I just do not recall very much. To the best of my memory, I just do not recall anything else. How do you expect me to remember everything that we talked about? Sometimes these are legitimate answers because the deponent simply cannot recall or remember. But that is infrequent, as usually they are used because he does not want to disclose damaging information and at the same time, considering himself as not really lying because his memory is actually not quite that crystal clear. If it is believed that the deponent is using some version of “I don’t remember” response, then the best action could be to ask for documents, every little thing and detail that the deponent can remember, and estimates. 154 Asking for documents One way to handle an evasive witness is to ask if he is aware of any documents that might help refresh his memory. If so, if the document is available, it can be used to refresh a memory. If the document is not available and the testimony is important, the deposition could be suspended until the document is obtained. It is important to remember to complete all the other questioning before suspending a deposition for this purpose. If the deponent will not produce the document voluntarily, then is the time to use the Request to Produce or a Subpoena Duces Tecum. Limited Memory or Selective Memory “Gosh, I can’t remember everything that happened!” or “I just can’t remember everything that was said. When that happens, the only initial recourse is to ask the deponent to testify to everything that they can remember. Keep in mind that sometimes people cannot remember everything that you would like for them to—ask anyone over the age of 60. On the other hand, the memory may be “selective” and just not limited, but that is difficult to prove. There is no “magic” way to handle these situations, but if it is obvious that they claim not to remember one thing that is important but can remember unimportant details, then they are not responsive (see below). Estimate it If a situation arises where a deponent cannot remember a specific fact, such as a date or a number, they all you can do is ask for their best estimate. If, for example, you asked how often the deponent went to the doctor for a particular treatment, and they cannot remember exactly, then ask for an estimate. Or, ask questions that are designed to narrow things down a bit. For example, ask the deponent if he went to the doctor more than once, more than 10 times or more than 20 times. If the deponent does not remember a date, ask if he can remember the week, month or season when the date happened. NON-RESPONSIVE ANSWER Another tack taken by some deponents who just do not want to provide an answer to a question, is to answer a question without really answering it. Sometimes, particularly in middeposition, it seems easier just to accept what is said and slide on by as it seems that most of the information that is wanted has been already given. However, when the information is needed later, it could become apparent that the non-responsive answer actually was not a response to the question. For example: Q: Did you see the light turn red? A: I may have. OK, the answer may appear to be legitimate, but if the answer has to be relied upon at a pretrial settlement, for instance, forget it. There never really was an answer given to the question. When a deponent gives a non-responsible answer, stay cool and repeat the question. Sometimes the question may have to be repeated more than once. Rarely does losing one’s temper or shouting at the deponent get the results that are needed—contrary to NYPD on television. 155 For instance: Q: Did you see the light turn red? A: I may have. Q: I’m sorry, I need this answer for the record. Did you see the light turn red? A: I probably did. Q: OK, then your answer is “yes,” you did see the light turn red? A: Yes. This is a rather simplistic example, as anyone that really does not want to give a direct answer may play ring-around-the-rosie a little longer… ADVERSARIAL DEPOSITIONS So far the discussion has been about situations where a person deposes a hostile witness and the client has arranged for the deposition and the questioning thereof. Following the deposition, the other party—the adversary—has the right to question the deponent also. It is always possible that the adversary will set up the deposition of a witness who is hostile to your client. Usually this is done when the adversary is taking a deposition to preserve testimony to the time of trial in case the witness is unable to attend because they are moving some distance away, or they may become sick, or die (called “perpetuating” testimony – see “Substitutes for Testimony” discussed earlier). When this happens, the adversary will examine the deponent first, then it will be the turn of the other party to ask questions. It might seem obvious, but make sure that the deponent is questioned as there probably will not be another chance to question that deponent. If the adversary uses the information in the deposition as evidence in a later trial, the client will need to know all of the information that the deponent knows that is helpful to his case. One thing that can be done is to ask the deponent about case-related topics that the deponent may know something about but which the adversary has avoided. This could indicate that the deponent knows something that the adversary does not want anyone else to know. If a list of helpful evidence has been prepared prior to the deposition, check the list and asks the deponent questions relating to items on that list. Regardless of which party initiates the deposition, that list of helpful evidence should be the basis for asking questions to elicit evidence that could be helpful. Using the two basic forms of questions and common credibility factors mentioned earlier, attempt to undercut the impact of adverse evidence by asking questions to elicit evidence that will undermine the credibility of the opponent. STUDY QUESTIONS 1. A witness who is biased against the examining party or who is unwilling to testify, is A. an expert witness. 156 B. an unfriendly witness. C. a hostile witness. D. a secondary witness. 2. Deposing an adversary’s expert witness should be well-thought out because A. it increases the difficulty and expenses of the deposition and the deposing attorney must have in-depth knowledge of the field of expertise of the witness. B. they can be a fountain of information so it must be carefully conducted. C. it is normally so easy that the deposing attorney can get over-confident. D. usually these witnesses can be bought off, so the fee to get the expert to testify on behalf of the deposing attorney’s client must be researched. 3. Unless the deposing party has unlimited resources, they should A. probably put no limit on the number of depositions. B. restrict the number of depositions to one or two persons. C. avoid depositions as they never uncover much anyway. D. avoid interrogatories as they are usually worthless. 4. Prior to deposition, there are several steps that should be taken, including A. sending out interrogatories to everyone that could possibly be interested. B. taking all documents that could be damaging to the suit, out of state or destroy them. C. making a list of information that they would like to have and that the deponent might realistically be able to provide. D. always hire an expert witness, even if not needed, to intimidate the opposition. 5. There are two forms of questions that can be used for depositions: A. direct and indirect. B. pertinent and impertinent. C. deponent-centered and questioner-centered. D. active and inactive. 6. A question that is designed to stimulate a deponent to recall specific instances or information that would otherwise have been omitted in response to open inquiries, is A. a questioner-centered question. B. a broader stated question. C. an interrogatory. D. a deponent-centered question. 157 7. A deponent may A. sit in a chair and answer questions. B. identify documents, draw a sketch or diagram, illustrate an action that took place, etc. C. stop the deposition at any time by simply walking out and not returning, without penalty. D. not be allowed to illustrate an action, particularly a threatening one that transpired. 8. Questioner-centered questions are usually used to A. explore new information in more detail. B. rely upon the independent memory of the deponent. C. encourage the deponent to describe events in his own words. D. develop information that the deponent may never have thought about otherwise. 9. When it is apparent to the attorney that a deponent is lying about something that is significant to the case, often the attorney A. will stop the deposition, and accuse the deponent of lying. B. will build up the lie by having the deponent repeat the lie in slightly different form. C. will insist that the deponent write down what they have just said. D. will terminate the deposition and ask for a summary judgment. 10. When a deponent answers “I just do not remember” to a direct question, or “I do not recall,” etc., the evasive witness can be often handled best by A. accusing them of being bald-faced liars. B. remind them of the possibility of perjury. C. asking a judge to direct the deponent to answer correctly. D. asking him if he is aware of any documents that might help refresh his memory, which could lead to a recess until the document is retrieved. ANSWERS TO STUDY QUESTIONS 1C 2A 3B 4C 5C 6A 7B 8A 9B 19D 158 CHAPTER XII – ELECTRONIC DISCOVERY Electronic discovery is a new field, highly technical, and some lawyers are nervous because this is an area that they learned nothing about in law school. However, some knowledge is absolutely necessary in the practice of law today and any study on Discovery, in particular, would be remiss without a discussion of electronic discovery. This text does not cover the subject in its entirety as electronic discovery is too complex to be fully discussed here. It is suggested that lawyers obtain detailed texts and writings in this field, and books are available that are absolutely invaluable. One such book is Electronic Evidence and Discovery: What Every Lawyer Should Know, Michele C.S. Lange, and Kirstin M. Nimsger, published by the ABA Publishing, Section of Science and Technology Law, and there are others, many very recent in an attempt to keep up with the lightning advances of technology. THE RAPID GROWTH OF ELECTRONIC EVIDENCE (For future use, electronic evidence may be referred to as “e-evidence,” electronic data as “edata.” Other technical terms will be explained when they are used or referred to in the text.) With the introduction of the computer, life became more difficult for some lawyers, and less difficult for others. It is not arguable that recently technology has had a tremendous impact on the way that people communicate with each other, with the way that business is transacted, and therefore, the way that lawyers practice their trade. At the mere mention of computers and electronic discovery, some lawyers still tremble, but the fear of the unknown is crumbling as they become aware of the ease of communication with clients via e-mail and the filing of pleadings electronically. And what lawyer—at least of the younger generation—does not have a pocket computer, PDA, laptop or a palm-model to manage a case calendar or access legal research in court. Technology moves fast and one of the off-shoots of this technology has been the creation of an entirely new source of evidence. The importance of this new type of evidence seems to have breezed on by many lawyers as they have fallen behind in adapting to this new era. No longer do lawyers ask clients to search through their file cabinets for paper documents to respond to a discovery request. But that just scratches the surface in the administration of law as courts are now requiring a new knowledge and sophistication of methods of searching via electronic means, even for situations that used to be open-and-shut situations. Today’s lawyers must work with clients to capture electronic documents from a multitude of locations and a number of formats, just to comply with a regular discovery request. How much has it grown? The International Data Corp estimated that there were 31 billion (with a “b”) e-mails sent every day, and are expected to grow to 60 billion by 2006. Just think of the number of e-mails that an average citizen gets every day—not counting spam! It is difficult to do business today without a computer and nearly all businesses store about ¾ of their records in electronic format. The speed of the advance of technology is breath-taking, but the pertinent (and most frightening) aspect of this to lawyers is that one (on-line) report claims that for an or- 159 ganization operating in all 50 states, there are as many as 2,500 laws that could apply to their electronic record-keeping. Employees throughout corporate America are sending e-mail messages to each other, often with candid remarks since they feel that no one can read their messages except the ones they sent them to. Besides, it is a lot faster to e-mail or instant-message “stuff.” It is even preferable to telephones in many cases (not too long ago, parents thought that their kids would never be able to communicate with anyone else because they no longer learned penmanship in school, and no one except the few who wanted to be secretaries, could type!). This candor that permeates the electronic messages can certainly change the entire course of a lawsuit with just a few strokes. There are innumerable examples of e-mails that the authors now know should never have been written. An example was quoted in the Wall Street Journal, “Grubman Informed Weill of Meetings with AT&T,” Nov. 15, 2002 (more recently quoted in the Weekly Standard, 3/07/05), an e-mail from Jack Grubman, NY Stock analyst: “You know everyone thinks I upgraded T [T&T stock]…Nope. I used Sandy [Weill, Citigroup’s Chairman] to get my kids in 92d St. Y Preschool (which is harder than Harvard) and Sandy needed [AT&T’s Chairman Michael] Armstrong’s vote on our board to nuke Reed in Showdown. Once coast was clear for both of us (i.e. Sandy clear victor and my kids confirmed) I went back to my normal negative self on T [AT&T]…Armstrong never knew that we both (Sandy and I) played him like a fiddle.” As should be obvious, this e-mail along created a huge amount of information that had to be identified, collected, searched, reviewed and produced in case of a civil suit (or a government investigation). Also, criminal cases have been influenced by technology as evidenced by the numerous drug dealers who run their “business” by means of a hand-held personal digital assistant. And, of course, everyone is aware of the pedophile tool of e-mails who use it to reach their underage targets, often by the simple means of using chat rooms. There are few criminal cases where there are no electronic traces of their criminal activities. Another often-quoted criminal case where computer forensic protocols were important was where a Presbyterian minister was prosecuted for murdering his wife. His wife was found face down in the bathtub at their home and the minister was beside her body, sobbing and asking for help. The autopsy revealed that she had ingested large amounts of prescription drugs just before she died, so it could not be determined whether it was suicide or homicide. However, the police took his computer and a specialist conducted forensic searches on the computer and discovered that it had been used on several occasions to conduct Internet searches on such things as “household accidents,” “bathtub accidents,” and “prescription drugs.” In addition, a suicide note that was offered to exculpate the defendant was actually created by computer several months after the death of his wife. This analysis played a big part in the conviction of the minister in the death of his wife. (State v. Guthrie, 627 N.W.2d 401 ([S.D.2001]) Computers have become a vital point in any investigation in any case since nearly all interaction with a computer or other piece of electronic media (and they seem to invent new ones every month) creates an electronic trail of evidence. In today’s world, the computer media is the best place to start to look for potential evidence in most cases. The evidence could be on a hard drive 160 on a computer, or a network of servers, on a “floppy,” CD, DVD, or backup tapes, or on “flash” drives or other external drives. If a lawyer practicing law in the 21st century is to serve his clients, he must be prepared to understand and use this new form of evidence, but as important, to understand and use the unique technical and legal issues that come with it. As stated in the beginning of this chapter, this discussion will not qualify the student as a computer or electronic “expert” but it should arouse interest in those who are not acquainted with this field of Discovery so that they can continue to amass information so they can be prepared for zealous advocacy in the modern day. VIVA LA DIFFERENCE Yep, there is a difference between paper evidence and electronic evidence, but basically, they are very similar. A computer file is different than a filing cabinet physically, and understanding the differences is a good place to start this discussion. If you are computer-literate or advanced in this field, understand that this text is written so that those who are not as knowledgeable in the field can understand the basics. HOW IS DATA STORED? Having said that, basically (very basically), the process starts when documents, files and programs are saved on a computer—written onto the hard drive in several places. When data is stored on a computer, it is written to a “platter” or several “platters” which resembles a CD-Rom, and the information is stored in a number of sectors.” When the data is entered into the computer, it is placed in the drive randomly as there is no logical order on which the data is stored on the platter(s). The computer system (such as Windows) determines how and where the files end up on the hard drive. This may sound weird, but the purpose of the computer system is not where to store the data, but to optimize the data retrieval process—which is normally guided by the computer’s central processing unit (CPU). The computer has creates an index of locations of the data that is stored on the drive, (known as the File Allocation Table [FAT] for most operating systems). Therefore, when the operator wants to retrieve a file, the FAT is used to determine just where in the heck that data has been stored. This FAT has been compared to a library card catalogue which tries to organize the storage of books in the most logical and optimal manner. One simply looks up the name of the book of interest, and the card catalogue tells where the book can be found. The computer system that writes and retrieves data is critically important when computer forensic investigations are used, particularly in the areas of deleted data, discussed in detail later. It is often pointed out, and rightfully so, that the one of the biggest differences between paper and electronic data is in respect to its destructibility. Computer data (digital data) is much more difficult to destroy—which may come as a surprise to the neophyte as all you have to do with a computer is hit “Delete” (or Del, or backspace and type over, etc.). With paper documents, one can run them through a paper shredder, toss it in the fireplace (like in the movies), or some other destructive process—therefore it is gone, forever, goodbye. On the other hand, data, mostly emails are not so easily destroyed. E-evidence tends to remain on a computer’s hard drive, even after it has been “deleted.” Every electronic document or transaction leaves its own electronic 161 fingerprint on the hard drive so when the data is deleted, the space that was occupied by that file is marked as available for overwriting by the file allocation table. Experts are quite proficient in recovering parts of the “deleted” data, until and unless every single sector that was previously used by the file, has been written over. A simple method sometimes forgotten, is that “deleted” data will go first into the “wastebasket” in some programs, and will remain there and can be completely recovered until the wastebasket is “emptied.” Every fifth-grader knows this, but it is amazing how many adults forget it… Another distinction is, of course, the volume that is created, and as importantly, is maintained. In actual practice, while the pure volume of electronic data totally overwhelms the volume of paperwork created, electronic data, once it is created, is rarely destroyed because it is so easy to store it. The flip side of this is that while paper documents are kept for a while in a retrievable fashion, and then destroyed later, electronic data takes a miniscule amount of space so more data is stored. Think what that does for Discovery? While searching for discoverable evidence, if the files were paper, it would not be overwhelming except in the very rare cases. But with electronic data, the number of files could easily be overwhelming. This is not insurmountable, as electronic evidence technology is available to help with this problem, as discussed later. Another difference is the information that is available about the data itself. If you are not familiar with “metadata” —it means the data about the data—it is information about the creation of the data and subsequent modifications, which can spell out what has happened to a particular document since it was created. Basically, it usually refers to the date, time and in some cases, the identity of the person creating or sending or receiving the e-mail; or the name of the person who last accessed the document. For those who use Microsoft Word or similar wordprocessing programs, for example, you can retrieve a document that you have been working on and the program will tell you when you (or some one else) last accessed the file, etc. This is important because this information can save a lot of time and money for an attorney instead of having to undergo a long, expensive and objective coding process. Another major difference, of importance to lawyers, briefly mentioned before, is that people talk a lot more openly, express more opinions, are more critical and are more casual with e-mail than they would ever be if these communications were written into letters or memorandums. Maybe it is not logical but that is the way people are. Lawyers have found more spontaneous and unguarded remarks in e-mails than they ever did in other forms of communications. Often these “casual” remarks in e-mails messages can secure a cause of action that would probably never arise if the communications were only on paper. Think about it—these messages tell the story of the opinions and feelings of the individual at that particular specific time and in the same precise situations that gave rise to litigation. What would any litigator want? Many scholars and experts in this field maintain that this is most important reason why lawyers seek electronic evidence regardless of how technical and difficult it may be to retrieve, collect and producing this information. Note: “Computer Forensics” and “Electronic Discovery” are terms used in this discussion of electronic evidence, and there is a difference. 162 Computer Forensics investigates e-evidence and provides a detailed analysis of the data obtained, usually obtained from a single hard drive, or more likely, a Personal Computer. They search for information that has been deleted and for the basic information of who wrote what and when. After their investigation, they recreate the time of the data in respect to critical events of the case. Usually there are passwords and/or encryption, which only the experts can discover and untangle. Finally, they report the data that they have discovered, and generally are then used as expert witnesses. Electronic Discovery is really performing duties that would occur even if computerized or electronic data were not available—the gathering, searching, filtering and the producing of large volumes of information that is relevant, for legal review. E-discovery uses data that is on e-mail systems, network sharing, desktops and backup files and such data is accessed, but is not analyzed. While it does include active and archival data, usually it does not include discarded, hidden or deleted data—those are tasks for computer forensics. “Electronic Evidence” encompasses all computer and technology-based evidence, regardless of how it is obtained or for whatever purpose, and includes e-mail, instant messages, documents, databases, spreadsheets and all other types of electronic data, and it can be stored on computer hard drives (internal or external), personal assistants (PDAs), cell phones, floppy discs, CD or DVDs, USB drives, backup tapes, servers, flash drives, and more. COMPUTER FORENSICS There are formal educational programs in computer forensics at this time, but those who practice this discipline are those who have gathered considerable experience over the past ten years and the technicians train for long periods of time to become qualified computer forensic experts. There are companies that offer computer forensics services in the form of putting together computer-related conduct and technology. From computer and other electronic media, they fulfill the “six best friends of you and I, are who, how, what, where, when and why”— although it can be quite difficult to determine “why.”. They use many techniques to obtain their goals, including determining recreating a chain of events using Internet activity, e-mail, file deletion, etc.; searching for key words and key dates and determining what data is relevant; searching for privileged information, previous document drafts, and for particular programs (such as file deletion programs; discovering passwords and clearing encrypted files; and/or authenticating data files, including the date and time stamps of those files. Usage There have been many cases where a person, often an employee, attempts to delete files by deleting and then downloading a substantial file over the top of it. Even if the principal data is not recoverable, the computer forensic experts can trace what had happened to the data, and in several cases, that was sufficient evidence to show that a person had deliberately destroyed the files. 163 Sometimes files are destroyed through drastic means, and some of these means—actually happened—include attempting to “drown” a hard drive by immersing it in water, beating up the drive with a hammer, setting the computer on fire, and more “scientific” means such as reformatting a hard drive or using a software utility program to delete the information. Sometimes Engineers just cannot recreate such files, but they can tell the time that the information was deleted and how, which sometimes is enough to legally “point-the-finger.” E-mail Use Computer forensic engineers are often called upon to investigate e-mail communications in cases such as divorce cases, online harassment, office affairs, personal harassment, corporate fraud, pedophile activities, etc. One case in particular shows the extent of what the forensic engineers can do. A company hired compute forensic engineers to investigate e-mail evidence in a sexual harassment case, and they examined an e-mail which was supposedly sent from the supervisor of the plaintiff, to the Corporate Chairman (with whom the plaintiff claimed an affair), and in the e-mail, was a statement that the supervisor had “fired her like you told me to do.” The electronic sleuths were able to prove that supervisor had not sent the message, but that the plaintiff had written and sent it. The harassment case was settled, however the matter was referred to the District Attorney with the result that the plaintiff went to jail. ELECTRONIC DISCOVERY E-discovery is used to manage huge volumes of electronic information that is needed for litigation, for compliance to regulatory matters, government investigations and other such matters. Data, both active and archival, are accessed and are provided to clients for legal review, but it is not analyzed by the e-evidence expert. There are such huge amounts of data out there, obviously not every e-document on a computer or backup tapes is responsive or relevant to a request for discovery; therefore, data filtering technology reduces the data to where it is manageable. Usage There are many complex cases involving large amounts of data. Assume that a client is suing a technology or technologically-run company for something like anti-trust. In those cases, there can be several hundred gigabytes of data just on e-mail and documents from many custodians (or users) who usually are present and past employees of the company and who had/has access to the data files. What the e-discovery engineers usually do is to collect data on current employees from the client’s server and restore backup tapes. Usually several engineers go to the processing site to collect the data, which is then processed at a distant production laboratory. Typically, the engineers could determine that many—sometimes millions!—pages could be identified by using a keyword list containing as few as a hundred word/phrases/terms. Usually these documents would not be printed out, but would be imported into an online repository where they can be reviewed by the attorney. To illustrate what can be done if necessary, a law firm that represented a corporation that was in the process of acquiring one of its major competitors, requested assistance in producing e-mail and other documents under the “Second Request” part of the Hart Scott Rodino act of 1976. The “Second Request” was 18 pages, single spaced. The corporate date was not in the company’s backyard, but actually was spread over 11 geographic locations, including several in South 164 America and Asia. The data requested came from over 250 employees in the company doing the acquiring and was located on several various operating systems, e-mail packages and other software. E-discovery engineers visited each company location, including foreign locations, and the data that was required was captured in less than two weeks after original notation to the law firm. Much data that was acquired was from newly identified individuals. The production for the Second Request form consisted of over 4 million pages. LEGAL ISSUES There have been innumerable cases which address electronic evidence in a wide variety of situations and from all over the country. Closer to home, the decision was that a party that produces electronic evidence must be protected against undue burden and expense associated with the production of that evidence. (Southern Diagnostic Assoc. v. Bencosme, 833 So. 2d 801 [Fla. Dist. Ct. App. 2002]) Other cases have determined that electronic evidence is discoverable as early as 1993. Courts have also decided that deleted data can be discoverable (Simon Property Group v. Simon, Inc. 194 F.R.D. 639 [S.D. 2000]) In 1970, Federal Rule of Civil Procedure 34 was amended to include “data compilations from which information can be obtained” when describing “documents.” Also, Rules 26(a)(1)(B), in 1993, added disclosure: when the parties are making initial disclosures. (General Provisions Governing Discovery; Duty of Disclosure) (a) Required Disclosures; Methods to Discover Additional Matter. (1) Initial Disclosures. Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties: … (B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment; -when the parties are making initial disclosures. This is the discovery language that most lawyers that are seeking opponent’s electronic documents, build their arguments around. Federal Statutes and rules of Agencies have been revised to include electronic evidence. In 1984, 18 U.S.C. § 1030 —The Computer Fraud and Abuse Act (CFAA) was created which regulated fraud and fraud-related activities in relation to computers. This is used by the Federal government to prosecute computer hackers. The first time (of note) that CFAA was used was when a Court of Appeals found that a man convicted of planting a “computer time bomb” in his former employer’s system was not entitled to a new trial on the basis of juror prejudice, as the man was originally convicted in large part due to the testimony of the computer forensic experts and reinstated the trial court’s verdict of guilty on one count of computer sabotage. 165 This was an interesting case as the defendant had planted a program in the central file serving the network while he was employed by the company, and after he was fired, the program “bomb” exploded, figuratively speaking, which caused serious damage and business interruption to his former employer. (Incidentally, when computers were first becoming vital to businesses, this was threatened many times by computer programmers because they could blackmail the employer into their keeping their job through thick-and-thin. These programs were set up so that the employee was nowhere around—sometimes they no longer worked at the company—when the document destruction happened. Several programs would “detonate” unless the programmer entered a code or password every so often.) At the trial of the “bomber,” computer forensic experts testified that the purge of the files was intentional and that only someone with a supervisory level access to the network could have planted the program. In this case, evidence was uncovered which showed that anyone who attempted to log on to the server after the destruct commands were in place, detonated the program which deleted huge amounts of data. The defendant maintained that the deletion of files was “accidental,” but the electronic super-sleuths were able to testify that because of the specificity of commands for that program, it could not have been accidental, and furthermore, they were able to discover the same string of commands from the computer at the home of the defendant. (United States v. 269 F.3d 228 [3rd Cir. 2001]). Besides regulating computer fraud and abuse, there are new federal statutes such as the Sarbanes Oxley Act, the Health Insurance Portability and Accountability Act, and the Patriot Act, which imposed requirements on organizations in respect to retention and destruction of certain electronic records. Basically, companies must now maintain a balance between appropriate destruction of old and non-regulated documents and the preservation of significant documents. The law now requires electronic document management and the protection of such records as informational assets. STATE RULES One of the first states to pass amendments that incorporate electronic evidence issues was California which, in essence, obliges more judicial supervision over technology use in conducting discovery and related issues. Texas has revised its Civil Rules of Procedure to address discovery of electronic or magnetic data. Parties that seek discovery of such data must specify the form in which it should be produced, and responding party must comply if the data is reasonably available in its ordinary course of business. Maryland, Illinois, Wyoming, Mississippi, New Jersey and Arkansas have rules related to electronic discovery or computer forensics. In Florida, Middle District of Florida Local Court Rule 3.03(f) states that litigant’s counsel should utilize computer technology to the maximum extent possible in all phases of litigation, such as to serve interrogatories on opposing counsel with a copy of the questions on computer disk in addition to the required printed copy. The state courts pay special attention to the costs of retrieving such documentation and the requesting party generally has to pay the reasonable expenses of any extraordinary steps that may be required to retrieve and produce the document. 166 WORK IN PROGRESS Because electronic discovery is unique, there are a plethora of laws, but still there remains a lot of “holes” that are open to opinion—but these are being filled, rapidly. There are proposals to modify the Federal Rules of Civil Procedure 26 and 34, and automatically there will be states that will adopt such modifications. The advisory committee, to its credit, is listening closely to practitioners, judges, electric evidence experts, academics, government researchers and law and policy think-tanks. One of the modifications being discussed is for a better definition of “documents” and “data compilations.” There are already such definitions to include electronic data used for discovery, but the rules have to keep up with technology, such as clarifying whether metadata, embedded data, cookies, temporary files and deleted documents constitute documents or data compilations. Also under consideration is Rule 30 changes which relate to depositions. They appear to be looking for a method or special procedure that could be used to depose information systems managers to provide inexpensive but useful, technical information on the types of operation systems used, storage location for data, backup systems, etc. Also, Rule 37 which pertains to sanctions for violation of discovery procedures, can be revamped to have a rule in respect to spoliation of electronic materials. One of the problems facing those who are trying to get such rules, laws and regulations upto-date to meet the electronic generation, is the fact itself that by the time suitable rules or regulations are created, they are already obsolete as technology moves so rapidly. The only way that new regulations can be created and tested is to make them sufficiently broad to cover not only what is applicable in today’s technological world, but what would make them applicable tomorrow. Regardless, the proliferation of electronic information is the raison d’ étre of these legal developments. And to keep pace with tomorrow based on yesterday’s history, as technology continues to grow, the legal community will learn more about electronic evidence, and precedents and protocols will develop, as they always do. Eventually, however, sooner or later, attorneys and their clients are going to have to know what documents can be discovered and where they are. Big task. Keep reading. STUDY QUESTIONS 1. In respect to discovery, technological advances has been A. the creation of a new source of evidence. B. at the very best, confusing and technical and of very little value to attorneys. C. limited to videotaping of depositions. D. very slow because many courts still use yellow pads and pencils. 167 2. In respect to keeping track of laws relating to record-keeping, because of the advances of technology, A. attorneys do not really have to worry about the number of laws, as the total is somewhere around an average of 100 new laws on the subject per state. B. for an organization operating in all 50 states, there are as many as 2,500 laws in this respect. C. every lawyer in the country now has a record of and understands all laws relating to electronic record-keeping. D. there are much fewer laws than there used to be in the “paper” era. 3. The electronic communication that seems to have gotten more people into trouble is A. I-pod recordings. B. cell phones. C. e-mail. D. electronic data storage. 4. The main reason that computers have become so vital in any investigation is A. computers are a cheap way to hide things as nothing is written down. B. if the person has a password, nobody can ever find out what they have entered. C. that Apple computers are furnished to schools, so children grow up using them. D. a computer or other electronic media creates an electronic trail of evidence. 5. The difference in paper and electronic evidence A. is huge and laws that pertain to one cannot pertain to the other. B. is only the cost of the writing instrument. C. is not as broad as many think because basically they are very similar. D. is that lawyers work with paper evidence, but it takes technicians to work with electronic evidence. 6. As compared to paper data, electronic data A. is much harder to destroy. B. is easier to destroy. C. is no different than paper data in destructibility. D. is incomprehensible except to a small cadre of highly trained technicians. 7. The term that is used to describe information about the creation of the electronic data and subsequent modifications, is A. metadata. B. forensics. C. proportionality. D. data entry procedures. 168 8. Basically, in computer forensics, the investigator A. restores deleted data. B. searches for deleted data and for the basic information of who wrote what and when including recreating the time of the data in relation to the critical events of the case. C. searches for ways to obtain data by by-passing firewalls and passwords. D. duplicates (mirror-imagine) data from one storage area to another. 9. Electronic discovery is used A. only by highly trained forensic technicians. B. only for those cases where e-mail is involved. C. only when data is stored on computer hard drives. D. to manage huge volumes of electronic information needed for litigation, compliance and other such legal matters. 10. According to the courts, a party that produces electronic evidence A. must be protected against undue burden and expense associated the production of that evidence. B. must always bear the cost of production of evidence. C. can claim the right of electronic privacy so no party can obtain the information except by order of a judge, and in the most heinous of criminal cases. D. must register the passwords with the state Secretary of State’s office. ANSWERS TO STUDY QUESTIONS 1A 2B 3C 4D 5C 6A 7A 8B 9D 10A 169 CHAPTER XIII – DISCOVERABILITY, PROPORTIONALITY & RELEVANCY Some lawyers continue to believe that they will not have to “master” the technical and confusing world of e-evidence—after all, they just learned how to turn a computer on and send emails. However, like it or not, electronic documents are just as discoverable as are paper documents. The truth is that e-evidence is discoverable and those who practice law must be prepared to request it, to respond to requests for it, and ultimately produce it. “A discovery request aimed at the production of records retained in some electronic form is no different in principle, from a request for documents contained in any office file cabinet.” (Linnen v. A.H. Robins Co., 1999 WL 462015 [Mass. Super. June 16, 1999]) They further stated: “To permit a corporation…to reap the business benefits of such [computer] technology and simultaneously use that technology as a shield in litigation, would lead to incongruous and unfair results.” Other courts have ruled that information that is stored in computers should be freely discoverable as information not stored in computers, therefore parties requesting discovery should not be prejudiced thereby, and the party responding is usually in the best position to call up its own computer stored date which it can do more economically. In the early years of producing computer-stored data for discovery purposes, some parties argued that the important information had already been produced in paper form, or that all of the “good” or “meaningful” evidence had been printed out, so there was no need to go into the computer files. This no longer holds water as courts have ruled that data in computerized form is discoverable even though “hard copies” (i.e. paper copies) have been made. Those who request computer data appreciate its flexibility when receiving discovery items in that format, as the data can be easily transferred to another location and then imported into case management systems. They can be readily searched and they contain other information (metadata) that paper documents do not contain, such as the time document produced, by whom, in relationship to what/whom, etc. In today’s environment, litigants should be prepared to produce electronic information and to do so in electronic form if necessary. PROPORTIONALITY FRCP 26(B)(2) establishes limitations in the form of a proportionality test: “…The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed dis- 170 covery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c) (our underlining for emphasis). In particular, note (i), (ii) and (iii) as underlined (for emphasis). These principles apply the same to electronic evidence as it does to any other kind of evidence and courts have so ruled that these rules instruct that computer-stored information is discoverable under the same rules as those that pertain to tangible, written materials. Actually, electronic evidence is discoverable but it is not more discoverable than written materials, i.e., hard copies. Whereas lawyers have had to understand the fundamentals of their case, including the legal and financial situations of the parties concerned, but they also have to understand the technical aspects of e-evidence so that they can properly demonstrate the burden of obtaining evidence and the expense of doing so. Courts have not shied away from the possible added expenses of obtaining e-evidence. One court stated the problem precisely: “(E)conomic considerations have to be pertinent if the court is to remain faithful to its responsibility to prevent ‘undue burden or expense’….If the likelihood of finding something was the only criterion, there is a risk that someone will have to spend hundreds of thousand of dollars to produce a single e-mail. That is awfully expensive needle to justify searching a haystack.” (McPeek v. Ashcroft, 202 FRD 31 [D.D.C.2001]) The rule of proportionality is the same for e-evidence as it is for producing paper, i.e., the legal costs, and other costs incurred, must be in proportion to the size of the claim. This should be pretty self-evident. If, for instance, a lawsuit is brought in the amount of $50,000, or even twice that amount, if it would be necessary to search the computer files of an international company or a company with several geographical locations, in which the information sought could be housed, it probably would not be practical to search all of the data on the computers and backup tapes. RELEVANCY Just as in any other form of evidence, whether e-evidence is relevant to the claims and defenses in the litigation is very important. One case that made the news recently was where a plaintiff sought discovery of Wal-mart’s electronic database that contained customer incident reports and employee accident review forms, and the district court granted the request with no limitation. However, the appellate court held that the discovery order was overly broad and should have been restricted to incidents relevant to the claim, i.e. falling merchandise. Also, there should have been geographical and time frame limits set by the court. Sometimes it would appear that just because evidence is electronic does not mean that the parties concerned have access to all of the electronic data, whether it is case-related or not. Simply, e-documents are not more accessible for discovery than other forms of discovery. Having said that, there is one area in which the area of discovery with e-evidence is much broader, and that is the ability of litigants to obtain access not only to business records, but also to obtain information maintained on a home computer. Everyone should be aware of this as tel171 evision news (and television & movie programs) has images of law enforcement agents walking out of a house carrying a PC. While this can be rather common for criminal matters, it also applies to civil litigation. Conversely, in the world of paper reports, it would take an earthshattering lawsuit under extraordinary circumstances before homes can be searched for documents. This was bound to happen, of course, as soon as the computer world allowed more and more of the working population to work at home. There have been several recent instances of home computers being seized, but one of the most publicized incidents (particularly in the Minneapolis area) involved a labor union dispute with Northwest Airlines and its flight attendant union. Supposedly, a “sick out” was organized by a group of flight attendants (which was illegal) and Northwest requested access to their home computers as these employees had used the computers to organize the “sick-out.” It acknowledged that these computers also contained personal information. The court granted access to these computers, but it fashioned a “protocol” which was designed to protect the personal information on the computer’s hard drive unless it was relevant to this particular case. Plaintiff’s (Northwest Airlines) electronic expert was appointed to act as a disinterested third-party on behalf of the court. This expert collected the defendant’s hard drives and provided to the court all data that it deemed necessary. (Northwest Airlines v. Local 2000, C.A. No 0008DWF/AJB [D.Minn. Feb.2,2000] etc.) This case is not alone as other courts have allowed home computers to be searched for relevant evidence. However, litigators must be prepared to argue the discoverability of information that may be stored on home computers. LOCATION OF DATA It should be no surprise that one of the major problems with e-evidence is where it is stored. Previously counsel had to have detailed information as to where documents were stored, and even where it might be hidden. Now, the counsel has to know the many places where data could be stored, such as desktop PCs, laptops, servers, floppies, CDs, etc. It isn’t easy, as the possible storage locations are almost endless, and technology changes. Hundreds of pages, for instance, can now be stored on a $35 “flashdrive” which is the size of a small pocketknife, and which leaves the same data on the computer and which can be erased. However, a lawyer does not need a technical background or education in computer programming or engineering in order to navigate e-discovery. One should start from the perspective of data collection and the types of media that can store e-evidence. This is easier for a nontechnical person to understand and is more straightforward than analyzing data collection as it is stored on a computer. In other words, concentrate on where data can be stored, and not how all the “I” and “O”s operate to allow the computer to perform such functions. One does not need to know how to repair a clogged carburetor to be a good driver… LAPTOP/DESKTOP COMPUTER HARD DRIVES Envision a desk of a busy individual. Normally the most recent information on the desk and/or the most important information would be found on the desk. There are two storage baskets, one for new data to be acted upon, and the other for data that is ready to be stored away. The active files are a good indication as to what an individual is working on at any particular 172 time. Today, an individual’s desktop or laptop computer is the best place to start an einvestigation to determine exactly what the individual has been working on most recently. Data that can be seen or readily available upon booting up (turning on the computer) is called “active data.” “ACTIVE DATA” is important because the collecting, processing and producing it is the very heart of electronic discovery. In addition to the active data, a desk/laptop computer can contain data that has been deleted, data that is created automatically by the computer system (temporary files is an obnoxious example), and there can be data stored in fragments on unused portions of the hard drive. The process of recovering and analyzing this data is known as computer forensics, and this process is not accessible to the user in most cases. Very often the production of electronic evidence will consist of components of both computer forensics and electronic discovery. NETWORKS/SERVERS In the “olden” days—even today sometimes—an organization would have a file room where documents that are not active are stored so that they will be available for others at later dates. In today’s electronic information world, this storage function can be compared to a computer network. In a corporate environment, few have their own “standalone” computers as more typically, all computers are attached to a network server which allows the users to share their hardware, software and files, plus a lot of other advantages such as scheduling and messaging among the employees. An employee in one location can be working on a document and other employee miles away can be working on the same document at the same time and sharing the same information. An organization’s Information Technology (IT) department can arrange the network in many ways, but the most usual system is the client-server network where each individual computer is a “client” of a server used by all computers, which in itself is a large computer or computer infrastructure with a large amount of disk space. Every individual user has access to information placed on the network, but they cannot access the hard drives of other individuals. Therefore, in the “paper world,” an attorney would search the central file room for paper documents, they must search the server’s hard drives when they conduct an electronic discovery. BACKUPS As anyone who has ever used a computer can testify, it does not take much to obliterate a lot of work and files. Users are all trained to backup their work periodically so in case of an unforeseen interruption in electricity, or a spike in electricity, their work will not be totally lost. Once the work is completed by the individual and then stored on a hard drive for access in the future, this creates a hazard as the storage drives, discs or tapes could be accidentally destroyed. For instance, most large insurance companies maintained backup records in salt mines in Kansas, and even today, many of them still store their electronic backup data there. 173 Backup software is used to copy system information to magnetic tape or other such archival device that is moveable. The methods of backing up the work and the timing are usually the responsibility of an IT staff member, and are conducted according to a procedure or a calendar. Most organizations conduct daily backups, usually at night for work that occurred that day with full weekly or monthly backups being performed and which copy everything in their system at that time. These backups can be stored for longer period of times, depending upon the type of business and the backup policy. For instance, life insurance companies store their files for many years for obvious reasons (one of the reasons the salt mines in Kansas are used). Generally, organizations are very strict about enforcing their backup policies, while other companies are less stringent and they can at times create large amounts of superfluous files which must be searched for discovery. There have been cases where a firm’s e-mail retention policy would have destroyed the evidence obtained in discovery because the e-mail files were kept for much longer periods of time. The archival data is very valuable in discovery because it provides a picture of the documents and e-mail traffic at a particular time. It is also valuable when it can be compared to active hard drive data because it can reveal deletion of data, tampering with files, even e-mail communications when the e-mail itself no longer exists. Backup tapes are not the end-all in e-discovery at a specific time or regarding a specific document. If an e-mail is received and then deleted on the same day, this will not appear on the backup tape. However, a forensic investigation of the hard drive of either the sender or the recipient of that e-mail may produce a copy of the e-mail—depending upon the length of time since it was deleted. REMOVABLE MEDIA When looking for paper documents, attorneys will look to see if any of the documents have been removed from the business premises to the home or other office of an individual. Questions as to whether files have been removed by one of the officials or other party to a location away from the business location are asked, for both the paper documents and e-evidence. For many years, the 3.5” floppy disc contained information that could be transferred from a computer to the disk, the disk stuck in a pocket and removed from the premises unbeknownst to others. Today, that is all passé—the CO-ROM or DVD took their place, and in addition, there now are the mini-disks, Jazz and ZIP disks and memory cards. Technology continues to “minimicro” all technology and some small devices can actually store more than a gigabyte of information and can be hidden in a pocket (or stuffed inside the trousers of certain ex-politicians…). But fear not, the problem of information growing their own legs and wings and disappearing to the great unknown is not insurmountable. It is just that the counsel today must ask the client or the opposing party pertinent and specific questions in this regard: Do the users of the data in question here, typically store data on floppy disks, CDs, ZIP disks, USB drives or any other external or portable media? 174 Has any person downloaded excessively large amounts of data since commencement of the suit (depending upon the situation, “excessively” can be “played with” so it should probably be defined such as “more than usual,” or “in excess of what he would normally download,” etc.)? Where is the central storage location for archived removable media? Where else would this information be stored? OTHER DATA SOURCES And we cannot forget the cell phones, the PDAs or the “Blackberries.” Cell phones provide e-mail capabilities in many cases and with some, they can download directly to a computer both messages and pictures. Personal Digital Assistants (PDAs) are nothing more than hand-held computers and many have e-mailing capabilities also. Handheld computers have some memory, but they allow the user to download the information into a server or computer by telephone line, or wireless. Electric tablets are relatively new and they provide another way to communicate. In any event, the wording of the counsels’ discovery requests should include relevant evidence that might be stored in one of these media. ANYWHERE DATA CAN BE LOCATED If you had a computer for the past ten years and you used it frequently, the odds are heavily against your still having the same computer today. It wasn’t too long ago that it seemed impossible to ever use more than a gigabyte of memory on a hard drive. Today a personal computer can be purchased for under $2,000 that has 200 gigabytes of memory, or more. Obsolete—that is what happened. So, what happened to the data on the old computer? Businesses often keep old computers and old servers when they become obsolete because…for whatever reason. Therefore this could be a source of important data on discovery. Even “broken” computers can be useful as usually the hard drive is still in good shape. Qualified computer forensic experts can often retrieve data that is just not accessible to the average person. STORAGE MEDIA Much has been said about the storage of data and how easy or hard it is to access data stored thereupon. For those unfamiliar with these devices, a basic understanding of how much data each device can handle and the ease of access could be helpful (compliments of the local Computer City). Back-up Tapes These devices hold the most storage of data, using magnetic tapes they average about 40 gigabytes of memory. Data on a backup tape is usually not filtered but is “dumped” so it contains all of the information on the computers, servers and/or network at the end of a day, week, and month. 40 gigabytes of data would approximate over 3 ½ million pages of documents, but of course, if there are a lot of images, images take up more space, so the number of pages would be less. It is the most difficult to access because it is a storage facility only and as such, is the most guarded by pass words and encryption. It will contain not only e-mail, documents, spread sheets 175 and other electronic data, but it will include private corporate information so the company is always concerned about their private information being made public. If there is sufficient information to be stored, one company can have several backup tapes, although they are usually designated as “storage” tapes and only certain archival data is stored on them. Computer Hard Drive A hard drive is the storage space for a computer. It is rather difficult to say what the “average” capacity of a hard drive today is, but the new PCs sold at retail outlets have a minimum of 60 gigabytes and several moderately priced PCs offer 200 and 250 gigabytes! That means that a typical computer hard drive may have several times more memory than the backup tapes but since a computer would not usually have 200 or more gigabytes of active data, that would not cause a problem with the backup tapes. The reason for the continual increase in the size of the hard drives of computers is because of digital imagery. A “picture is worth a thousand words” and in computer memory, that is really true. Otherwise, why would a typical household computer need more memory than the computer that was used by NASA to send the first man into space? Answer—pictures and more pictures. Now we have digital cameras so their pictures can be downloaded by anyone into a PC, printed from the computer printer (or other printer), assembled into albums, and the original pictures are rarely deleted from the computer—just in case Aunt Helen might want a copy someday… What this points out is that during discovery, a picture might be worth a million words if it illustrates an important point being litigated. So, discovery of computer hard drives should also take into consideration digital pictures. It is rather difficult to access the computer hard drive, but it is not nearly as difficult as the backup tapes. Experts in the field can usually access information on a hard drive relatively easy unless, of course, there is a strict security system installed with difficult encryption, etc., designed to keep the information confidential. But these systems are rare and very expensive. USB Drive A USB Drive operates much like an external hard drive but in effect it creates a portable optional drive. It can hold up to 2 ½ million pages as some of the USB drives average 80 gigabytes. This is an easy way to store data and to transfer it from one place to another, so it is relatively easy to search. DVD A DVD is familiar to all as it has replaced video recorders for entertainment in most applications. It collects data from a computer much like a CD (most DVD burners are part of a CDDVD burner of a computer). It has more capacity than a CD, over 4 ½ gigabytes, or over 400,000 pages of text. It is easy to access, all you need is a DVD player. 176 CDs A CD contained about 6 ¼ megabytes of data, or about 55,000 pages of data, and it is also easy to access. New computers usually can “burn” (write on) and read CDs, pretty much replacing the “old” 3.5” floppy disk. STUDY QUESTIONS 1. Contrary to popular beliefs of many in the legal profession, A. electronic discovery is just as discoverable as are paper documents. B. computers must be always operated either by technicians or young children. C. clients who are versed in electronic record-keeping, must obtain legal advice from experts in the field of electronic forensics. D. the larger the database, the more impossible it is to recover data from it. 2. As the result of a discovery request, Acme Corp. produced all of the records requested from their data storage and provided them in paper form. A. That is all that they have to do. B. The courts have ruled that data in computerized form is discoverable even though “hard copies” have been made. C. Paper format is acceptable, but every page must be signed by a notary as to its authenticity. D. Acme need not produce any electronic records because they are no one’s business. 3. Perhaps the most attractive feature regarding computer data is A. that everyone can read and understand it immediately. B. word processing programs do not allow for “legalese” or long words to be used in documents. C. it flexibility as data can be easily transferred to another location and then imported into case management systems. D. the wide variety of fonts makes it easier to read. 4. “…The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;…” is part of A. Rules of Evidence limiting discovery. B. the proportionality test. C. the relevancy test. D. the test of frequency. 177 5. The area of discovery where electronic evidence is broader than other forms of discovery: A. not only is access to business records but also data on home computers. B. all information archived electronically is available, but on other forms of discovery there are more regulations regarding which records are discoverable. C. the courts will establish a dollar limit for discovery of paper records which would be substantially more for electronic evidence. D. since judges, as a whole, do not understand electronic processes, they often allow “fis h ing expeditions” that would not be allowed with paper records. 6. One of the major problems with electronic data/evidence is A. that it is never complete. B. that it is so easy to access, records are more frequently tampered with. C. where it is stored. D. that it is all temporary records. 7. Data that can be seen or readily available as soon as the computer is booted up, is called A. internet messaging. B. wallpaper. C. active data. D. restorable data. 8. Data that has been deleted, created automatically by the computer operating system, or stored in disk fragments can contain important data. The process of recovering and analyzing this data is known as A. data investigation. B. drive reconstruction. C. computer forensics. D. data manipulation. 9. In most large companies, backup of electronic data files is usually the responsibility of A. the accounting department. B. the legal department. C. the information technology department (IT). D. the Vice President of Marketing. 10. Computer hard drives, magnetic tapes, USB drives, DVDs, and CDs, are all A. part of the entertainment industry primarily. B. storage media. C. areas that may not be accessed for discovery purposes without a court order. D. computerized data storage areas that are now obsolete, so are worthless for discovery. ANSWERS TO STUDY QUESTIONS 1A 2B 3C 4B 5A 6C 7C 8D 9C 10B 178 CHAPTER XIV - ELECTRONIC EVIDENCE (CONTINUED) REQUESTING E-EVIDENCE Obviously, requesting discovery of electronic evidence is different from requesting other forms of evidence. This can be rather complicated and technical in many respects, but it is not impossible by any stretch. However, there are certain steps that should be taken in order to obtain e-evidence, starting with the initial request. Rule 26 FRCP 26(A)(1)(B) states: “(a) Required Disclosures; Methods to Discover Additional Matter. (1) Initial Disclosures. (With certain exceptions or )…to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties: (B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment.” This is pretty well stated—all sources and locations of electronic data must be revealed to the litigators. Where such data can be located has been covered previously, except that data may be in the custody of other (third) parties, such as Internet service providers (AOL, MSN, etc.,) or on the computer systems of other entities that may be involved. It is very important that it is known how much data, what type and where it exists in order to have effective Rule 26(1) and Rule 16 conferences on the subjects of timing, form and limitations on discovery. At his point it may be well advised to have an experienced electronic discovery expert on the team. Conversely, it is necessary that the opposing party’s Rule 26 disclosures are enforced so as to determine exactly what other document requests will be needed later. Pre-Rule 16 Conferences FRCP Rule 16(a)(1) states in (applicable) part, that “In any action, the court may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference or conferences before trial for such purposes as: 1) expediting the disposition of the action; 2) establishing early and continuing control so that the case will not be protracted because of lack of management; 3) discouraging wasteful pretrial activities; 4) improving the quality of the trial through more thorough preparation; and 179 5) facilitating the settlement of the case.” This all-important meeting should be used by attorneys to discuss some of their own client’s electronic data in addition to obtaining good background about how the other parties are storing their e-data. It should be in the interest of both parties to arrive at agreement as to what protocols will be used for both parties to discover and produce electronic information. There are other subjects that could be discussed, such as the preservation of evidence and as to whether backup archival and “deleted” files will be exchanged. There should be a preliminary disclosure of each party’s computer systems by numbers, types, location, operating systems and backup schedules. Agreement should be sought as to processing of electronic documents and the later review of such documents, along with the production formats and protocols. The testimony of experts should be introduced, along with any evidentiary disputes that may arise—including the inadvertent waiver of privilege. If this sounds like it could evolve into a psychological tap-dance, that may be an accurate description, but that is what the attorneys are paid to do. If one attorney seems to be offering more data than expected, the motive needs to be explored as many times that is a good indication that they are going to go after more data than expected from the other side. The best prepared attorney for the conference is the one that is going to enter litigation better prepared and the best advice for this happening, is, again, obtain advice from an e-evidence expert. It could be more advantageous to have an expert present in order to provide the court and the parties with guidance as to the technicalities of obtaining, restoring, filtering, etc., electronic evidence. E-interrogatories From the information gained through the initial disclosures and the Rule 16 Conference (or similar state court methods for conferring with the other parties), it is time to consider interrogatory questions or written depositions aimed at obtaining information as to how the opponent manages electronic evidence so as to better understand their procedures, systems and policies. The following wording of interrogatories is an illustration that may or may not be applicable, but it pretty well provides the “gist” of interrogatories pertaining to e-evidence, etc. 1. Identify all email systems in use, including but not limited to: (a) List all email software and versions presently and previously used by you and the dates of use; (b) Identify all hardware that has been used or is currently in use as a server for the email system including its name; (c) Identify the specific type of hardware that was used as terminals into the email system (including home PCs, laptops, desktops, cell phones, personal digital assistants ["PDAs"], etc.) and its current location; (d) State how many users there have been on each email system (distinguish between past and current users); (e) State whether the email is encrypted in any way and list passwords for all users; 180 (f) Identify all users known to you who have generated email related to the subject matter of this litigation; (g) Identify all email known to you (including creation date, recipient(s) and sender) that relate to, reference or are relevant to the subject matter of this litigation. 2. Identify and describe each computer that has been, or is currently, in use by you or your employees (including desktop computers, PDAs, portable, laptop and notebook computers, cell phones, etc.), including but not limited to the following: (a) Computer type, brand and model number; (b) Computers that have been re-formatted, had the operating system reinstalled or been overwritten and identify the date of each event; (c) The current location of each computer identified in your response to this interrogatory; (d) The brand and version of all software, including operating system, private and customdeveloped applications, commercial applications and shareware for each computer identified; (e) The communications and connectivity for each computer, including but not limited to terminal-to-mainframe emulation, data download and/or upload capability to mainframe, and computer-to-computer connections via network, modem and/or direct connection; (f) All computers that have been used to store, receive or generate data related to the subject matter of this litigation. 3. As to each computer network, identify the following: (a) Brand and version number of the network operating system currently or previously in use (include dates of all upgrades); (b) Quantity and configuration of all network servers and workstations; (c) Person(s) (past and present including dates) responsible for the ongoing operations, maintenance, expansion, archiving and upkeep of the network; (d) Brand name and version number of all applications and other software residing on each network in use, including but not limited to electronic mail and applications. 4. Describe in detail all inter-connectivity between the computer system at [opposing party] in [office location] and the computer system at [opposing party # 2] in [office location # 2] including a description of the following: (a) All possible ways in which electronic data is shared between locations; (b) The method of transmission; (c) The type(s) of data transferred; (d) The names of all individuals possessing the capability for such transfer, including list and names of authorized outside users of [opposing party's] electronic mail system. (e) The individual responsible for supervising inter-connectivity. 5. As to data backups performed on all computer systems currently or previously in use, identify the following: (a) All procedures and devices used to back up the software and the data, including but not limited to name(s) of backup software used, the frequency of the backup process, and type of tape backup drives, including name and version number, type of media (i.e. DLT, 181 4mm, 8mm, AIT). State the capacity (bytes) and total amount of information (gigabytes) stored on each tape; (b) Describe the tape or backup rotation and explain how backup data is maintained and state whether the backups are full or incremental (attach a copy of all rotation schedules); (c) State whether backup storage media is kept off-site or on-site. Include the location of such backup and a description of the process for archiving and retrieving on-site media; (d) The individual(s) who conducts the backup and the individual who supervises this process; (e) Provide a detailed list of all backup sets, regardless of the magnetic media on which they reside, showing current location, custodian, date of backup, a description of backup content and a full inventory of all archives. 6. Identify all extra-routine backups applicable for any servers identified in response to these interrogatories, such as quarterly archival backup, yearly backup, etc. and identify the current location of any such backups. 7. For any server, workstation, laptop, or home PC that has been "wiped clean," defragmented, or reformatted such that you claim that the information on the hard drive is permanently destroyed, identify the following: (a) The date on which each drive was wiped, reformatted, or defragmented; (b) The method or program used (e.g., WipeDisk, WipeFile, Burnlt, Data Eraser, etc.). 8. Identify and attach any and all versions of document/data retention policies used by [opposing party] and identify documents or classes of documents that were subject to scheduled destruction. Attach copies of document destruction inventories/logs/schedules containing documents relevant to this action. Attach a copy of any disaster recovery plan. Also state: (a) The date, if any, of the suspension of this policy in toto or any aspect of said policy in response to this litigation; (b) A description by topic, creation date, user or bytes of any and all data that has been deleted or in any way destroyed after the commencement of this litigation. State whether the deletion or destruction of any data pursuant to said data retention policy occurred through automation or by user action; (c) Whether any company-wide instruction regarding the suspension of said data retention/ destruction policy occurred after or related to the commencement of this litigation and if so, identify the individual responsible for enforcing said suspension. 9. Identify any users who had backup systems in their PCs and describe the nature of the backup. 10. Identify the person(s) responsible for maintaining any schedule of redeployment or circulation of existing equipment and describe the system or process for redeployment. 11. Identify any data that has been deleted, physically destroyed, discarded, damaged (physically or logically), or overwritten, whether pursuant to a document retention policy or otherwise, since the commencement of this litigation. Specifically identify those documents that relate to or refer to the subject matter of the above referenced litigation. 12. Identify any user who has downloaded any files in excess of ten (10) megabytes on any computer identified above since the commencement of this litigation. 13. Identify and describe all backup tapes in your possession including: (a) Types and number of tapes in your possession (such as DLT, AIT, Mammoth, 4mm, 8mm); 182 (b) Capacity (bytes) and total amount of information (gigabytes) stored on each tape; (c) All tapes that have been re-initialized or overwritten since commencement of this litigation and state the date of said occurrence. Note: The above Sample Interrogatories are very similar to those contained in the ABA publication, Electronic Evidence and Discovery: What Every Lawyer Should Know. While the number of interrogatories is considerably less that the maximum under the Federal and State of Florida Rules, it is possible that if these were included with other applicable interrogatories that some of these questions may be challenged as two questions. Question 1 (e) is such an example. Regardless, this gives the reader an indication as to what is required for such interrogatories. There are many suggested interrogatories, including a list of electronic issues by Kenneth J, Withers of the Federal Judicial Center (Computer Based Discovery in Federal Civil Litigation“ Federal Courts Law Review, Oct. 2000) which is rather detailed but shows the types of information that could be obtained through interrogatories. Number, types and locations of computers currently in use; Number, types and locations of computers no longer in use, but relevant to the facts of the case; Operating system and application software currently in use; Operating system and application software no longer in use, but relevant to the facts of the case; Name and version of network operating system currently in use; Names and versions of network operating systems no longer in use, but relevant to the facts of the case; File-naming and location-saving conventions; Disk or tape labeling conventions; Backup and archival disk or tape inventories or schedules; Most likely locations of records relevant to the subject matter of the action; Backup rotation schedules and archiving procedures, including any backup programs in use at any relevant time; Electronic records management policies and procedures; Corporate policies regarding employee use of company computers and data; and Identities of all current and former personnel who had access to network administration, backup, archiving, or other system operations during any relevant time. Additional questions could pertain to the structure of their IT, including organizational charts and network configuration programs; password protection and encryption policies; use of data compression mechanisms (which could prove very important); details regarding e-mail as to size limitations, management, retention, etc. If presented properly, the response from the opponent to these interrogatories could (and should) provide a roadmap for the Rule 30(b)(6) deposition and Rule 34 document requests (or subpoena duces tecum, as discussed earlier). It cannot be stressed enough that this is as vital as the inquiry into the opponent’s data management and retention is absolutely necessary if attempts to obtain electronic evidence is to be 183 successful. Again, if the counsel does not have an idea early in the case, as to what data and information is possessed or under the control of the opponent, it will be extremely difficult to enforce any requests for production, plus that all relevant information has been produced. DEPOSITIONS OF INFORMATION TECHNOLOGY REPRESENTATIVES First, let’s start with the wording of FRCP Rule 30(b)(6): “A party may in the party's notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b) (6) does not preclude taking a deposition by any other procedure authorized in these rules.” The importance of this Rule is becomes apparent with the more experience one gains in requesting e-evidence. Normally, when asked for relevant data, the mid-level IT managers are the ones that seem to have the knowledge as to where and how to find the organization’s specified data. However, when this person is deposed if it becomes apparent that they cannot answer key questions, the counsel is able under this Rule to require the other party to produce another individual who is capable of answering questions completely and accurately. Those who use this e-evidence process often agree that, generally speaking, the internal IT professionals continue their professional attitude when called upon for these purposes. They usually exhibit an excellent knowledge of their profession and their employer’s computer systems. They are responsive to questions and take pride in their profession, often offering important information that was not specifically asked, and they are particularly cooperative. There are those who maintain that an IT manager in some respects, “lives in their own little world,” which consists of the computer section and other technology, and their prime loyalty is to their ability to provide information from their department, and not necessarily to their employer per se. In any event, if further information is needed from an IT manager, it often is forthcoming without asking for it specifically. This would indicate that these people are well-educated professionals usually, and if they are treated as such, they will cooperate fully. If, however, they are treated like “just another employee” they can make it much more difficult. If a deposition is in the offing that involved e-evidence, it is recommended that the counsel have his own IT or e-evidence expert on board, and as a general rule, it would be good to have them present at the deposition. Each of the opponent’s interrogatory responses should be carefully reviewed as they will serve as the basis for inquiry into the deposition. Experts also stress that during when the deposition is taken and the policies of handling electronic data has been established, the counsel should not just stop questioning as to the location 184 and identity of e-evidence, but the counsel should zero in as to what degree the company is actually complying with their own policies. These depositions should lay the groundwork for determining a plan as to how to receive the data, how to process it, and how to review the data produced by the opponent. PRODUCTION OF DOCUMENTS AND ONSITE INSPECTIONS Again, reference to the particular rule regarding producing documents and conducting onsite inspections, Rule 34(a) is quoted as to its relevant parts: “Rule 34. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes (a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).” REQUESTING DOCUMENTS There are many specific areas and issues that must be taken into consideration when requesting the production of electronic documents. The expertise of an IT or e-evidence expert should be acquired as they would be aware of any recent technology that could affect the gathering of the necessary evidence. Some of the basic areas that should be considered are: Proportionality This is probably the most important area as the requests should cover all of the electronic evidence needed, but at the same time it cannot be so broad that it could result in legitimate objections, both in the burden of having to obtain the information and also the expense of gathering it. Keywords As anyone knows who has ever used the Internet, requests for information can be more efficiently obtained by using keywords or phrases for the search in documents. Also, the data locations or the types of media in which they appear, the names of individuals who are of interest, or even the exact date ranges can further restrict the area of search. Location of Data As discussed earlier, the data can be located in various locations, so potential locations must be searched as well. 185 Drafts and Versions of Documents In order to obtain relevant information, any prior versions and/drafts of files for documents should be requested to make sure that relevant information that is in multiple draft documents is obtained. Unique Files Necessary information could be located within a spreadsheet, so any information that originates in electronic formats must be requested, as well as any other format that could contain information that is otherwise not available on the face of the documents, including database files. Preferred Format The format that is preferred for the production of the information should be specified. This could include .tiff or .pdf images, and any other format necessary for documentation. Forensic Search for Deleted Files In some cases it might be necessary in order to facilitate a forensic review for files that have been deleted. This is an area where technical expertise is needed, as this could even require the appointment of a third party neutral expert to implement the production and review of this data because of privilege and relevance possible objections. Copy of Data Retention Policies An actual copy of the electronic information retention policy of the opponent should be obtained so that it can be compared to that which was learned in the deposition of the IT personnel. Courts require that any Rule 34 document be narrow in scope and defined very closely and accurately. If a party seeks “all relevant electronic documents,” or words to that effect, the courts have no hesitation in requiring a narrower requirement. There is substantial case law to support such objections. ONSITE INSPECTIONS Onsite inspections can be very useful in many instances. Some organizations have data stored in proprietary computer systems which makes the retrieval of information particularly difficult—indeed, that is often the reason that information is stored in proprietary systems. It is going to take more than just a Rule 34 request to get necessary data in many situations as a database is a grouping of data and not series of actual documents. The best way to obtain access to database information is to inspect the database itself, onsite, with, of course, a qualified database expert who can make the proper queries so as to identify the relevant data, and as importantly, to extract it is usable format. Usually the court or the parties involved, will establish protocols for such an inspection in order to protect non-responsive, privileged and/or proprietary information. There is an actual instance of a large corporation defendant having a version of a computer database which the plaintiff, a business competitor who believed that there was relevant and discoverable information on the old database, wanted to search for discoverable information. An electronic expert retained by the defendant testified that the database was no longer accessible because it was not in use any longer and they knew of no one who knew how or had the technol- 186 ogy to make the data available. The plaintiff retained another firm that specializes in situations of this type, and after an onside inspection, discoverable information was recovered. ENFORCING COMPLIANCE Sometimes a party may not perform a complete and good faith search for electronic documents and if there is any basis to the argument that the opponent is not complying in good faith, there have been numerous court decisions that support the motion to compel. Sanctions have been approved by courts in those situations also. STUDY QUESTIONS 1. Requesting discovery of electronic evidence is A. identical to requesting discovery of other forms data and evidence. B. different from requesting other forms of evidence. C. something that must be done only if the client has adequate funds and the value of the case is large. D. accomplished only through court order of certain adjudicators who are specially appointed as it is highly technical. 2. A party to a lawsuit has electronic data stored on computer hard drives, magnetic tapes used for frequent backup procedures, internet service providers, on computer systems of other companies under the same ownership, and on computer systems on other unrelated entities. The other party requests discovery on data on all of these systems, A. and they all can be sources and locations of electronic data that must be revealed to the litigators. B. but data on computer systems of other companies or unrelated entities, are not subject to discovery. C. but only e-data stored on computer hard drives may be subject to discovery. D. but because of the costs involved, only data stored on computer hard drives and magnetic tapes are subject to discovery. 3. FRCP rules 16(a)(1) states that a court can require attorneys for the parties and any unrepresented parties, to appear before the court for the purpose of A. getting to know each other by first name so the trial will not be acrimonious. B. letting everyone know the rules as set forth by the judge, not only for trial but for all steps of discovery. C. conferences to expedite the disposition of the action, establishing early control, discouraging wasteful pretrial services, improving the quality of the trial and facilitating the settlement of the case. D. placing limitations on all forms of discovery, but most importantly, on e-data. 187 4. The pre-trial conferences should be used by attorneys to find out how the other party stores their electronic data, and A. make sure that the opponents don’t have any idea as to how his client stores e-data.. B. to threaten and intimidate the opposing attorneys until reined in by the judge. C. otherwise, such conferences are all for show and to make the judge feel good. D. to discuss some of their own client’s electronic data so that protocols can be established for both parties to discover and produce electronic information. 5. From the information gained at the pre-trial (e.g. Rule 16) conference, the next step would be A. to consider interrogatory questions or written depositions to discover how the opponent manages electronic evidence. B. to depose the IT people employed by the opposing party. C. to ask for a Summary Judgment. D. to automatically ask for sanctions against the opposing counsel. 6. An interrogatory that asks for the identification of e-mail systems in use by the opponent, would ask for the identification of several systems, including A. e-mail software and versions of e-mail presently and previously used by the opponent and dates of use. B. the passwords of all employees on their home computers. C. a complete listing of all e-mails sent and received by all employees during and after working hours. D. bank ID numbers of all employees that use e-mail bank services to cash their checks. 7. When there are more than one business location of computer data, the interrogatory should ask A. for personal data on all employees that use the computers, including personal passwords and screen names. B. only for the data at the principal location. C. how is data shared between locations, method of transmission and types of data transferred, and names of those that are responsible and who have the ability to transfer data. D. for a court order freezing all records at all locations until discovery has been completed. 8. If the interrogatories are presented properly A. the opposing counsel will be all upset because too much detail has been furnished, making his job a lot harder. B. they will receive answers to all interrogatories that are satisfactory and complete. C. the response from the opponent could provide a map for depositions and document requests. D. the response would automatically call for retaining an electronic evidence expert, and/ or electronic forensic expert. 188 9. When asked for relevant electronic data from an opponent, the ones that seem to have this knowledge as to where and how to find an organization’ specified data, would be A. the Comptroller. B. the financial officer. C. mid-level IT managers. D. Vice Presidents of Technology. 10. Courts require that any Rule 34 document be A. narrow in scope and defined very closely and accurately. B. defined in general terms so as to be as close to all-inclusive as possible. C. broad and refer only to items in the general sense. D. approved by an electronic data expert hired by the court. ANSWERS TO STUDY QUESTIONS 1B 2A 3C 4D 5A 6A 7C 8C 9C 10A 189 CHAPTER XV - RESPONDING TO REQUESTS FOR E-EVIDENCE Usually, if a party makes a request for discovery, they will need to respond to a discovery request at some time during the lawsuit—of course. Therefore, there should be some discussion as to what to do when the shoe is on the other foot. So another visit to the Federal Rules of Civil Procedure (26)(b)(2)(i),(ii) and (iii) : “(2) Limitations. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36. The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. …” The primary part of this Rule is that of proportionality considerations as in (i), (ii), & (iii). REQUESTS LIMITED DUE TO PROPORTIONALITY RULES This was earlier discussed in Chapter XIII in respects to rules for requesting discovery. This section looks at situations where it is necessary to respond to such requests. The rule provides that discovery may be limited to the extent that it is unreasonably cumulative, duplicative or obtainable from another source and was briefly discussed in a previous Chapter.. Parties have often responded to requests for electronic documents by arguing that the request for their documents in electronic format is cumulative to the request for paper documents. However, this argument has failed, particularly in recent years. One does not have to know much about computer-generated documents to understand that those created by electronic means contain specific (metadata) information related to who created the documents, when they were created, when they were saved and when they were modified, in addition to whom they were sent. This type of information is obtained only in electronicallycreated formats, therefore the argument that evidence produced in paper format is sufficient, usually fails. Conversely, one may successfully argue that information furnished in a format that is the most convenient to the sender, therefore this information should not be required to produce in other electronic formats. As discussed earlier, electronic documents—and in particular, e-mail messages—contain a degree of candor not usually found in other documents. Therefore, if one argues that the other 190 party has had ample opportunity to obtain information may fail, particularly if this argument is used to defeat the production of electronic records as they are so different and unique. The most important part of this Rule and the one that is most often argued, is 26(b)(2)(iii) which is important enough to be repeated: … “the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the i mportance of the proposed discovery in resolving the issues. …” Anyone who has ever been i nvolved in electronic record productions knows that the party(s) that worded this part of the Rule, “knew whereof he spoke.” The production of these records is burdensome and expensive and difficult to do in many, many situations. Therefore, an objection based on those objections has the most chance of succeeding, particularly if couched in wording of this subtext. On the flip side, blanket objections using burden and expense have not been very successful in stopping the discovery of electronic records, and are becoming truer as the courts, the attorneys and many oft-litigated companies, become more educated in electronic discovery. This does not mean that this objection will always fail—as it has succeeded in several cases— but it does mean that any objection must be supported by an accurate and credible demonstration as to how that request causes undue burden or expense. If the request is to be contested based on burden or expense, it would be suggested strongly that the expertise of an electronic record production expert be obtained so as to provide an affidavit (or testimony, if needed) as to the extent of the burden and expense associated with that particular request. Everything must be sheathed in facts, with concrete and factual data to su pport its position. As an example, there are certain statements that must be addressed for any hope of success, including: The type of e-mail program or package that is used by the executives and the tools that are available to access that e-mail; If archival media, such as backup tapes, are to be accessed, the expert must address the amount of time that will be necessary to restore each of the backup tapes and a calculation as to the number of backup tapes that will have to be restored in order to gain access to the relevant e-mail; The expert should specify the structure of the data on the backup tapes or media during the time period at issue in the case, and if the time period required would involve several tapes, then each tape must be addressed in time and effort required to restore those tape individually, along with any other technical problems foreseen, such as having to use different servers at different locations, etc.; The expert should state specifically whether any keyword terms will be used to help extract information relevant to the case; The expert should provide an accounting of the costs of the production based upon the expertise of the expert. This way, the party can rely upon these expert’s statements in order to make recommendations to the court and other parties, regarding specific limitations on the duty to produce the records. 191 In the discussion of relevancy earlier, mention was made of a personal injury lawsuit against Wal-Mart. This case is also often quoted in the context of limitations on the duty to produce specific records. In this case (Ex Parte Wal-mart, Inc., 809 So. 2d, 818 [Ala. 2001]), The plaintiff was struck by a falling television set at a Wal-Mart store and he requested that Wal-Mart produce a large assortment of electronic documents from its corporate database. Wal-Mart objected on the grounds that the request was overly broad, unduly burdensome and not relevant to the case, but the plaintiff moved the court to an order requiring Wal-Mart to produce the documents and answer the questions. The court ordered Wal-Mart to produce all of its customer incident reports and employee accident review forms, limiting such production to stores within Alabama and for a five-year period prior to the incident. Wal-Mart opposed this order at trial court and appellate courts, and appealed to the Alabama State Supreme Court which upheld the trial judge and agreed that it was appropriate within the context of the e-document production to impose these geographic and time limitations. In addition, it has also been recommended that such matters as the needs of the case itself, the amount in controversy, the resources of the parties, and the importance of the issues, be specifically argued. Recent court decisions would indicate that these matters be so addressed. DATA SAMPLING When a client is faced with a request for production of electronic records that seems too allinclusive, often it will work to the advantage of the client to produce a sample of representative electronic data for review by the court. That way the court can better determine if more data should be produced. In this area of data sampling, experts often reviewing one case in particular, McPeek v. Ashcroft, 202 FRD 31 (DC 2001). This case involved a Department of Justice employee (McPeek) who alleged discrimination while employed by the Department. During the suit, the plaintiff requested e-mail and other electronic documents be produced from backup tapes of the Department’s e-mail system. The court stated, in part: “Using traditional search methods to locate paper records in a digital world present unique problems. In a traditional “paper” case, the producing party searches where she thinks appropriate for the documents requested under Fed.R.Civ.P.34. She is aided by the fact that files are traditionally organized by subject or chronology…, such as all the files of a particular person, independent of subject. Backup tapes are by their nature indiscriminate. They capture all information at a given time and from a given server but do not catalogue it by subject matter.” As anyone who has the slightest knowledge of backup tapes can testify, data storage on backup tapes is stored randomly, and this can do nothing but cause trouble. If there are several time periods and/or multiple locations, then tapes from each must be searched for relevant email, even if it is for a specific person and time. In order to balance out the needs of the e-mail information that may exist in e-mail form on the backup tapes, with the expenses of the case, the court in this case ordered data sampling protocol by ordering the Department to perform a backup restoration of e-mails attributable to a specific Department individual during a specific time period (July 1 1998 to July 1, 1999). The Department had to pay for the restoration of the back- 192 up tapes necessary to retrieve information for the sample, and then the Department was ordered to search and produce the sample data for e-mails that were responsive to the plaintiff’s request. The court rules that the Department “carefully document the time and money spend on doing the search” and also document the results of the search. When this was accomplished, the court allowed the parties a chance to argue why the results did, or did not, justify a further search for email evidence. In a later opinion (McPeek II) the court analyzed the arguments of both parties relating to the production of additional e-mail evidence following the evaluation of the sample, particularly as to how they related to the case. The court ordered the search and production of some information and denied the plaintiff’s request for search and production of other information. Other courts have expanded upon the protocols discussed in McPeek and in two cases employing data sampling, it was indicated that data sampling is an important tool at the counsel’s disposal in responding to electronic records. The appropriate procedure can be gleaned from some of these cases. The first thing is that the issues in the case should be translated into appropriate technology tasks that can be accomplished—backing up file restoration for specific persons, times and topics. Then these results should be used to plead on behalf of the client concerning the scope of any additional search and production. SPOLIATION Spoliation (the intentional destruction of data) of data, if not properly handled, could create a sanction problem as attorneys are noted for “setting up” a spoliation issue. When responding to requests for data, it is important to determine whether the party requesting the data has sought that particular information with the intention of establishing if the opposing party has not retained or preserved all e-evidence that is relevant. When responding to requests, counsel would be well-advised to limit the discussion and production to those individuals, time periods, dates and matters that are relevant so as to make sure that the client’s duty to avoid spoliation is limited to only that data that is actually discoverable. It is a little disconcerting to note that there have been several cases that have turned on sanctions issued for negligent or intentional spoliation or electronic records, and in some of these cases, the sanctions were issued regardless if the data on those tapes would ultimately have contained discovery information. The textbooks are full of recent instances where an organization does exactly what it should not do. Newspapers and television headlined stories of companies that instructed their employees to destroy electronic files. Two of the more famous was where JP Morgan and employees of other banks sent thousands of e-mails, saying in effect, “Say nothing and destroy this e-mail.” In late December, 2000, according to the Cincinnati Post, hundreds of workers in Credit Suisse First Boston’s technology group, were e-mailed “We strongly suggest that before you leave for the holidays, you should catch up on file cleaning.” 193 File cleanup should not be a once-a-year thing, but should be done regularly and there should (read “must”) be an e-mail retention and deletion policy. Companies are slow to learn, however, as a 2003 poll showed that only 34% of U.S. companies that were polled, have any such policy in place. The subject of Retention and preservation is addressed later. WAIVER OF PRIVILEGE First, it must be acknowledged that it is nearly impossible for an attorney to review every single piece of paper in a large-scale document review in order to determine if any of it is privileged. But if there are a number of reviewers involved, there will in all likelihood be difference of opinion as to what is privileged. It doesn’t even need the effects of Murphy’s law for a privileged document to slip through the cracks. Depending upon the jurisdiction, the attorney-client privilege or the work product doctrine can be waived if a party voluntarily discloses the confidential matter to a third person, whether they meant to or not, through actions that were not consistent with reasonable maintenance of confidentiality. If that happens, it can be a lot more disastrous than a “Darn, how did I miss that one?” To start, if a document is returned to the party that produced the document, it is highly probable that the document has been seen by the opposing party and the information that they saw cannot be later retracted, even if the court orders a disregard of the contents. Then, to make it worse, if a court determines that a waiver of confidentiality or work product has occurred, this information/work product may be used in any other context during litigation, and sometimes, even in other proceedings. Probably the worse thing that could happen is that (in some jurisdictions) all documents that pertain to the subject matter that was disclosed will have the waiver extended to include those documents also. This could sink a lawsuit dead in its tracks. If it can be determined that a lawyer has been negligent and the negligence caused the waiver of privilege, the client can probably sue the lawyer. The approach to inadvertent waiver basically is that nearly any disclosure of the communication or document, even if it is inadvertent, waives the privilege, such position taken by the D.C. Circuit court. A minority of courts ruled that the unintentional disclosure does not waive the privilege. However, there is a “balancing” test that is used to determine whether waiver has occurred. (Simon Property Group L.P. v. mySimon, Inc., 194 FRD 639 [S.D. Ind. 2000]) This is based upon the following five factors: 1. How reasonable are the precautions taken to prevent inadvertent disclosure? 2. How long has it taken to rectify the mistake? 3. The scope of the discovery; 4. The extent of the disclosures; and 5. Overriding issues of fairness. 194 TECHNIQUES TO MINIMIZE PROBABILITY OF INADVERTENT WAIVER There are a plethora of techniques and tactics to help minimize the effects of an inadvertent disclosure. It is generally conceded that the first thing that one should do would be to act “proactively” which means to obtain an advance agreement with the opposing counsel regarding any inadvertent disclosure, which would include an agreement that the inadvertent disclosure of a privileged document does not constitute a waiver of privilege. Further, the agreement could read that if this happens, the privileged document will either be returned or there will be a certification that the document has been destroyed, along with any notes or copies. If at all possible, this agreement should be reached prior to production of any documents. Another tool would be to closely scrutinize the scope of the requests for discovery and the potential production to determine if there is any way to limit the production by objection or agreement, particularly where there are substantial electronic files. The question could be whether it is necessary for there to be a complete review and production of the files, weighed against the costs and the burden. And, as always, look for “reasonableness.” Reasonableness can be shown by how well review and production systems are organized, and are the methods of reviewing documents satisfactory to identify and to claim privilege? How well is the production reviewed before submission and is the review well organized and complete? This is where an electronics discovery consultant and/or expert in this field, become invaluable. Even if there has been an agreement of “no waiver,” it is still possible for the court to find that the inadvertent production of privileged documents was so inexcusable that waiver is appropriate. For instance, in the well-publicized Bridgestone/Firestone products liability case, in 2001, the court stated that if the document was produced once inadvertently, that is one thing; to produce it again while at the same time in court maintaining that it was necessary to keep it confidential, was something else altogether. The failure to maintain the confidentiality of the document after it was once inadvertently produced, was inexcusable and “constituted a waiver of any privilege that may have originally attached to the document.” Another case regarding loss of confidentiality, involved an e-mail. As anyone who has ever sent an e-mail to an address that was not correct (and who hasn’t?) is aware that when that happens, the e-mail is returned with a notation as to why it is not deliverable (wrong address). Then later, the e-mail is submitted to the correct address. How many times were the contents of that email revealed? (two times, of course). This happened in a case where the defendant waived the attorney-client privilege by voluntarily producing the contents of an e-mail, where there were two copies of the e-mail in question existing on the defendant’s backup tapes. These two copies, (guess what!) were attached to the e-mail sent to the administrator saying that the e-mail was not deliverable because the address was wrong, and the other copy was the same e-mail sent to the correct address. If an electronic discovery expert is employed, this can greatly reduce the possibilities of inadvertent disclosure as they can segregate any potential privileged data for review. That way, the person reviewing the data is warned that certain documents may be privileged. There is no big secret as to how this is done, “keywords” are used—such as “privileged,” “confidential,” — and the setting out of data that is created or received by a particular counsel or attorney, either by 195 name or position. The goal of this technology is not to exactly determine through some weird scientific magic all of the documents that are privileged, but the purpose is to avoid inadvertent disclosure that due to inattention to detail or just, plain, fatigue from looking at a jillion files. A good defense is the best offense—so develop some kind of plan just in case that a person or computer makes a mistake and a privileged document has been inadvertently produced. Included in the plan should be notification of the clients as to the risks involved so that there are no surprises in case of an inadvertent waiver, and make sure that they have some understanding of the attorney-client privilege and how it can be waived. TACTICS TO INSURE E-EVIDENCE IS PRESERVED Prior to discovery, or at least before substantial discovery has occurred, tactics to make sure that all electronic evidence relevant to the litigation is property preserved. This should happen early in the litigation. Certain steps can be taken to help preserve e-evidence: One of the first steps would be to seek a court order so as to preserve the opponent’s data. In some situations, these orders can be maintained on an ex-parte basis. Care should be taken when requesting electronic data to make the request armed with the exact dates, places and individuals. The request should also describe the topics to the court. By doing this, the request will more than likely to be considered as reasonable—and we all know how important that is. Courts have shown that they usually do not grant requests that are too broad or that do not define the data than can be separated by the opponent. There often is a problem when records are sought of an ongoing business as there has to be some demarcation of discoverable records and records necessary for the everyday transaction of business. Therefore, when advising a client as to the proper method of preserving relevant electronic evidence, the counsel should consider obtaining a court order from the court which defines the scope of the duty of the client to preserve records. Keep in mind, however, that in most cases the court will be looking for suggestions as to the dates of the records, a list of edocuments, custodians and also the counsel should provide a list of keywords in order to narrow the duty to preserve. At this early stage of litigation, the parties may start stipulations and negotiations with the other party which concern the scope of both parties’ retention of documents. These stipulations, as with other references to data, should be as specific as possible in respect to the range of dates, the individuals &/or organizations/groups that are engaged in the litigation. These stipulations should help set up guidelines for the preservation of e-evidence without any unnecessary interruption of the business. And at this early stage, this is a good time for the parties to think about appointing a third-party neutral electronic evidence expert. Such an expert can help the parties define methods and systems and procedures for retaining, preserving, collecting, processing, reviewing and production of necessary electronic documents. 196 RETENTION As mentioned earlier, companies must have an electronic document retention policy which is designed specifically for the needs of the company. This policy should show a systematic review and retention, and eventual destruction of electronic documents created during the course of business. Most of the retention policy should address how to determine retention periods and the schedule for destruction and the procedures for retaining necessary documentation. The first step should be an inventory of electronic equipment and data, showing all hardware and software in use throughout the company (including PDAs, laptops, etc.), the location of stored documents and the formats used in the storing of archived electronic data, and details as how data can be transferred into and out of the company. This should provide the outline for the document retention policy. Business records should be classified for identification purposes, as different types of business records have different purposes and different useful life periods. After the useful life period has been completed, then the document should be destroyed and recorded in a “destroyed records” log book. In determining the retention periods for documents, it must be kept in mind that some documents, such as tax returns, SEC filings, etc., have state or federal retention requirements, which can vary by jurisdiction and by company. The other standard is based upon “reasonableness.” This is determined as to what is reasonable based upon the company’s business practices, industry standards, and in some cases, statutes of limitations. It should be recognized that all categories of data do not have to be treated equal. E-mails regarding tax matters would have a longer retention period than e-mails confirming hotel reservations at conventions. On the other hand, financial documents and legal documents may be permanently preserved, depending upon their subject matter. As a general rule, the majority of business records can be retained anywhere from one to five years. If in doubt, always chose the longer period. For the larger organizations, there should be a records custodian for every department appointed. There should be a table of organization for records custodians showing who is responsible for establishing, developing and enforcing record management policies. Also, there should be a discovery response team in case of pending or possible litigation, which should be able to act quickly and have the authority to alter any document retention policy in case of an emergency and to make sure that records have complied with preservation policies. PENALTIES/SANCTIONS FOR SPOLIATION Suffice it to say that penalties and sanctions for parties who have committed e-document spoliation are severe—whether intentional or accidental. Some of the sanctions were default judgments, monetary sanctions, jury instructions and inferences by the court which were not helpful, to say the least. The most severe sanction is considered to be that of default judgment. In one case, often quoted in this respect, an electronic document preservation order was issued by the court. Executives of the company directed employees to continue with backup tape recycling 197 procedures, telling the employees that this was permissible under the order. The court did not agree and they ordered a default judgment against the party and in addition, they fined the executive who issued the destruction memo, $450,000. What is interesting about this case is (1) it is not an “isolated incident,” and (2) the courts do not allow an “oops factor.” Actually, there have been cases dating back to the early 1980s regarding sanctions for destruction of documents that occurred in 1979, for instance. This shows that this is not something new and parties should sit up and take notice. One of the most talked-about and oft-quoted cases involving such sanctions (Linnen v. A.H. Robins Co., 1999 WL 462015 [Mass. Super. June 16, 1999]) involved a product liability case with diet drug Phen-Fen, where the plaintiff took the drug to lose weight and then died and the relatives sued the manufacturer of the drug (Robins). As regards spoliation, they issued an edocument preservation order which clearly defined the scope of Robins’ duty to preserve relevant e-mail. Robin did produce a large volume of e-mail to the plaintiffs, a small amount (subset) of e-mail was destroyed as part of a backup tape recycling procedure according to the defendant. The court seemed irate, ordering an “inexcusable conduct instruction be given to the jury,” plus the court allowed the plaintiff’s counsel to reference the destruction of the documents in detail at his opening statement. Naturally, the counsel strongly suggested that the destruction of the documents destroyed crucial evidence, so such evidence was not available—thanks to the actions of the defendant. Result: rapid settlement for one of the largest personal injury awards in Massachusetts’s state history. Courts do not look with favor upon attorneys who do not advise their clients about their discovery obligations. In another case where a union was the defendant, their counsel did not give the union adequate instructions about their obligation, plus they knew that the union did not have a document retention or filing systems (?) and the union never implemented such a program for producing documents or for the retention of documents, paper or electronic. The person that the union delegated to produce the documents to did not understand that a document included a draft or other such copy, a computer file or an e-mail (the court took special notice that this person was not instructed by counsel). Further, the counsel never returned to the layperson that was designated to assure that he had established a “coherent and effective system to faithfully and effectively respond to discovery requests.” Then, to top it all off, (are you ready for this?) when the plaintiff’s counsel questioned and showed that the production was faulty and incomplete, the union’s counsel ridiculed the inquiries; completely failed to take any action whatsoever to remedy the situation or to supplement the false responses. And, the union’s counsel failed to ask important witnesses for documents until the night before their depositions and instead, “made repeated, baseless representations that all documents had been produced.” Oh yes, the court granted sanctions, finding liability on the part of the defendants and ordered the defendants to pay plaintiff’s attorneys’ fees that accumulated because of the discovery abuse by the defendants and their counsel. One may wonder at the severity of the sanctions, but the court found that lesser sanctions would not be effective because it was impossible to know what the plaintiff would have found if the defendant and its counsel had complied with their discovery obligations from the beginning of the litigation. 198 Perhaps it is repeating the obvious, but consider that the effect of destroying electronic evidence or not providing the electronic evidence as ordered by a court, is tantamount to (a lawyer) taking evidence necessary for proper adjudication, throwing gasoline on it and setting it on fire; and at the same time, thumbing his nose at the judge. HOW TO AVOID SANCTION FOR DESTROYING E-EVIDENCE? Anyone (at least anyone paying attention) who learns of the multitude of sanctions that have been granted by the courts for destruction of electronic evidence, if they do not already know, must wonder how in the world can someone avoid sanctions, especially since the sanctions apply whether the documents have been destroyed on purpose or accidentally? The easy answer is, of course, learning all that you can about electronic discovery, research the cases, hire an expert. Assuming that all of these have been accomplished, then there are some actions recommended by experts in this field that may be of value if and when the situation arises in the future. Experts agree that the first step would be to obtain an order from the court that defines the scope of the client’s duties to preserve the electronic documents, as discussed earlier. The next step would be to suspend, or instruct the client to suspend any policy that regularly destroys or overwrites or otherwise deletes such data. The mere instruction to client’s executives to suspend such policies to destroy, overwrite or delete data is not enough! It is the duty of the counsel to take every step possible to make certain that the leadership within the client’s organization understands the suspension of these policies and that the destruction of documents has ceased. Attorneys representing organizations with backup and retention/destruction policies often do not hesitate to personally instruct every employee that is involved in such policies that such actions must cease, and to take steps to monitor the files so that there is no “accidental” destruction of records. As part of the education of the attorney, all the current case decisions and statutes on the topic of e-evidence preservation are researched, and he should remain up-to-date on any developments in this field. If the client has an in-house attorney, meet with him and the executives, and in particular, data management personnel, to discuss in detail exactly what these procedures are under the law as it applies to them. The time for generalities is past, now it is time for the “nitty-gritty.” Oversee the delegation of duties in preserving documentation—usually it not good practice to personally instruct every person in the records section (or whatever it is called by the firm) that would have anything to do with preserving records, unless, of course, the counsel is intimately involved in the company and he normally interfaces with these employees. However, the executives must fully understand what is required and the ramifications of non-compliance. 199 There is another technical step that may be taken when individual hard drives are, or can be, at issue in a suit, that of mirroring, or mirror-imaging the data. This is a procedure (technology) that simply reproduces the documentation in its entirely, exactly as how it is saved, and using the same programs as the original data. For instance, if a file was in a .doc format (such as from Microsoft Word), one would not want to copy it into Word Perfect format. Many legal and technical documents are in .pdf format, which takes a “photo” of the document but it cannot be changed unless it is saved in another format…anyway, that is why a tech expert is necessary. COST OF ELECTRONIC INVESTIGATION More so than with “paper” discovery, electronic discovery can be quite costly, therefore one would understand why some of the more forceful and opinionated arguments are in determining who should pay the cost of electronic discovery. Actually, courts have so noticed this and one judge in 2003 stated in essence that since the more information there is to discover, the more expensive it is to discover all the relevant information, until discovery is not just about uncovering the truth, but how much of the truth the parties can afford. According to case law, there are three methods of determining cost. Traditional Rule Each side bears its own costs traditionally, which is based upon FRCP 34(a) and Florida 1.280(b)(1), which in essence states “one party can serve on another party a request to produce any tangible thing which fall within the scope” of (FRCP 26(b) or Florida 1.280(b)(3). The rules designated that “A party who produced documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.” Therefore, based upon these wordings, the traditional cost allocation is that any costs associated with reviewing documents (for responsiveness or privilege) and then organizing, printing and shipping them for production are costs that should be borne by the producing party. These rules limit the data to that generated by the producing party to things that are in its possession, custody or control in the ordinary course of business. Since producing parties cannot be forced to bear the cost of anything outside their possession, some attorneys have advocated that electronic documents, files and e-mails that have been deleted, archived or are just too much of a burden to produce, are not within their “possession” and should not have to be produced. This has not been well accepted by the courts who have maintained that a court will not shift the burden of discovery onto the discovering party where the costliness of the discovery procedure involved is entirely a product of the defendant’s record keeping “scheme” (words of a court) over which the plaintiff has no control. If one party wants to keep records in a relatively inaccessible place, or format, then that party must bear the financial consequences of producing any pertinent relevant data that is contained in those files. There have been several court decisions to this affect. If it were otherwise, a business could hide all of their files from the court, making discovery impossible. 200 Cost Shifting The FRCP 26 provides a chance to shift costs to protect the party from “undue burden or expense.” (Florida Rules 1.280(b)(3) “…the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” A little different but the courts seem to consider it as the equivalent of FRCP 26.) In respect to cost-shifting with electronic evidence, the US Supreme Court wrote in 1982, “We do not think a defendant should be penalized for not maintaining his records in the form most convenient to some potential future litigants whose identity and perceived needs could not have been anticipated.” (Oppenheimer Fund, Inc. v. Sanders, 437 US 340 [1982]). The Court stressed that the expense of creating computer programs that would locate the data that was requested was the same for both parties, and ultimately ordered that the party that was seeking the information must bear the cost of the production. In 1996, the court addressed the issue again and stated that since the admissibility of the electronic evidence in question was still undecided, then the requesting party should pay half of the costs of production that was incurred by the producing party. This seems to indicate that the court was concerned with the utility of the evidence and the cost in obtaining it. This “proportionality” test allows a court to shift the costs when it deems the expense burden on the party producing the evidence is too great relative to the potential value derived from the evidence. Balancing Test The most recent decisions have created a cost-shifting approach that mandates that several different and separate factors must be used when determining the cost allocation of electronic data. There are two cases in this area that are often used and quoted, one which uses an 8-factor approach (Rowe) and the other (Zubulake) uses a 7-factor approach. In Rowe Entertainment, Inc. v. The William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002), the court acknowledged the tradition rule in discovery that the producing party must bear the costs, but pointed out that even though this rule is “unassailable” for paper records, it “does not translate well into the realm of electronic data. They maintained that the basic assumption is that the party that retains the information does so because that information is useful to it and it is willing to bear the costs of retaining the information. Therefore, that party can be expected to locate specified data whether such data is needed for its own use or in response to a discovery request. But with electronic data, the situation is not the same as the costs of storing electronic data is nearly non-existent, as that data is retained because there is no reason to discard it, and not because it is expected to be used. Even if the data is kept for some purpose, “it is not necessarily amenable to discovery.” Therefore, the court held that the eight factors that would determine who would pay for electronic discovery are: 1) the specificity of the discovery requests—on the basis as the less specific it is, the more appropriate it is to shift the costs; 2) the possibility of discovering information that is critical—the more likely it is the critical information will be found, the fairer it is to force a producing party to pay; 201 3) the purposes for which the responding party maintains the requested data—if it keeps its data so that it can currently be used, then it is fair to make them pay for its production in litigation; 4) the relative benefit to the parties of obtaining the information—if the responding party benefits from the production, then there is less of a reason to shift costs; 5) the total of the cost of production—if the total cost of the requested discovery is not rather substantial, then there is no reason to change the presumption that the responding party will bear the costs; 6) the relative ability of each party to control the costs and its incentive to do so—if the process of discovery is going to increase then the burden should be on the party who will make the decision as to how much the expansion of discovery data will be; 7) the resources that are available to each party—the ability of each party to pay for the costs of discovery; 8) The availability of the information from other sources—if equivalent information can be obtained from another source, then the party that requested the electronic production, should pay. This “Rowe” decision provides the guidelines followed by the courts in determining the cost of electronic discovery, but in the minds of some jurists, it needed “tweaking.” Therefore, the judge in the Zubulake case (Zubulake v. UBS Warburg, 217 F.R.D. 309 [S.D.N.Y.]) eliminated one of the factors, combined two other factors, and added a new one: 1) the extent to which the request is specifically tailored to discover relevant information; 2) the availability of the information from other sources; 3) the total cost of production as compared to the amount in controversy; 4) the total cost of production as compared to resources available to each party; 5) the relative ability of each party to control costs and its incentive to do so; 6) the importance of the issue at stake in the litigation; and 7) the relative benefits to the parties of obtaining the information. One of the big differences is that in the Zubulake case, the judge was of the opinion that each of the factors should not be treated equally, in other words, it is not to be treated like a “checklist.” These factors should be weighed in decreasing order of importance, with the first two factors being the most important. It is not unreasonable to ask why judges are so engrossed in trying to determine the best way to pay for electronic evidence. Basically, it is because most judges are under the impression that it is costly to conduct electronic discovery, added with the relative unfamiliarity most courts have with electronic evidence. Some of this is the fault of the attorneys who have not really done a good job in most cases of using experts to educate the judges as to the technical issues that are involved. Another factor is that in the minds of some, electronic discovery is somewhat of a “luxury” that the requesting party should not enjoy without some responsibility for paying for some of it. 202 But regardless of the reason, attorneys must be prepared to address the cost allocation for electronic records. The judge in the Zubulake case stated that “Electronic evidence is frequently cheaper and easier than paper evidence because it can be searched automatically, key words can be run for privilege checks, and the production can be made in electronic form obviating the need for mass photocopying.” A much more well-versed view of the cost involved, but time alone will determine whether e-evidence data is more or less costly than paper documents. ELECTRONIC EVIDENCE AT TRIAL Electronic evidence admissible at trial follows very closely the rules of evidence applicable in the “paper” world. In order to lay a foundation for a document produced through electronic means, the same protocols that are used for electronic evidence as for paper documents, i.e. testimony as to who created the document, when it was created, who was the recipient of the documents, the location of the documents, how it is applicable to the issues of the case, etc. For documents from a database, case law holds that the employee who prepared the databases was sufficient foundation to admit electronic records. Per Federal Rule of Evidence 901, e-data must be authenticated just like any other form of evidence, and the counsel must show that the document is true and accurate. However, since edocuments can be easily edited or altered, often not leaving any indication that there has been any tampering, there is a unique challenge when dealing with these documents. If counsel challenges the authenticity of a document, they should always ask what actions were taken to ensure that there have been no document falsifications. Also, questions should be asked as to how the e-evidence was retrieved, stored and processed during discovery, the identity of any person who handled the evidence during discovery, and determine the chain of custody of the e-evidence. As difficult as it may seem to follow the authentication, courts have rarely hesitated to allow computer-based evidence. Chain of Custody Electronic evidence presents a unique challenge in the establishing of the chain of custody. This requires a detailed presentation to the court which clearly outlines and defines the processes used to copy and to investigate the data. The principal concern for those seeking to admit electronic evidence is the procedures used and the environment to which the evidence has been subjected. Entries that address specifically the physical location of where the evidence was stored, the time and individual handling of the evidence, must be stressed. E-evidence in some ways is more fragile for storage than “paper” document storage, as extreme temperatures, dust, light, water and other elements could affect the digital evidence. “Best Evidence” Federal Rule of Evidence 1002, known as the “best evidence” rule, might seem that the production of the original computer files is required, however the rule does not require the counsel to bring the equipment of the original custodian (computer, printer, monitor, etc.) into the courtroom in order to display the document. Federal Rule of Evidence 1001(3) addresses this specifically and states that data that is stored on a computer or similar device, constitutes an original 203 piece of evidence. Therefore, any hardcopies that are printed out from documents, e-mails and any other digital data that is stored on computer hard drives are considered as an original. Further, Rule 1006 allows voluminous writings and records to be presented in a chart, a summary or calculation, which helps tremendously for computerized data that is located in a large database to overcome the “best evidence” limitations. In effect, this rule has become rather insignificant when admission of computer evidence at trial is sought. Hearsay Those not well-versed in the handling of computer data at trial might worry about hearsay, which is occasionally raised because the evidence is computer-based. Federal Rule of Evidence 801 states that hearsay is any out-of-court statement that is offered in an attempt to prove the truth of the matter. Electronic documents are no different from paper documents in this regard— they are not considered hearsay if are used just to establish an operative fact or they are not being used to prove the truth of the matter. However: Usually electronic evidence will be offered to prove the truth of the matter discussed, and will, therefore, need to fall under an exception in order to be admitted. The hearsay exception most often encountered is used for e-mail and other e-files are the “business records exception” under Federal Rules of Evidence 803(b). Just as with paper evidence, the record must have been made in the course of a “regularly conducted business activity” by a person with knowledge of the information that is contained in the record, at (or near) the time the information was obtained. Other exceptions can be used such as admission of party opponent (801[d]), present sense impression (803[1]) or excited utterance (803[2]). It could not but help when electronic evidence is to be used, to become acquainted with these Federal Rules of Evidence. Please note that there are many other technical areas that one who will use or encounter electronically produced evidence will require more specific and more detailed information, particularly in the areas of computer forensics, electronic discovery, obtaining and working with electronic evidence experts, etc. However, the scope of this discussion does not allow for more detailed information in this regard but there are several books on this subject that concentrate solely on this important field of electronic discovery. STUDY QUESTIONS 1. If a party in a lawsuit makes a request for discovery, it would be extremely rare if A. they ever obtained any worthwhile electronic evidence. B. they do not have to respond to discovery themselves. C. they would win the suit. D. they are successful in obtaining any worthwhile information. 204 2. Discovery may be limited to A. records that are not more than 6 months old. B. only paper records when most of the data is electronic. C. only corporations and organizations. D. the extent that it is unreasonably cumulative, duplicative or obtainable from other sources. 3. A rather unique feature of electronic documents, in particular e-mail messages, is A. that they are poorly organized and text “runs all over the place.” B. that there is very little of it. C. that they contain a degree of candor not usually found in other documents. D. that it is impossible to tell when they were dictated or received. 4. If a request for discovery is to be contested based on burden or expense, A. it would be strongly suggested that the expertise of an electronic record production expert be obtained. B. the requesting party must be able to bear half of the cost. C. the judge will automatically disallow any such contest. D. the majority of judges will always disallow the discovery because of cost. 5. Recent court decisions indicate that certain items be specifically argued, including A. the amount in controversy, resources of the parties and the importance of the issues. B. the expertise, education and reputation of counsels. C. jurisdictional disputes. D. reasons as to why a Summary Judgment is not in order. 6. Sometimes there is just so much electronic data that an all-inclusive request for discovery is impractical, therefore it could be advantageous to the client to A. just refuse the request for discovery as being too burdensome and too broad. B. argue every single piece of paper or data that is requested. C. obtain the services of a computer hacker. D. produce a sample of representative electronic data for review by the court. 7. Electronic data stored on backup tapes A. is easy to review as everything is by subject, author or date. B. is stored randomly, which can cause problems. C. can be searched for applicable data by even the most inexperienced operator. D. it totally inaccessible and courts will not, therefore, ever demand that data be produced for discovery from backup tapes. 8. Spoliation is A. the accidental destruction of data. B. the intentional destruction of data. C. the fragmentation of data to the point it can no longer be recoverable. D. creating e-mail messages that have no value or meaning. 205 9. The majority of courts have ruled that an accidental, unintentional or inadvertent disclosure of a communication or document A. waives the privilege of the communication or document. B. does not waive the privilege of the communication or document. C. will automatically cause a mistrial. D. will cause the party making the disclosure to be severely sanctioned by the court. 10. In trying to avoid sanctions for the destruction of e-evidence, the first step should be to A. obtain a court order defining the scope of the client’s duties to preserve the electronic documents. B. instruct a client’s executives to suspend policies that regularly destroys or overwrites, or other deletes data. C. shut down all business activities where electronic data or computers are involved. D. ask the court to appoint an expert in electronic data storage and operations to oversee the preservation of the documents. ANSWERS TO STUDY QUESTIONS 1B 2D 3C 4A 5A 6D 7B 8B 9A 10A 206 CHAPTER XVI - ETHICS AND LACK OF CIVILITY IN DISCOVERY INCIVILITY PROBLEMS Practicing attorneys have been made more aware of ethical problems in recent years, most of which is a result of the adversarial system which, in itself, is a challenge of balancing professional priorities and societal values. Simply put, the importance of concerns like truth, fairness and cost-effectiveness needs to balance against the short-term advantages for attorneys (and their client) that lie elsewhere—friends, there just isn’t no simple answers! This problem affects all of the legal practices, but this text addresses only discovery, so it will be limited to that field. The organized bar’s focus over the past decade or so, in respect to the adversarial practices of its members, has been incivility. Many bar associations have adopted voluntary codes to address this problem. To the general public, incivility is a problem and lawyers are at or near the top as the offenders in the minds of most. Bar associations have initiated codes and commissions to address everything from courtroom apparel to clear violations of existing rules regarding frivolous claims. (Virginia, it is reported, wants attorneys to maintain a “neat and tasteful appearance” and to shake hands with opposing counsel. Can shorter haircuts be next?) Actually, the Virginia Bar’s Principles of Professional Courtesy also states: “A lawyer should, whenever possible, attempt and cooperate in any reasonable effort to limit discovery by forbearance in number and detail of interrogatories propounded. A lawyer should seek voluntary and informal production of exhibits and documents and cooperate in the release thereof when the client’s interest will not be prejudiced thereby. A lawyer should make fair disclosures to discovery without needless qualifications” Efforts to improve civility focuses, as they must, on conduct that does not “technically” violate existing rules, or on the other hand, constitute violations that are nearly impossible or impractical (or expensive) to prove. DISCOVERY ABUSE Some examples involving the discovery process that have often been quoted and arise frequently: A good place to start is the blatant abuse of pretrial discovery such as refusing to stipulate to uncontested facts which only increases not only the expense and time of the discovery process, but also decreases the level of apparent professionalism. Also, the creation of “document debris” (In the Interests of Justice, Reforming the Legal Profession, Deborah L. Rhode) —an apropos description—by lengthy and prolonged questioning on matters that not only on the periphery, but sometimes are hanging over the edge. And to some, the practice of using boilerplate inquiries to opposing parties with sometimes-hundreds of questions that may, but more often may not, be relevant and appropriately (?) labeled “First Set of Interrogatories.” 207 And perhaps one of the most famous “semantical” circuses, was the deposition of the former President who quibbled over the meaning of “is” and redefining the meaning of “alone” and “sex.” Actually according to one unofficial source, it appears that lawyers are being more careful in their usage of words and are using more common definitions since this incident… Too many are guilty of “…sharp practices such as [adopting] hyper technical definitions of words used in discovery requests as a method for withholding obviously discoverable information, refusing to come to any agreements with opposing counsel concerning discovery and hearings at times he knows are terribly inconvenient for opposing counsel and his client.” (Waging Unconditional Warfare: An Exasperated Court Speaks its Mind,” Alex W. Albright, Tex. Law., Sept 5 1988 at 18 Col. 1) Some seem to try to create chaos by arranging depositions so that it almost guarantees that the other party will suffer the maximum inconvenience and expense; and refusing requests for extensions regardless of how reasonable the request may be. Another of the “techniques” is to deliver documents that will just not allow adequate responses, or at the very least, force opposing counsel to work holiday, weekends and vacations. Although it is undoubtedly objectionable, lawyers will still probe (fish?) for disclosures of very little (if any) value as evidence, but which will humiliate the opponent or their attorney. Even when a judge stops such shenanigans, some lawyers will continue to use such techniques just as long as they possibly can. They will also object to reasonable inquiries. It is no great revelation that some lawyers still inappropriately coach witnesses and instruct them not to answer. It seems that some lawyers do not believe in the process of discovery as they will use evasive strategies that will make it difficult, such as continually asserting the attorney-client privilege without an adequate basis. Documents provide a training ground for “shell game operators” by making them “misplaced” or just disappear, or continually reshuffling documents so as to make the opponents have to dig for material. The general rules seem to be to reveal as little as is possible, as late as is possible. It has also been said that the average litigant is “over-discovered, over-charged, over exposed and overwrought.” CAUSES There are a bunch of causes for this type of behavior. Clients can be protected from legal liability or adverse publicity by the withholding or obstructing access to prejudicial information. The clients can continue engaging in profitable activities that may or may not be legal; or to buy time for non-legal strategies such as political or public relations initiatives, by the use of delaying tactics. The “waiting game” is always available as a technique to turn litigations into an expensive war of attrition, a more favorable settlement may be obtained and/or it can discourage any other potential adversaries from filing suit. This was illustrated by a memorandum to the files of the R.J. Reynolds Tobacco Company, by a company attorney. The memo stated in part “The aggressive posture we have taken regard- 208 ing … discovery in general continues to make these cases extremely burdensome and expensive for plaintiff’s lawyers … To paraphrase General Patton, the way we won these cases was not by spending all of Reynolds’s money, but by making that other son of a bitch spend all of his.” Prolonging pretrial maneuvers in order to force settlements can sometimes avoid the possibility of defeat or, (horrors!), the (shudder) loss of reputation. Those who try to maximize billable hours have an interest in “running the meter” (isn’t it odd that litigators frequently report experiencing this but they never admit doing it themselves…). True, in cases where the stakes are high, the attorneys must be careful of the risks and if the pockets are deep enough, it may be wise to over-prepare. This strategy appeals to junior attorneys as many law firms do little effective mentoring and they create strong pressure to meet billable-hour quotas, so they have to cover all basis and they cannot second guess choices of supervising attorneys. These pressures become apparent in some of the most well-known cases of litigation abuse, including the Berkey-Kodak antitrust lawsuit. In that case, a senior partner lied under oath that certain documents had been destroyed. An associate (junior) who knew that this was not true, kept quiet. This perjury came to light eventually, but in many cases it does not. If this type of activity is used by a senior attorney, what message is that sending to the subordinates? Retaliation Some lawyers (and their clients) believe that retaliation has its own rewards, especially when battling a particularly abusive opponent. Some lawyers seem to believe that they are “on the side of the angels” so “niceties” of procedure need not be observed. Then, of course, the defense counsel feels like he must respond in a like matter, so the cycle goes round and round, and where it stops, no one knows… In the larger cities, informal sanctions seem to have little effect on reputation and there seem to be many who use “drive-by shootings” as an accepted method of representation, indeed, some clients seem to appreciate those who take a shot and then move on. Some clients want scorched earth tactics to be used when representing them. Some lawyers have marketed themselves accordingly, and seem to have plenty of clients. So what? That type of culture has a cost for all of those involved. In the short haul, these combative approaches do little to resolve disputes—everyone has at some time or other, met a person who “gets their back up” when verbally attacked. And they want to retaliate, it is human nature, so constructive settlement efforts go by the wayside.. In the long term, a lawyer’s reputation for integrity and reasonableness is diminished, and the result is less credibility and fewer referrals from courts and from opponents. Even their own working environment suffers, as an uncivil attorney will nearly always mean an uncivil associate or employer. But how about clients, how do they feel? Do they really like and will they be loyal to attorneys who have the reputation of incivility? The answer is absolutely “No” among the general public as most people really want a lawyer who can avoid conflict, not someone who amplifies it! The costs of litigation are of particular value where the parties have some on-going relationship or where there are third party interests at stake. 209 In many disputes involving a business, excessive legal expenses are passed on to consumers and are also subsidized by the public through government funding for the courts And then we have the strategic lawsuits against public participation (aka SLAPP) that have been filed against environmental, consumer and even neighborhood groups for allegedly false claims about corporate practices. These suits do not seem to go anywhere in the courts, but sometimes they work by muzzling those who cannot afford the cost of lengthy, drawn-out litigation. Even where they are evenly matched financially, abuses of the adversarial system can create unjustified outcomes. There is a case in point, demonstrating both the discovery process and the corrupting of the system. Early in the 1990s, there was a product liability lawsuit filed against Fisons Corp, which was a large pharmaceutical manufacturer. There was a lot of publicity about this case, mostly because of the tactics used by the defense counsel—of course, since children were allegedly damaged by one of their products didn’t hurt. The case was about theophylline, a generic drug which Fison marketed as a treatment for asthma. Over the previous decade, there were increasing reports of the hazard of the drug for children with viral infractions, so the company warned a selected group of doctors of those risks and they were prompted to recommend an alternative, cromolyn-based Fison’s drug, Intal. An internal memo detailed the dangers and recommended that the company cease its promotion efforts of the theophylline and as an alternative , to encourage the use of cromolyn. Fisons did not follow that recommendation. In 1986, a two-year old child with a viral infection suffered severe brain damage while taking theophylline. Her parents sued the company and the child’s physician (who had not received a warning letter). The doctor settled with the family and sought to recover the judgment from Fisons, because it had not disclosed the relevant risks. Bogle and Gates, a Seattle firm, defended the company on the ground that it had insufficient knowledge of the danger of the drug to warrant such disclosures. During pretrial discovery, the doctor’s lawyer sought copies of any letters that Fisons had sent to other doctors concerning the risk of theophylline with children. Defense counsel responded that they would produce letters regarding only theophylline, and they rejected requests for information regarding cromolyn products as being too irrelevant, overbroad and harassing. They claimed that the material that they were releasing were all documents relating to the doctor’s case. Based on that claim, the court granted Fisons’ request to narrow the discovery order and defense counsel produced (literally) thousands of documents, but not the warning letter or internal memo (these were in a file not subject to discovery). None of the material that was provided to the plaintiff indicated that Fisons employees were aware of theophylline’s risks before the child’s illness. After four years of discovery when the case was finally about to go to trial, attorneys for Fisons discovered the warning letter and internal memo, but they decided not to produce copies for the opposing counsel because the documents did not explicitly refer to the brand-name drug taken by the child, that they were intended to promote a cromolyn-based drug, and therefore, it fell outside the revised scope of discovery. Really. Usually under normal conditions, that would have been the end of the lawsuit as without these articles the case would probably have been dismissed for lack of evidence. However, an anonymous whistle-blower sent the letter to the doctor’s lawyer, who then was able to obtain full discovery of relevant documents, including the internal memo. After a trial a lower court 210 awarded the doctor several million dollars, but refused to sanction the defense counsel for their nondisclosure. On appeal, the Washington Supreme Court reversed the sanctions decision, and they maintained that the defense attorneys were obligated to make good on their representation that all relevant documents had been produced; any questions about the scope of the revised discovery order should have been taken to the trial court. After that decision, Fisons and Bogle and Gates settled for a fine of $325,000. (Washington State Physician’s Insurance and Exchange Association v. Fisons Corporation, 858 P.2d 1054 [Wash. Supreme Ct.]) After the documents were revealed, Fisons settled the Pollack’s lawsuit for $6.9 million and the jury awarded the doctor, (Dr. Klicpera) $3.3 million (later reduced to $1.1 million by the Washington Supreme Court). The trial judge also awarded Dr. Klicpera $450,000 in attorneys‘ fees. The case was the basis of an article in The American Lawyer entitled “Sleazy in Seattle.” Needless to say, this outcome is not typical as evasive discovery usually is not discovered, and when it is, it is rarely sanctioned. The really remarkable thing about this case is that the defense team of fourteen leading ethics experts, all testified that the firm’s conduct was not in fact notable or deserving of sanctions! One of the experts had been president of the Washington state bar and one had served as the reporter for the American Bar Association’s Model Rules of Professional Conduct. All 14 insisted that the defense counsel’s conduct was “typical” as well as proper. Further, several claimed it was required by “lawyers’ ethical obligation to zealously represent their client.” Monroe Freedman, an ethics expert, commented on the case: “What does this (consensus among experts) tell us? It tells us that lawyers throughout the bar—including those who eventually became judges)—had known for decades that discovery rules were being systematically frustrated by disingenuous responses to discovery demands. It tells us that the Washington Supreme Court was itself being disingenuous in pronouncing itself shocked that such things were going on. (Sarat: Ethics in Litigation, 150, Thomas E. Willging et al) The above comment was part of an ABA-sponsored study of litigation ethics which indicated that many lawyers and judges share the view that “Fisons is not unusual at all. There is usually no consequence…to an attorney for hiding documents at all. What matters is keeping the client and winning the case.” The recent research on discovery found that almost half of attorneys reported problems in obtaining relevant documents. In an earlier study, lawyers handling large cases reported that in about half the matters that were settled and in about 40 percent of those that were tried, they had significant information that was discovered by other parties. There are numerous examples of adversarial abuses. The public has become at risk at times when “hardball” litigation tactics were involved, such as cases involving asbestos, the Dalkon Shield, tobacco and vehicle designs, and these tactics have placed the public at serious risk. And in cases with less visibility, lawyers from some of the leading legal firms in the country have been involved in destroying or withholding evidence. 211 In another such case, Texaco’s lawyers did not produce the minutes requested for personnel meetings at which racist discussions occurred, but the company provided only edited versions of the minutes. The plaintiffs did not know that that there were the two versions of the meeting, and they had specified their (obvious) desire for complete, unrevised minutes. The attorney for Texaco stated that it could provide “what they were looking for—nothing more, nothing less.” Again, a whistleblower employee leaked original tapes of the meetings, so Texaco settled the litigation to avoid punitive damages. The case was then worth $176 million. (“View from the Front Lines, Brazil 245-51; and Attorney’s Views, Keilits, Hanson and Semiatin, 38.) So what was the response from the legal community? Actually, they pretty well split on one of two responses. For law practices that clearly violate procedural and ethical rules, attorneys want more judicial control. As a group, lawyers favor a more active role for trial courts in overseeing the litigation process and in sanctioning abusive behavior. On other practices, lawyers are divided as some see “hardball” strategies as nothing more than the results of the adversarial system plus the protection of confidentiality, which as a general rule, service society and professional interests well. Others would really like to see greater curbs on partisan abuses—but they cannot agree exactly what “abuse” is. Therefore, there has been a compromise on these questions which establishes more demanding ethics norms that what there is presently, and they should not be intended to give rise to judicial sanctions, bar discipline, or malpractice liability. Obviously, there are limitations to either “solution.” Over the past 20-odd years, attempts to control abuse has been approached by managerial judging strategies, including pretrial conferences, special masters to oversee discovery and sanctions for claims that are not well grounded in fact or based upon good faith arguments, plus actions that are clearly intended to harass or to cause unnecessary delay or expense. While these strategies are well intentioned they lack adequate resources and incentives for oversight, not to mention the difficulties in actually applying such standards. As an indication of its failure, one study asked several hundred judges to review and comment on ten hypothetical cases that were based on reported decisions. On 6 of the cases, about half believed that sanctions were proper, the other half did not. Evidently a judge's own bias affects decision making—does that surprise anybody? It would seem that judges, in general, do not have the time, the resources, or the will to provide much in the way of oversight. This is a fair statement as the judges are more often than not required to determine who is at fault, much less what constitutes evasion or bad faith, and on top of their already-overburdened court duties, this is more than a court can afford to acquire. Not to mention that many of these cases are settled before trial anyway. One of the judges participating in the ABA litigation study stated: “Discovery disputes are a nuisance…Putting time into sanctions does not move a case to resolution.” The answer is simple, really, and that is to increase the resources of the judicial system, reducing caseloads and providing more special masters. The problem is, obviously, legislatures who do not want to make the necessary expenditures— particularly since the public not has been informed sufficiently to put the pressure on. Even if the courts did have the resources, how often would they then monitor misconduct? Let’s face it, most judges do not like to antagonize lawyers by imposing sanctions as sanctions have a tendency to escalate a dispute, compromise efforts for settlement, risk reversal on appeal (which none of the judges want), and they can erode support in judicial elections or bar opinion 212 polls. Therefore, if lawyers cannot keep their partisanship in check, then that is the problem for the lawyers. And, as we all know, litigation then, as one judge so aptly put it, “becomes a spectator sport with an absent referee.” When courts do impose penalties, they usually are miniscule in relation to the stake of the lawyers and clients. Fisons is a good illustration—$325,000 fine in a case involving several million dollars. . LEE V. AMERICAN EAGLE AIRLINES, INC This particular case (Southern District of Florida, 2000, 93 F.Supp.2d 1322)is used as an illustration of the misconduct of counsel. Judge J. Middlebrooks, presiding. The case came before the court upon Plaintiff’s Amended Verified Motion for Attorney’s Fees and Costs, filed Nov. 4, 1999. Note: The names of the counsel, co-counsel and his client in this case are fictitious, as it serves no purpose to “kick a dead horse.” Very interesting start of the judge’s comments: “Let’s kick some ass,” James Brown said loudly to his client, Robert Hedge, and his cocounsel, Bill Brown…(Court was in session when this was said.) Opposing counsel and their client representatives were seated across the isle. The jury was not as yet in the courtroom. “Mr. Brown’s comment was suited more to a locker room than a courtroom of the United States, and the conduct of Plaintiff’s counsel that followed disrupted the adversary system and interfered with the resolution of a civil dispute.” “The trial of this case lasted approximately fourteen days. The jury found that American Eagle Airlines had subjected Mr. Hedge to a racially hostile work environment in violation of Title VII of `964, 42 U.S.C. § 2000e, et seq, and 42 U.S.C. §1981. As compensation, the jury awarded Mr. Lee $300,000. In addition, the jury awarded Mr. Hedge $650,000 in punitive damages. The jury denied Mr. Hedge’s other claim, also premised on Title VII and § 1981, finding that Mr. Hendge had not been terminated because of his race. This motion seeking attorney’s fees and costs pursuant to 42 U.S.C. § 1988 followed.” “As the prevailing party in a Title VII action, the Plaintiff now seeks $1,611,910.50 in attorney’s fees. This request presents the question of whether unprofessional and disruptive conduct of counsel which prolongs the proceedings and creates animosity which interferes with the resolution of a case can be considered in determining an aware of attorney’s fees.” “In their post-trial motions, counsel for the parties filed opposing affidavits concerning additional misconduct that was not directly observed by the Court. Since these affidavits presented vastly different versions of events, an evidentiary hearing was held; counsel and other witnesses testified.” “These issues have been distasteful and time consuming. There is a great temptation to simply move on and ignore the issue. It is unpleasant to hear lawyers accusing each other of lies and misrepresentations. Unprofessionalism on the part of lawyers is a distraction and takes time away from other pending cases; it also embroils the Court in charges and counter charges. However, the functioning of our adversary system depends upon being able to rely upon what a lawyer says. So, confronted by affidavits of counsel that were directly contradictory, I decided 213 to hear testimony and credibility findings. These findings are based upon direct observations by the Court, the transcript of the trial, and the evidentiary hearing.” “In addition, we contacted the Florida Bar Association to determine whether counsel had been the subject of complaints regarding unprofessional conduct. The Florida Bar forwarded a record of a previous complaint by a state court judge concerning the conduct of James Brown. In response to that complaint, and immediately before the trial in this cause, the Florida Bar had directed Mr. Brown to attend an ethics class and pay a fine…” “Discovery in this case was rancorous from the beginning. As is often the case, counsel for both sides contributed to the lack of civility. The tone of deposition was harsh, witnesses were treated with discourtesy, and discovery disputes were abundant. The transcripts of the depositions in this case are weighted down with bitter exchanges between the lawyers…” Testimony at the evidential hearing reflected that this uncivil conduct also continued during conversations between counsels. The testimony of a young lawyer formerly with the Defendant’s counsel’s law firm was particularly poignant. This lawyer testified that during telephone conversation with Bill Brown, she was hung up on, told that she had only been assigned to work on the case because she was African-American, and wrongfully accused of misrepresentations. She testified that her experience with opposing counsel in this case was a factor in her decision to leave her litigation practice. This testimony was not only powerful and credible, but it also reflects the corrosive impact this type of unprofessional behavior can have upon the bar itself. A litigation practice is stressful and often exhausting. Unprofessional litigation tactics affect everyone exposed to such behavior and the ripple effect of incivility is spread throughout the bar. “The trial began. Testimony at the evidentiary hearing revealed that the Mr. Brown’s …comment was not an aberration. A client representative of the Defendant, a lawyer for American Airlines, testified that she and others were subjected to a barrage of comments out of the hearing of the Court and jury which she likened to trash talk at a sporting event. Local counsel for the Defendant was called a “Second Rate Loser” by James Brown. She testified that each day as court began, James Brown would say, “Let the pounding begin.” In front of defense counsel’s client, Mr. Brown would ask, “How are you going to feel when I take all of your client’s money?” When walking out of the courtroom, Brown would exclaim, “Yuppies out of the way.”… [The judge then lists several examples of alleged misbehavior by both Browns, including speaking with a witness during a break even though they were warned not to do so; they looked to the ceilings when their objections were overruled; they made belligerent comments directly to opposing counsel, and they insulted the court reporter—then they complained to the judge about the reporter’s bias when the reporter responded to the insured with an epithet.] “I required the Court Reporter to apologize for his behavior. Because of the accusation of bias, I arranged for other Court Reporters to cover the remainder of the trial.” 214 “I learned that accusations of bias followed any disagreement with positions espoused by Plaintiff’s counsel: ‘There’s no question that he’s entitled to it, so it’s no—if I understand what Your Honor’s saying, you don’t want it to go in front of the jury for whatever reason.’ ‘Your Honor, I know you’re angry with me, but I hope that you’re not taking it out on my client.’ ‘In fact, I think that the Court has extreme bias in this case and your rulings on objections.’ ‘Well, Your Honor, I respectfully disagree with you, that’s for a court of appeals to ultimately to decide, but to put a motive on it I think it exhibits a substantial amount of bias on behalf of Your Honor.’ ‘And I concur with what my brother has said. There’s been clear animus by this Court to this side.’ ‘I’ve practiced 26 years and I’ve tried over 50 cases, and I’ve won multimillion dollar verdicts on more than a dozen cases. I don’t need for this Court to allow a witness to have his wife introduced. I can’t think of any reason or purpose, other than prejudice, that this Court would allow such an act to occur.’” [The judge again detailed other instances of alleged misbehavior by the Browns, the rolling of eye, looking at the ceiling again, flailing of arms when the judge made an adverse ruling. When the judge admonished Brown for laughing at one such ruling, “Brown then listed a litany of complaints about rulings which he stated should result in a mistrial. But when the judge offered a mistrial, the Plaintiff refused. During another disagreement, the judge admonished Brown, “If I can’t rely on lawyers being able to respect each other and be respected and accept what other people say in the courtroom, this system can’t work. It’s as important to me as whether or not you have a law degree.] “During a cross-examination concerning how much time the witness spends on various shifts, Brown held a file towards the witness and asked: ‘I have your personnel file (indicating). How many times did you have to work between 1992 ‘and 1994, sir? Do you think it was more than a handful of times?’ [Out of presence of the jury, Brown responded:] ‘Actually, we do have (witness’s) personnel file, when it was produced among all the other personnel files in Miami of the people. I don’t know if that box is here of I left it in the office. I think the personnel files that we were given by counsel are in the office.’” “The Court: So it wasn’t in the folder that you picked up and carried to the stand? Mr. Brown: No it wasn’t, Your Honor. The Court: You said, [witness name], we have your personnel file here!” * * * “The Court: You believe it is permissible to pick up a file from your desk, carry it to the witness stand and tell the witness, “Mr. [witness], we have your personnel file,” and then begin questioning him? You believe that’s appropriate court examination? Mr. Brown: I do, on hostile witnesses; on cross-examination, I believe that I’m entitled to have that witness believe I’m going to question him on something whether or not I have that in my hand of not. Yes, I do.” [The judge stated that he believed it was not appropriate to make a deliberate misrepresentation (read lie) to a witness or to ask a question and imply in the question something that it not true. Brown responded that he was not implying anything or making a misrepresentation. (?) The question was, he insisted, how many times the witness had worked, and not ‘in your person- 215 nel file it says something’ that was not true. Then Mr. Brown insisted he had the personnel file in his office, was asked to produce it the next day, and the file was never produced.] After the trial, the defense counsel approached Brown and offered his hand in congratulations. Of course Brown refused to shake his hand. Quoting the judge again: “At the evidentiary hearing, Plaintiff’s counsel was unrepentant, attacking opposing counsel and accepting no responsibility for their own actions. They argued that the perceived misconduct was only a matter of style and the exercise of First Amendment rights. In keeping with that ‘style,’ Brown ended the hearing with the proclamation that he had called his opponent a loser, but not a second-rate lower because, ‘I don’t rate losers.’ Mr. Brown’s testimony reflects that he has no clue about what it means to be a lawyer.” In determining the “reasonable attorney’s fee” the judge awarded the prevailing party, Mr. Brown’s client, $150 an hour instead of $300 an hour claimed by Brown, because “…I find that the conduct of (the Browns) in the litigation of this case fell far below acceptable standards, particularly in light of the $300 hourly rate the attorneys claim Accordingly, I find ‘special circumstances’ justifying a departure from counsels’ requested rates: Bill Brown shall be awarded $150 an hour for his pretrial work, and $0 for his trial work; James Brown’s rate for this action is $0. (The judge concluded:) “…I (recently received a letter) from a trial lawyer following a discussion on civility and professionalism with the Miami Chapter of the American Board of Trial Advocates. This lawyer stated: ‘It seems to me that the courts are basically facing this issue as one of education. Hence we have seminars, guidelines and articles from both the state and federal bench explaining what lawyers should do to be civil and professional to each other. However, I do not think the problem is that lawyers do not know how to act in a civil manner. Rather I think some lawyers will simply do that with which they can get away. Special masters, grievance committees and educational seminars are not as effective as a sanction for uncivil behavior. I know our federal court is quite busy and that the time it takes to consider uncivil behavior may have to be taken from some other pending case. However, I would submit that eliminating uncivil behavior not only helps that case, but every other case in which that lawyer is involved. Moreover, as the word spreads as to the price to be paid for unprofessionalism, other lawyers and other cases will be implicated.’” The court agreed that the reduction in attorney fees is an appropriate response to Plaintiff’s counsel’s behavior, but the judge was not convinced that it would deter future misconduct, so the reduction in attorneys’ fees based upon misconduct of counsel was fees of $358,423.20. Therefore, the Plaintiff’s Amended Verified Motion for Attorney’s fees and Costs was granted in the sum of $312,324,.63. He also sent a copy of that order to the Florida Bar and the Peer Review Committee for the Southern District of Florida, for any action deemed appropriate. Comments The judge awarded the Plaintiff’s lawyers $312,324.63 in fees and costs, and then, in effect, fines them $358,423,20. The lawyers had asked for $1.6 million in attorneys’ fees. Questions arose as to whether the fee reduction was excessive and was the judge abusing his discretion 216 when he (as he said) held “the manner in which a lawyer interacts with opposing counsel and conducts himself before the Court is … indicative of lawyer’s ability and skill” and he then reduced their hourly fee as a result. Another item worthy of consideration and discussion is that the Plaintiff’s attorneys remarked several times that the judge was biased against them, but they refused a mistrial because of judicial bias. The question arises as to whether lawyers should act as though they agree with a judge’s unfavorable rulings. In respect to discovery however, was this misconduct for the Plaintiff’s attorneys to pretend that the papers in his hand were a witness’s personnel file when they were not? KODAK-BERKEY TRIAL - DESTRUCTION OF DOCUMENTS An article in Esquire Dec. 19, 1979, entitled “When a Lawyer Lies”, by Steven Brill, and quoted in Legal Ethics, Third Edition, presented an interesting story in which the discovery process is an integral part. (The main point in the story was what had happened to an up-andcoming attorney who perjures himself.) Joseph Fortenberry was the subject of the story; a 33-year old graduate of Harvard and Yale Law and a member of the prestigious law firm of Donovan Leisure Newton & Irvine, and he was working on a very important (to the firm) lawsuit involving antitrust that Kodak as defending against Berkey Photo. Kodak was a $4 million a year client and Fortenberry was working with Perkins, one of the most respected partners in the firm. On April 20, 1977, during one of hundreds of depositions that he had sat through, his career started unraveling. Stein, the attorney for Berkey Photo, was questioning a Kodak expert witness, Yale economics professor Merton Peck, about files and other materials the professor had received from Kodak in order to prepare his testimony. Peck told Berkey lawyer Stein that he had shipped all the materials back to Perkins of Donovan Leisure earlier that year. “What happened to the documents then,” Stein asked Perkins. Perkins replied, “I threw them out as soon as I got them.” Perkins was lying as he had saved all the documents in a suitcase which he took back and forth between his office at the firm and a special office he had leased near the courthouse. Joe Fortenberry, who was sitting at Perkin’s side during the deposition, knew his boss was lying because he had also carried the suitcase between the two offices. Two weeks later, Perkins submitted a sworn statement to the court confirming that he had destroyed the documents. In January 1978, the whole thing blew up when Stein, at the end of the Kodak-Berkey trial, asked Peck about any reports he had submitted prior to the trial to Kodak’s lawyers, which led to more probing questions about the materials Peck had used to prepare his testimony. Actually, Berkey’s attorney asked Perkins whether there were any documents “on this matter” prepared prior to a given date. When the expert asked for a definition of “on this matter,” the attorney for Berkey pursued the issue and the district judge required disclosure of the letter. Then the roof caved in, as a badly-frightened Perkins broke down and confessed to Kodak lead lawyer John Doar that he had never destroyed the documents, but had actually hid them in a cupboard in his 217 office. Perkins then told the judge the next day, then resigned from the firm. Stein used Donovan Leisure’s withholding of documents to help convince the jury of Kodak’s bad faith and guilt. Kodak lost the case in a $113 million verdict (later reduced to $87 million) and Kodak severed all relationships with Donovan Leisure. Perkins was convicted of contempt of court because of his perjury and was sentenced to a month in prison. Under the Code of Professional Responsibility, Forteberry was required to reveal the fraud, since he knew about it, to the tribunal and report Perkins to the proper prosecutorial authorities. He did neither. In the summary to the jury, the Berkey counsel made the most of the incident, naturally: “That sordid spectacle of dissembling, evasiveness, deception and concealment disgraces the dignity of this court, this proceeding, and you jurors. And there is no doubt, I believe, based upon the evidence presented to you, and the conclusions to be drawn from that evidence, that the witness deliberately and purposefully concealed material evidence, and—I think this has got to be said—lied to you under oath. Not once, repeatedly. [The expert] has proven himself utterly unworthy of belief” The judge read the riot act to Donovan Leisure because of their performance, and he said that it reflected a “kind of single-minded interest in winning, winning, winning, without the limited qualification of that attitude that the Court…is entitled to expect and which I feel must have infected Perkins and has infected certain aspects of this case from time to time.” Just as a note of interest, after the circuit court reversed and remanded the lower court, Kodak eventually settled the case for $6.75 million, Donovan Leisure paid $675,000 to Kodak to prevent a malpractice claim for failure to turn over documents. The responsible senior partner of Donovan Leisure resigned, because of his ineffective supervision of the Kodak-Berkey case. Fortenberry remained at Donovan Leisure as they did not want to fire him because that would intimate that he was implicated in Perkin’s wrong-doing. However, knowing he had no future with that firm, tried to find another job, and was unsuccessful. Perkins, on the other hand, served 27 days of confinement (as assistant to the chaplain), received a pension payment from Donovan Leisure and has never been disbarred. He traveled in the Far East, teaching English to Japanese students, later President of the Greenwich, Conn., Philharmonic Orchestra, and then at age 65, he volunteered for the Center of Constitutional Rights, a public firm specializing in civil rights. DISCOVERY AS REMEDY FOR INCIVILITY AND ETHICS PROBLEMS As evidenced in the preceding discussion of cases involving ethics in discovery, most will agree that some improvement is in order. There have been changes in bar ethical codes but current codes are really insufficiently demanding. Some rules simply track existing civil procedure rules and prohibit those actions that are considered as frivolous or intended to harass, but disciplinary actions are rare and are not severe. There are more proposals for requirements that are more ethical and several were made and rejected during the ABAs debates over the Model Rules of Professional Conduct. One suggested rule would have prohibited lawyers from “unfairly exploiting” an opponent’s ignorance and obtaining an “unconscionable result.” Another was that lawyers should be required to disclose adverse facts to a tribunal if they would probably have a “substantial effect on the determination of a material issue.” Others have suggested that it should 218 be required that attorneys not misrepresent or conceal a relevant fact or legal principle, and further, that counsel in civil cases follow the rules now applicable to prosecutors in criminal cases and turn over material evidence favorable to other parties. Is their opposition to this? You bet! Besides the obvious problems with confidentiality, other objections are based upon fairness, incentives, and enforcement. Many of the most vociferous cannot see when opponents should “freeload” on their hard work. They maintain that it is not just for their clients to subsidize both sides of a lawsuit, and it appears inefficient to undermine incentives for thorough preparation by opposing counsel. But it seems that the present system encourages inefficiencies through the encouragement of fact-finding efforts and also by allowing attorneys to withhold material information that opponents have failed to discover through reasonable efforts. There is no proof that some minimal disclosure requirements actually reduces the opponents effort, indeed, in criminal cases requirements of that type have not had that effect when the clients have sufficient resources for representation. Further, where clients cannot afford advocacy, any loss in incentives for their attorneys can usually be offset by the value of the information that is provided through mandatory disclosure provisions. The federal courts, which have automatic disclosure of some basic information, seem to like and appreciate those requirements and both judges and lawyers see little negative results and seem to want to continue these requirements. INSTANCES OF PRIVILEGED MATERIAL There were discussions of discovery being thwarted because of confidentiality. The subject of “confidentiality” is complex and is outside the purpose of this text. However, it raises its head during the discovery process, not only at depositions and interrogatories, but also and more often when documents are requested. There are a couple of examples worth mentioning: In one case, there was a lawyer working for a kidney dialysis company and as a member of management, the lawyer became aware that a foreign (German) subsidiary had sent a shipment of kidney dialysis machines that failed to meet the USFDA standards. In fact, the dialysis machines could possibly put some patients at risk by leaving excessive levels of potassium and phosphate in their systems. The President of the company accepts the shipment which would then be resold to a customer who cares more about price than quality. The lawyer threatens to disclose the defects, so the President fires him and the machines are resold. (“Privilege of Counsel and Confidential Communications,” by Arthur Powell, George Bar Journal 6 [1964]) The attorney in the above case practiced law in Illinois, which required disclosure necessary to prevent any client conduct that would result in death or serious injury—one of the few states to have these requirements. The lawyer reported the machines to the “USFDA and then sued for wrongful termination. The Supreme Court of Illinois rejected the suit, even though a majority of the justices agreed that the lawyer had “no choice” but to reveal the situation. But, since he had no alternative, he also needed no protection against the employer’s retaliatory discharge. The Court said that lawyers should expect that sometimes they may “have to forego economic gains in order to protect the integrity of the profession.” The Court felt that it was more important to protect companies from unfair litigation than to protect employees from unfair discharges because if corporations had to worry about lawsuits from lawyers who were disgruntled former 219 employees, and the disclosure of confidences as part of the proceedings, then “employers might be less willing to be more forthright and candid with their in-house counsel.” To many, this reasoning is a little tough to understand. It would appear that this risk was more important than supporting attorneys who forfeited their jobs to save lives. TOBACCO COMPANIES AND DISCLOSURE The deafening silence of many attorneys throughout the years regarding client misconduct (which is another topic) has contributed to some of the worst public and financial disasters this country has ever known. For several years, attorneys knew about the dangers of asbestos, the Dalkon Shield, and everybody’s favorite punching-bags, the tobacco industry. Tobacco companies, it is now known, deliberately channeled compromising scientific research through their law firms so that they could claim that it was privileged and was exempt from disclosure. These claims of privilege grew to nearly the size of the Great China Wall, so it had to be dissected piece-by-piece. By making these privilege claims, lawyers working for tobacco companies were able to prevent the timely release of thousands of documents that revealed fraudulent activity. The attorneys who actively participated in this “cover-up” either by actively assisting in hiding information, or who simply sat by and let it happen, seriously contributed to the health losses that are projected to cost taxpayers $200 billion. A federal trial judge asked in a similar situation (Lincoln Savings and Loan), “Where were [the lawyers] when these clearly improper transactions were being consummated? Whey didn’t any of them speak up or disassociate themselves from the transactions?” The answer to these pertinent questions lies in a couple of areas. One explanation would be because of the money—law firms that worked for tobacco companies were invariably very well paid. The other explanation is that lawyer’s responsibilities to their clients, supported by bar ethical codes, rates client confidences at the high end of their priorities. So be it— There is a multitude of cases and situations where legal ethics affects the discovery process— or vice versa. Texts on legal ethics discuss many of them in detail. Any such study will soon reveal that in respects to the discovery process, “ethics” plays a very large role. The biggest temptation to attorneys evading or ignoring legal ethics in the discovery process is when a case can hinge on information in the possession of the attorney that was developed by him (and staff) at a cost paid by the client; and the opposing counsel is demanding that documents be released to him and/or such information be obtained through deposition and/or interrogatories. Objections to the discovery process, or the worship of such an important tool in the pursuit of justice—would depend upon whose ox is gored. An “English” grandmother who was considered as extraordinarily wise in her small Midwestern community, when presented with a difficult problem or conundrum, would always ask, “Is it proper?” When asked how one knew what was “proper?” she would look directly into their eyes and say, “You will just know.” A professional always knows, even when it is difficult to release information that could blow your client’s case out the window. 220 STUDY QUESTIONS 1. Ethical problems are usually A. a result of the adversarial system. B. ignored and then they gradually become accepted practice. C. present in other professions more than the legal profession. D. created by young, inexperienced lawyers in large law firms. 2. The organized bar’s focus over the past decade in respect to adversarial practices and ethics, has been A. trying to squelch any implications of unethical practice by bar members. B. incivility. C. embezzlement of client’s funds. D. concentrated only on criminal law. 3. In regards to discovery, the Virginia Bar very succinctly and correctly stated: A. “Discovery is the time that delaying tactics are not only accepted, but approved.” B. “Discovery and our adversarial system cannot ever “live in the same space.” C. “A lawyer should make fair disclosures without needless qualifications.” D. “Discovery is an archaic and unproductive quirk of jurisprudence.” 4. In the discussion of discovery abuse, a good place to start would be A. the blatant abuse of pretrial discovery, such as refusing to stipulate to uncontested facts, thereby increasing expense and time of the discovery process. B. for law schools to stress depositions and effectual interrogation techniques. C. for it to be required that only paralegals handle all pretrial aspects of discovery except for the deposition. D. to set dollar maximums on the amount that can be spent on discovery expenses. 5. Some attorneys seem to want to create chaos by A. coming to court or deposition late. B. charging more for their services than the traffic can bear. C. arranging depositions so that it almost guarantees that the other party will suffer the maximum inconvenience and expense. D. informing the judge of every step in the discovery process that they take. 6. It appears that those who use unethical tactics during discovery seem to follow a general rule, A. reveal as little as possible, as late as possible. B. treat the opposing counsel with grace and humility and the judges just eat that up. C. use all of the client’s funds in every kind of discovery imaginable, that way they can appeal on the unfairness of expenses when the client is destitute. D. ignore ethics. 221 7. As far as lawyers are concerned, informal sanctions A. sometimes seem to have no effect on reputation, particularly in larger cities. B. must be avoided at all costs as they can cause total destruction of a legal career. C. are never used in discovery situations. D. are the only kind of sanctions that can be used in discovery. 8. In many disputes involving a business, excessive legal expenses are passed on to consumers and subsidized by the public through government funding for the courts, which has led to the formation of “SLAPP,” who A. file meaningless claims against businesses, looking for “deep pockets.” B. is an organization of lawyers who specialize in class action lawsuits. C. a quasi-government body, headed by the “Secretary of Labor and Public Policy. D. is an organization to battle the innumerable and costly lawsuits against corporations, filed by environmental, consumer and neighborhood groups who file false claims against corporate practices—Strategic Lawsuits Against Public Participation. 9. For law practices that clearly violate procedural and ethical rules, lawyers want A. for the judicial system to “butt out” and let the bar associations deal with the problems. B. criminal charges and disbarment for those that get caught. C. stricter action by the judiciary (50%) or just more training in “legal ethics” (50%). D. more judicial control. 10. The silence of many attorneys throughout the years regarding client misconduct, A. seems to have had little effect on ethical behavior by lawyers or their clients. B. is considered by most as entirely proper as attorneys face sanction if they object too loudly about the behavior of their clients. C. has been caused by SEC regulators who frown if attorneys representing corporations disclose any problems with their clients that could affect their stock prices. D. has contributed to some of the worst public and financial disasters this country has ever known. ANSWERS TO STUDY QUESTIONS 1A 2B 3C 4A 5C 6A 7A 8D 9D 10D 222 REFERENCES Civil Procedure, Fourth Edition Joseph W. Glannon Aspen Publishing, 2001 Introducing Discovery Into Civil Law Kuo-Chang Huang Carolina Academic Press, 2003 Law, 101 Jay M. Feinman Oxford University Press, 2000 Nolo’s Deposition Handbook Paul Bergman & Albert Moore Nolo Publishing, 2003 Electronic Evidence & Discovery: What Every Lawyer Should Know Michele C.S. Lange & Kristin M. Nimsger ABA Publishing, Section of Science & Technology Law, 2004 In the Interests of Justice Deborah L. Rhode Oxford University Press, 2000 Legal Ethics, Third Edition Deborah L. Rhode & David Luban Foundation Press, 2001 Federal Rules of Civil Procedure Section V, Depositions and Discovery Florida Rules of Civil Procedure Sections 1.280 – 1.390 The Moral Compass of the American Lawyer Richard Zitrin & Carol Langford Ballantine Books, 2000 Legal Ethics in the Practice of Law Richard Zitrim & Carol Langford Ballantine Books, 1997 223 The Conscience of a Lawyer David Mellinkoff West Publishing, 1973 The Myth of Moral Justice Thane Rosenbaum HarperCollins, Publisher, 2004 Black’s Law Dictionary, Seventh Edition West Publishing Co. Lawyers Ethics in an Adversary System Bobbs Merill, 1975 Problems in Legal Ethics Rex. R. Perschbacher West GrouP, 1998 Legal Ethics & Professional Responsibility Johnthan S. Lynton Delmar Learning, 1994 PUBLICATIONS, COURT DECISIONS, AND OTHER REFERENCES Many newspaper articles from the New York Times, Washington Post, Philadelphia Inquirer, and others have been included in part in this text. If the material used is of any length or is quoted, the source is named in the text Court decisions and court cases are quoted when applicable. Oftentimes when decisions or court comments are discussed, they are a compilation of similar decisions and the specific sources therefore, are not named. 224 225
