QUINCY COLLEGEQUINCY COLLEGEParalegalStudies ProgramParalegalStudies Program

Litigation and Procedure

Discovery: Document Production and Control, Medical Exams, Admissions, and Compelling

Discovery

Litigation and Procedure

Discovery: Document Production and Control, Medical Exams, Admissions, and Compelling

Discovery

Purposes of ProductionPurposes of Production

To make evidence available to both sidesTo make evidence available to both sides

To prevent surprise at trialTo prevent surprise at trial

To locate evidence damaging to opponent To locate evidence damaging to opponent that supports theories of requesting partythat supports theories of requesting party

Scope of ProductionScope of Production

Writings, drawings, graphs, charts, Writings, drawings, graphs, charts, photographs, sound recordings, images, photographs, sound recordings, images, and other data or data compilations and other data or data compilations stored in any mediumstored in any medium

Tangible things which constitute or Tangible things which constitute or contain matter within the same scope as contain matter within the same scope as other discovery devices other discovery devices [FRCP 26(b)][FRCP 26(b)]

Access to land or other property within Access to land or other property within the possession or control of a partythe possession or control of a party

Discovery Rules Governing ProductionDiscovery Rules Governing Production

ActAct PurposePurpose When DueWhen Due Rule(s) Rule(s)

Request for Request for Production of Production of Documents and Documents and Things and Entry Things and Entry to Landto Land

To inspect To inspect documents documents (writings, photos, (writings, photos, data collections, data collections, etc.) and land to etc.) and land to gather evidence.gather evidence.

Federal: After Federal: After Parties’ 26(f) Parties’ 26(f) Planning Planning Meeting.Meeting.

Mass.: Anytime Mass.: Anytime after filing.after filing.

FRCP 26(d), FRCP 26(d), 34(a) and 34(a) and (b)(b)

MRCP 26(d),MRCP 26(d),

34(a) and 34(a) and (b)(b)

Response to Response to Request for Request for ProductionProduction

Within thirty Within thirty days after days after service of service of request. request. Objection waived Objection waived if no written if no written responses responses served.served.

FRCP 34(b)FRCP 34(b)

MRCP 34(b)MRCP 34(b)

Procedure for Requesting ProductionProcedure for Requesting Production

1.1. Initial StepsInitial Steps Decide what to requestDecide what to request Determine what resources will be necessary to handle and Determine what resources will be necessary to handle and

analyze the requested informationanalyze the requested information Arrange for time, place, and manner of inspection and Arrange for time, place, and manner of inspection and

copying requested informationcopying requested information

2.2. Draft the Request for Production and Inspection (Exhibit Draft the Request for Production and Inspection (Exhibit 9:1)9:1)

3.3. Serve the Request for Production and InspectionServe the Request for Production and Inspection

4.4. Assist at the Production, Examination, or InspectionAssist at the Production, Examination, or Inspection

5.5. Analyze the Documents Produced by the OpponentAnalyze the Documents Produced by the Opponent

Preparing for ProductionPreparing for Production

1.1. Initial Steps (pages 358-60)Initial Steps (pages 358-60)

2.2. Locate Documents/Computer DataLocate Documents/Computer Data

3.3. Pull Files and Documents and Log (Exhibit 9:3)Pull Files and Documents and Log (Exhibit 9:3)

4.4. Screen Pulled Files and Documents (Exhibit 9:4)Screen Pulled Files and Documents (Exhibit 9:4)

5.5. Use a Standardized Numbering System (pages 364-5)Use a Standardized Numbering System (pages 364-5)

6.6. Have the Attorney Review the DocumentsHave the Attorney Review the Documents

7.7. Extract Privileged DocumentsExtract Privileged Documents

8.8. Have Documents CopiedHave Documents Copied

9.9. Prepare Documents for ExaminationPrepare Documents for Examination

10.10. Retrieve the DocumentsRetrieve the Documents

11.11. Return the Documents and Retain IndicesReturn the Documents and Retain Indices

Key Term: Redaction

The process of editing out irrelevant or privileged information from the text of a document.

Procedure for ProductionProcedure for Production

1.1. Initial Steps – Outline:Initial Steps – Outline: What documents or information responsive to the request What documents or information responsive to the request

have been located have been located Any objection(s) to the request and reasons for objection(s)Any objection(s) to the request and reasons for objection(s) The form(s) in which the information is to be producedThe form(s) in which the information is to be produced Any differences or concerns to be negotiated with the Any differences or concerns to be negotiated with the

opponentopponent The process for delivering the information, etc. The process for delivering the information, etc.

2.2. Draft the Response to the Request for Draft the Response to the Request for Production and Inspection (Exhibit 9:1)Production and Inspection (Exhibit 9:1)

3.3. Assist at the Production, Examination, or Assist at the Production, Examination, or InspectionInspection

Discovery Rules Governing Medical ExamsDiscovery Rules Governing Medical Exams

ActAct PurposePurpose When DueWhen Due Rule(s) Rule(s)

Motion for Order Motion for Order to Submit to to Submit to Physical or Physical or Mental ExamMental Exam

To require a party To require a party to submit to exam to submit to exam when condition in when condition in question (injury, question (injury, emotional emotional distress, other) distress, other) relates to cause relates to cause of action or of action or damages.damages.

Federal: After Federal: After Parties’ 26(f) Parties’ 26(f) Planning Planning Meeting.Meeting.

Mass.: Anytime Mass.: Anytime after filing.after filing.

FRCP 26(d), FRCP 26(d), 35(a)35(a)

MRCP 26(d),MRCP 26(d),

35(a)35(a)

Procedure for RequestingProcedure for RequestingPhysical and Mental ExaminationPhysical and Mental Examination

1.1. Set up the ExamSet up the Exam

Contact the Physician to discuss purpose of exam Contact the Physician to discuss purpose of exam and method of paymentand method of payment

Schedule an appointment and provide information to Schedule an appointment and provide information to examineeexaminee

2.2. Draft the Motion for Compulsory Physical Draft the Motion for Compulsory Physical Examination, if required Examination, if required (Exhibit 9:6)(Exhibit 9:6)

3.3. If Client is subject to Exam, provide proper If Client is subject to Exam, provide proper notification notification (Exhibit 9:7)(Exhibit 9:7)

Reviewing and InterpretingReviewing and InterpretingMedical RecordsMedical Records

1.1. Resources for medical terminology and Resources for medical terminology and abbreviationsabbreviations

Physician’s Desk ReferencePhysician’s Desk Reference

Paralegal Medical Records ReviewParalegal Medical Records Review

2.2. Mini-Guide for Interpreting Medical Records Mini-Guide for Interpreting Medical Records (Appendix D)(Appendix D)

Discovery Rules Governing AdmissionsDiscovery Rules Governing Admissions

ActAct PurposePurpose When DueWhen Due Rule(s) Rule(s)

Request for Request for Admission(s)Admission(s)

To get opponent To get opponent to admit to to admit to certain facts so certain facts so they do not have they do not have to be proven at to be proven at trial by separate trial by separate evidence.evidence.

Federal: After Federal: After Parties’ 26(f) Parties’ 26(f) Planning Planning Meeting.Meeting.

Mass.: Anytime Mass.: Anytime after filing.after filing.

FRCP 36(a)FRCP 36(a)

MRCP 36(a)MRCP 36(a)

Answer or Answer or Objection to Objection to Request for Request for Admission(s)Admission(s)

Within thirty Within thirty days after days after service of service of request.request.

FRCP 34(b)FRCP 34(b)

MRCP 34(b)MRCP 34(b)

Procedure for RequestedProcedure for RequestedAdmission(s)Admission(s)

1.1. Prepare the Request for AdmissionPrepare the Request for Admission

Checklist (Page 378)Checklist (Page 378)

Form of Request (Exhibit 9:8 – Federal Form 25)Form of Request (Exhibit 9:8 – Federal Form 25)

2.2. Procedure Procedure (Page 377)(Page 377)

3.3. If Client is subject to requested to provide If Client is subject to requested to provide admission(s), note procedure admission(s), note procedure (Pages 379-80)(Pages 379-80) and and prepare response prepare response (Exhibit 9:9)(Exhibit 9:9)

Compelling DiscoveryCompelling DiscoveryMotions, Orders and SanctionsMotions, Orders and Sanctions

Objections to Discovery and Objections to Discovery and Remedies Remedies (Page 381)(Page 381)

Motions to CompelMotions to Compel

– Form of Motion Form of Motion (Exhibit 9:10)(Exhibit 9:10)

– Affidavit in Support of Motion Affidavit in Support of Motion (Exhibit 9:11)(Exhibit 9:11)

Orders and Sanctions Orders and Sanctions (Page 382)(Page 382)

Rules Governing Compelling DiscoveryRules Governing Compelling Discovery

ActAct PurposePurpose When DueWhen Due Rule(s) Rule(s)

Motion to Motion to Compel Compel DiscoveryDiscovery

To get court to To get court to order party to order party to provide provide discovery.discovery.

On reasonable On reasonable notice to all notice to all parties and all parties and all persons affected persons affected and after and after attempt to attempt to resolve.resolve.

FRCP 37(a) FRCP 37(a) and (d)and (d)

MRCP 37(a) MRCP 37(a) and (d)and (d)

Motion for Motion for Protective OrderProtective Order

To get order To get order permitting party permitting party to not respond to to not respond to certain aspects of certain aspects of discovery or to discovery or to prevent abuse of prevent abuse of discovery by discovery by opponent.opponent.

In reasonable In reasonable period of time period of time and after and after attempt to attempt to resolve.resolve.

FRCP 26(c)FRCP 26(c)

MRCP 26(c)MRCP 26(c)

Rules Governing Compelling Discovery Rules Governing Compelling Discovery (cont’d)(cont’d)

ActAct PurposePurpose When DueWhen Due Rule(s) Rule(s)

Motion to Motion to Enforce Enforce Subpoena Subpoena

To require person To require person to appear and/or to appear and/or produce produce documents for documents for examination.examination.

Any time after Any time after objection to objection to subpoena is subpoena is made and upon made and upon notice to person notice to person commanded to commanded to produce.produce.

FRCP 45(c)FRCP 45(c)(2)(B)(2)(B)

MRCP 37(a)MRCP 37(a)

Objection to Objection to Subpoena for Subpoena for Production and Production and InspectionInspection

To change or stop To change or stop the enforcement the enforcement of subpoena.of subpoena.

Before time for Before time for compliance with compliance with subpoena or subpoena or within 14 days within 14 days after service of after service of subpoena.subpoena.

FRCP 45(c)FRCP 45(c)(2)(B)(2)(B)

MRCP 26(c)MRCP 26(c)

The Freedom of Information ActThe Freedom of Information Act(FOIA)(FOIA)

Authority: 5 U.S.C. § 552.Authority: 5 U.S.C. § 552.

Scope: Applies only to government agencies Scope: Applies only to government agencies and officials.and officials.

Advantages:Advantages:– Not necessary to file an actionNot necessary to file an action– Prerequisite of relevancy doesn’t applyPrerequisite of relevancy doesn’t apply– Access available to anyone with Access available to anyone with bona fidebona fide request request– Not restricted to information from a partyNot restricted to information from a party

Procedure and Limits Procedure and Limits (Pages 386-7)(Pages 386-7) Form of Request Form of Request (Exhibit 9:13)(Exhibit 9:13)

End ofDiscovery: Document Production and Control, Medical Exams, Admissions, and Compelling

Discovery

End ofDiscovery: Document Production and Control, Medical Exams, Admissions, and Compelling

Discovery

                                    

QUINCY COLLEGEQUINCY COLLEGEParalegalStudies ProgramParalegalStudies Program

Litigation and Procedure

Trial Preparation and Trial:Demonstrative Evidence

Litigation and Procedure

Trial Preparation and Trial:Demonstrative Evidence

Definition of Demonstrative EvidenceDefinition of Demonstrative Evidence

A depiction or representation of A depiction or representation of

something, such as a photo of a something, such as a photo of a

scar or a diagram of the accident scar or a diagram of the accident

scene.scene.

Purpose of Demonstrative EvidencePurpose of Demonstrative Evidence

Studies have shown that:Studies have shown that: Jurors retain only 10% of what they Jurors retain only 10% of what they

hearhear, but that…, but that… Jurors retain as much as 87% of Jurors retain as much as 87% of

what they what they seesee!!

Purpose of Demonstrative EvidencePurpose of Demonstrative Evidence(cont’d)(cont’d)

In other words…In other words… A picture is worth a thousand words.A picture is worth a thousand words.

Forms of Demonstrative EvidenceForms of Demonstrative Evidence

In-court Demonstrations and Simulations, Animations, and Videos

Photographs, Slides, andReplicas

Models and Diagrams Charts, Graphs and Timetables

Evidentiary ConcernsEvidentiary Concerns

Demonstrative Evidence must Demonstrative Evidence must clear three Foundational clear three Foundational Requirements…Requirements…

1.1. Authentication Authentication [FRE 901][FRE 901]

2.2. Representational AccuracyRepresentational Accuracy

3.3. IdentificationIdentification

Evidentiary Concerns Evidentiary Concerns (cont’d)(cont’d)

Demonstrative Evidence must Demonstrative Evidence must then pass three hurdles of then pass three hurdles of admissibility…admissibility…

1.1. Relevancy Relevancy [FRE 402][FRE 402]

2.2. MaterialityMateriality

3.3. CompetencyCompetency

Evidentiary Concerns Evidentiary Concerns (cont’d)(cont’d)

Demonstrative evidence must then Demonstrative evidence must then pass a final balancing test [FRE pass a final balancing test [FRE 403] under relevancy…403] under relevancy…

to determine whether the to determine whether the prejudicialprejudicial value of the evidence value of the evidence outweighs its outweighs its probativeprobative value. value.

NOTNOT “shock-and-awe” “shock-and-awe”

Technology for Demonstrative Technology for Demonstrative EvidenceEvidence

Preparation Tools include: Powerpoint (for slideshow presentations) InData Director Suite and Sanction II (for integration

of audio, video, and animations)

Courtroom Presentation Equipment may include:

LCD large-screen projector Movie screen Multifunction whiteboard TV monitors Document camera VCR DVD player Laptop

Preparation Tools include: Powerpoint (for slideshow presentations) InData Director Suite and Sanction II (for integration

of audio, video, and animations)

Courtroom Presentation Equipment may include:

LCD large-screen projector Movie screen Multifunction whiteboard TV monitors Document camera VCR DVD player Laptop

Demonstrative EvidenceDemonstrative Evidence

Questions?Questions?

AssignmentAssignment

Create for presentation in class some item of Demonstrative Evidence to illustrate or explain a fact or facts in evidence, or to recreate a thing or event, from the Forrester case.

Should be in the form of a Powerpoint presentation, graphic representation (at least 24” x 36”), mock-up, replica, or demonstration.

You must use a witness to introduce the evidence and provide authentication.

The presentation of your evidence should be no longer than 10 minutes in duration.

At its conclusion, the class (a.k.a. “the Jury”) will vote on the probative value and persuasiveness of your evidence.

Create for presentation in class some item of Demonstrative Evidence to illustrate or explain a fact or facts in evidence, or to recreate a thing or event, from the Forrester case.

Should be in the form of a Powerpoint presentation, graphic representation (at least 24” x 36”), mock-up, replica, or demonstration.

You must use a witness to introduce the evidence and provide authentication.

The presentation of your evidence should be no longer than 10 minutes in duration.

At its conclusion, the class (a.k.a. “the Jury”) will vote on the probative value and persuasiveness of your evidence.