Spoliation of Evidence in Tennessee: Intent v. Prejudice

What is it with drillers and spoliation of evidence cases?  First it was Cincinnati Ins. Co. v. Mid-South Drillers Supply, Inc. which is a Tennessee leading case on the subject.  And now, we have a new spoliation case with a different drilling company, Griffith Services Drilling, LLC v. Arrow Gas & Oil, Inc.   So, let’s drill down on this issue a bit, shall we? 

Griffith Services Drilling, LLC (Griffith Drilling) and its insurance carrier sued Arrow Gas & Oil, Inc. (Arrow) for $1.2 million in property damage caused by a fire.  On the day of the fire, an Arrow employee, Mr. Burress, delivered fuel to Griffith Drilling.  During the refueling, Burress walked away to converse with some of the Griffith Drilling employees.  Shortly thereafter, a Griffith Drilling employee yelled that fuel was spraying and a fire ignited.  When Burress moved the Arrow truck to get it away from the fire, the fuel nozzle broke off.  The next day, Burress took the broken nozzle to a retailer and traded it in for a new nozzle.  Griffith Drilling was not provided any notice of Arrow’s intent to replace the nozzle. 

After the fire and without notifying Arrow, Grifftih Drilling’s insurance carrier authorized clean up of the site and disposed of all evidence of the fire.  One month after the clean-up was completed, Griffith Drilling sent Arrow a notice of its intent to pursue a claim for the fire damage.  Suit was eventually filed and Arrow counterclaimed for breach of contract as Griffith Drilling had failed to pay for the fuel delivered to the site.   Thereafter, Arrow filed two motions: (1) a motion to dismiss for spoliation of evidence based on Griffith Drilling’s clean up of the site; (2) a motion for summary judgment on the breach of contract counterclaim.  The trial court granted both motions.  Griffith Drilling appealed alleging the trial court erred by granting both motions. 

The trial court granted the motion to dismiss based on Griffith Drilling’s clean up of the site.  Because Arrow had not been given advance notice of the clean-up, the trial court found that Arrow had lost the ability to investigate the cause of the fire.  As such, Arrow had lost its ability to mount a defense and no lesser sanction was appropriate.  The Court of Appeals began its analysis by reviewing Tennessee Rules of Civil Procedure 34 and 37 which authorize a court to impose a sanction for discovery abuses including spoliation of evidence.  The Court of Appeals’ analysis continued with a review of its prior decision in Cincinnati Ins. Co. v. Mid-South Drillers Supply, Inc..  Ultimately, the Court of Appeals distinguished Mid-South Drillers finding it significant that both Arrow and Griffith Drilling had destroyed evidence.  Griffith Drilling had cleaned up the site and Arrow disposed of the nozzle.  The nozzle was critical because Griffith argued the nozzle may have been defective which in turn caused the overflow leading to the fire.   Since both parties had destroyed evidence, the Court of Appeals concluded the trial court had abused its discretion in granting Arrow’s motion to dismiss as the sanction was too severe.  The Court of Appeals noted that if only one party had destroyed evidence then perhaps dismissal would have been the appropriate sanction.  Because the trial court’s grant of summary judgment was premised primarily on spoliation of evidence, the Court of Appeals reversed that ruling as well.  

This decision is interesting in that it seems to breath fresh life into some of the language in the 1991 decision of Thurman-Bryant Elec. Supply Co. v. Unisys Corp . In Thurman-Bryant, the court had stated: “[T]he trial judge has discretion to impose sanctions on a party for the destruction or loss of evidence. The severity of the sanctions, however, must necessarily depend upon the circumstances of each case, i.e., was the evidence lost negligently, inadvertently, intentionally, etc.”  In 2008, in the Cincinnati Ins. Co case, the Court of Appeals reasoned that intent was irrelevant. 

In other words, regardless of whether the evidence was destroyed inadvertently or intentionally, the court could dismiss the case or strike an answer if either party had been severely prejudiced in their ability to prosecute or defend the case and a lesser remedy would be inadequate.  Without question, the issue of spoliation of evidence is fact-specific, but it seems to me the inquiry should remain prejudice and not intent.  The Court of Appeals quoting of the Thurman-Bryant decision appears to re-open the door on intent and will likely cause litigants to have to chase down yet another rabbit during discovery.  

So, from a moral standpoint, intent to destroy evidence is very important.  And such might be relevant in a claim for punitive damages.  But in the normal civil case, is key issue is one of prejudice: did the loss of evidence materially affect the ability of the opposing party to bring (or defend) a civil claim?  If the answer is yes, prejudice is present and the appropriate sanction must be entered.

Discovery of Information from Facebook Accounts in Personal Injury Cases

A Florida appellate court has recently restricted largely unfettered discovery from the Facebook account of a personal injury plaintiff who was filing suit because of injuries to her minor son.  She also asserted her own claim for loss of parental consortium. 

Root v. Balfour Beatty Construction LLC, 2014 WL 444005 (Fl. D.C.A. 2nd Feb. 5, 2014)  Defendant served written discovery that sought access to social media accounts. The appellate court quashed an order permitting extensive discovery and suggesting that in camera review may be necessary to protect the privacy rights of the plaintiff. The opinion cites several cases and a recent article about social media discovery.


Plaintiff's Claim of Damages for Pain and Suffering Do Not Open Door to a Rule 35 Psychological Examination

The Montana Supreme Court has ordered that a trial court may not order a Rule 35 psychological examination of a personal injury plaintiff who has asserted a typical pain and suffering claim.

In Lewis v. 8th Judicial District,  OP 12-0401 (Mont. S. C. Sept. 11, 2012) Lewis brought a claim for damages arising after she hit by a car while crossing the street as a pedestrian.  Lewis did not claim damages for any mental or psychological disorder or injury due to the accident, nor did she claim that a pre-existing mental condition was exacerbated by the accident or assert an independent tort claim for negligent infliction of emotional distress. Rather, she made only a general claim for "emotional pain, suffering and anxiety" associated with her physical injuries from the accident.

Lewis maintained that the motor vehicle/pedestrian accident is solely responsible for her current and continuing issues with pain. However, a physician who examined Lewis on behalf of State Farm questioned whether her chronic pain may be caused or exacerbated by her preexisting mental health issues.

Lewis' uninsured motorist carrier, State Farm, sought and received a court-ordered Rule 35 psychological examination.  Lewis sought appellate court review of the trial court's order,  

The Montana Supreme Court held that "constitutionally-based privacy concerns [under the Constitution of the State of Montana] require that Rule 35 examinations be ordered only when the party to be examined has put his or her physical or mental condition at issue, and when there is good cause for the examination."  The court then followed the of the federal courts interpreting a similar provision, saying as follows:

In applying Fed. R. Civ. P. 35, “[m]ost cases in which courts have ordered mental examinations pursuant  to Rule 35(a) involve something more than just a claim of emotional distress.” Turner v.  Imperial Stores, 161 F.R.D. 89, 93 (S.D. Ca. 1995). The majority of federal courts  “recognize that a mental exam is warranted when one or more of the following factors are  present: (1) a tort claim is asserted for intentional or negligent infliction of emotional  distress; (2) an allegation of a specific mental or psychiatric injury or disorder is made; (3) a  claim of unusually severe emotional distress is made; (4) plaintiff intends to offer expert  testimony in support of [a] claim for emotional distress damages; and/or (5) plaintiff concedes that her mental condition is in controversy within the meaning of Rule 35.”  Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551, 554 (N.D. Ga. 2001).

Under the circumstances set forth above, the court concluded that a Rule 35 psychological examination was not appropriate and ordered the trial court to set aside its order. 



Will I Go To Jail For Lying on Interrogatory Answers?

I am in a lawsuit and had to answer interrogatories.  I didn't tell the truth about some things and the other side found out about it.  Can I get sent to jail for not tellling the truth?

There is a risk of jail or a fine because interrogatories are answered under oath and lying under oath is perjury.  However, I am unaware of any person actually having been jailed for not telling the truth in answers to interrogatories.

A more realistic risk is that the trial judge may sanction you (he or she would have the right to dismiss your case or, if you were sued, strike the answer in the case and enter judgment against you.)   Lesser sanctions would include telling the jury what you did, awarding attorneys fees against you, and other penalties.  Your mistake will also hurt your credibility with the judge and jury.

It is essential that truthful answers be given under oath, whether in response to interrogatories or when giving oral testimony.  Even if criminal penalties are not imposed lies, and even mistakes, can hurt your case.


Connecticut Court Sets High Bar for Reversal After Proof of Discovery Misconduct

What burden should be placed on a party seeking a new trial if the losing party discovers that the winning party engaged in deliberate discovery misconduct?  In Duart v. Dep't of Correction,  No. 18476 (Conn. Jan. 24, 2012), the Connecticut Supreme Court  said  the movant must establish the following:

(1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a reasonable probability that the result of the new trial will be different.

A‘ ‘reasonable probability’ ’’ means ‘‘'a probability sufficient to undermine confidence in the 'outcome’’  or, in other words, that ‘'the favorable evidence could reasonably be taken to put the [whole case in such a different light as to undermine confidence in the verdict.'’"  [Citations omitted.] 
The plaintiff in the case sought a lesser standard, saying that she should only have to prove "that the misconduct substantially interfered with [her] ability fully and fairly to prepare for, and proceed at, trial.’’  The Court rejected that argument, saying that 
Not requiring the movant to prove a different result would invite endless litigation and deplete judicial resources. Given the breadth of discovery in modern trial practice, it is inevitable that the movant could find some fault with the other party’s compliance with broadly phrased discovery requests. If we obliged the nondisclosing party to prove harmlessness every time the moving party claimed that the nondisclosure constituted misconduct, we would impose an insupportable burden on the nonmoving party to disprove amorphous assertions, as in the present case, that the ‘‘entire case would have gone differently . . . .’’ Requiring a showing of a different result serves as a means of differentiating those cases in which the nonmoving party’s alleged misconduct materially affected the resolution of the underlying case—and in which, accordingly, the increased burden and expense is thereby warranted—from those cases in which re-litigation would be a pointless exercise.
It is important to note that the Court never reached the question of whether there was deliberate discovery misconduct by the defendant.  

New York Court Limits Access to Facebook Data

A New York Appellate Court has ruled in Patterson v. Turner Construction that a defendant in a personal injury case does not have an unfettered right to access the plaintiff's Facebook account.

Instead, the defendant can seek only to that which is “relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”

The appellate court reversed a trial court order which "granted defendants’ motion to compel an authorization for all of plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived."

According to Eric Turkewitz, author of the New York Personal Injury Law Blog, this that it trial judges

see fit to grant a request for Facebook or similar records, the judge will be forced to do in camera reviews of potentially voluminous records comprising all manner of notes that might come from Facebook, My Space, private blogs, Twitter,  emails, texts and other places. The digital age has spawned an extraordinary boatload of information that courts will have to sift through when demands are made by overeager lawyers hoping to stumble upon some smoking gun.

And what does that mean?  In Eric's opinion, that means that trial judges are going to require that there is a "factual predicate" to make the demand,  a showing required by in an opinion by a New York appellate court in McCann v. Harleysville Ins. Co.

This is only fair.  No one - plaintiff or defendant - puts his or her life up for total inspection when involved in a Tennessee personal injury case,  medical malpractice  case, or any other kind of dispute.  People - particularly young people - put lots of information on social media sites (way too much, in my opinion) and there is no reason to give an adverse party the wholesale right to all of that information.

Thanks, Eric, for sharing these cases and your thoughts with us on this important topic.


Discovery of Confidential Settlement Agreements

The Fourth District Court of Appeals for Florida has ruled that a non-settling defendant cannot obtain a court order forcing disclosure of confidential settlements between the plaintiff and settling defendants.

Plaintiffs were involved in an auto accident that was allegedly caused  by tire  failure.   They sued  the car manufacturer,  the  tire manufacturer,  the  car  dealer,  and   Wal-Mart  (the tire dealer and installer).  Three  of  the  defendants  entered  separate confidential  settlement  agreements after a mediation.   Wal-Mart  did not settle and sought discovery of the confidential settlement agreements.  The trial court denied the request, saying that given the fact that joint and several liability had been abolished in Florida the settlement amounts were not relevant.
The Court of Appeals affirmed, saying
Wal-Mart  cannot  show  that  discovery  of  the  settlement amounts  is  necessary  to  determine  entitlement  to  set-off;  it  h a s   not shown  that  the  denial  of  this  discovery  will  eviscerate  its  defense. At trial, Wal-Mart  can ask   the   fact-finder  to  determine  its  percentage  of fault.  It  does  not  need   the   settlement  information  to  show  that  the claims  arise  from  the  same  injury.   The  settlement  information  is  not  admissible or likely to lead to the discovery of admissible information.
This is the correct result.  If confidential settlements are to be permitted at all (and there are sound reasons why they should not be) then a confidential settlement should be, well, confidential.  A non-settling defendant should not be able to trump the terms of the private agreement, especially when the information they would gain has nothing to do with its ability to defend its case.
The case is Wal-Mart Stores, Inc. v. Strachan, No. 4D11-253 (FL. App. 4th Dis. Oct. 12, 2011).

Can You Wing It At A Deposition?

Evan Shaeffer wrote a book called Deposition Practice Tips.  Certain excerpts from the book appear here

I want to focus on Section 1.111,  which Evan titled "Can You Wing It At A Deposition?"

Here, in bold print,  is his work:



Can you wing it at a deposition? Undoubtedly, you can. When depositions don’t give you butterflies anymore, it can give you some pleasure to know that you can step into a conference room and conduct a complete deposition barely giving a thought to preparation.

What are the dangers of winging it? While style over substance can get lots of lawyers through depositions, “winging it” is never a good idea. If you are merely going through the motions, which is the whole point of winging it, you are not adding value to the case. It’s not a good way to lay the foundation for trial or settlement.

Before winging your next deposition, here are some questions to ask yourself:

  • What are the goals of the deposition? Are you merely gathering information or can you also get helpful admissions from the witness? How do you plan to achieve your goals?

  • Do you plan to exhaust the witness’ memory on certain issues? Which ones? Why these issues and not others? When you are finished, will the witness really be pinned down, or have you left some doors open for him to wiggle through later?

  • Have you reviewed the pleadings? If not, why not? Have you looked at the discovery responses and documents? Which ones do you plan to use at the deposition, and why?

  • How is the witness going to fit into your plan for trial? Have you even thought about trial? How will the witness support or detract from your legal claims or defenses?

  • How can use the deposition in motions before trial? Have you thought about the ways you’ll use the deposition in other depositions? Have you thought about the ways you’ll use the deposition at trial?

No matter how memorable your deposition style, there’s simply no substitute for thoughtful preparation.

Depositions are the most important part of the pretrial process.  If the deposition is important enough to take it is important enough to spend the time necessary to prepare for it.

It is very easy to say to yourself, "I have taken hundreds of depositions like this one.  I can just drop in, get started, and it will be fine."   And with that level of experience in that type of deposition, you might be able to take a "B" deposition.  But to take an "A" deposition, you need to thoroughly prepare.

And, if you don't have substantial experience in taking a particular type of deposition, you will not manage a "C" without substantial work.

No matter what  grade you received in your "Litigation Skills" class.





Mississippi Supreme Court Strikes Jury Verdict for Plaintiff Because of Failure to Supplement Expert Witness Disclosure

 Plaintiff's accident reconstructionist (Webb) in an auto defect case was deposed about his proposed testimony.  Thereafter, Webb signed an errata  sheet that changed four of the variables he used to make his calculations.   Among the changes were a change in the angle of the subject vehicle from 22 degrees to 44 degrees and an increase in the closing speed of the vehicle from 68 miles per hour to 78 miles per hour.  He said these changes did not alter his ultimate conclusion  on the change of velocity (delta-v) experienced by the vehicle occupants (35 miles per hour).  The plaintiff did not supplement interrogatory responses concerning the expert's testimony but simply sent the errata sheet to the defense.

The defense denied receiving the errata sheet.  The defense expert testified that the delta-v was between 55 and 67 miles per hour.  All parties agreed that a crash is not survivable with a delta-v in excess of 50 miles per hour.

At trial the expert said he completed the errata sheet because he realized after his deposition that he had made some mistakes in his analysis.  He did not claim that the court reporter made an errors or that the changes were made to clarify his testimony.

The Mississippi Supreme Court held that the trial judge erred by not excluding the testimony of the expert.  It said as follows:

Even if Hyundai did receive the errata sheet, simply giving the defendant this document did not relieve the plaintiffs of their duties under Mississippi Rule of Civil Procedure 26(f). The purpose of an errata sheet is to correct scrivener’s errors or provide minor clarification; it is not a means of making material, substantive changes to a witness’s testimony. See e.g., Garcia v. Pueblo Country Club, 399 F.3d 1233, 1242 n.5 (10th Cir. 2002) (“A deposition is not a take home examination.”) If a witness changes his testimony in a manner that conflicts with prior discovery responses, the sponsoring party has a duty under Rule 26(f) seasonably and formally to amend orsupplement the response. Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d 911, 916 (Miss. 2002). This is the responsibility of the party or parties sponsoring the witness, not the responsibility of the witness.

What about the argument that the changes on the errata sheet did not alter the expert's opinions - the "no harm no foul" argument?   The Court said as follows:

The plaintiffs argue that Webb’s changes were not material because they did not alter his opinion that, had the car not separated, the occupants would have experienced a delta-v of only thirty-five miles per hour. We disagree. The changes in Webb’s calculations were material changes because they were essential components of the basis for his opinion. When Hyundai attempted to cross-examine Webb about his calculations, Webb referred to his errata from Webb’s testimony that the figures on the errata sheet were important to his calculations. Moreover, when Hyundai’s experts performed crash testing, they used the figures given by Webb in his deposition in an attempt to refute Webb’s testimony. When Webb changed his calculations, the crash test using Webb's initial calculations lost relevance.

In conclusion, the Court said that "neither these plaintiffs nor any other party litigant may rely on a witness's notations on a deposition errata sheet as a substitute for formal and timely supplementation."   The Court then reversed a jury verdict for the plaintff and ordered a new trial.

Some may suggest that this opinion is yet another example of a conservative court bending over backwards to help a defendant escape a jury verdict.  I doubt it.  The author of the opinion was Justice Jim Kitchens, a friend of mine for over 20 years.  Justice Kitchens is a former criminal defense and plaintiff's lawyer and is not the kind of person who would seek out a way to reverse a jury verdict to punish a plaintiff or plaintiff's lawyer.  I know him to be the kind of person who "calls 'em as he sees them," and he obviously believes that the duty to supplement responses to discovery is one that should be taken seriously.  He - and the entire Court - have sent a clear signal that the duty to supplement applies to all litigants.

The case is Hyundai Motor America v. Applewhite,  No. 2008-CA-01101- SCT (Miss. S. C. 2/10/2011).

Effective Use of Depositions at Trial

Winning Trial Advocacy Tips has an excellent post on how to improve the reading of depositions at trial.

An excerpt:

4. Tab the appropriate pages.  Just like on the radio, you want to prevent the courtroom from filling with “dead air.”  When your witness is flipping through pages of the transcript, trying to find what portion he’s supposed to read next, it breaks the flow of your presentation and gives the jurors’ minds an opportunity to wander away.  Prevent “dead air” by tabbing the witness’s transcript, so he clearly understands which portion to flip to next.  Combined with the highlighting, this little bit of extra effort will make it much easier for your witness to smoothly present the transcript.


Judge Calls Down Lawyers For Deposition Misconduct

All lawyers know that judges don't like discovery disputes, and some lawyers take advantage of that by violating the rules at depositions.

United States Magistrate Peggy A. Leen entered this Order when confronted with lawyers who ignored the rules.  An excerpt:

The exchanges related in excruciating, repetitive detail in the moving and responsive papers and their attachments were painful to read. If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times:

I will not make speaking, coaching, suggestive objections which violate Rule 30(c)(2). I am an experienced lawyer and know that objections must be concise, non-argumentative and non-suggestive. I understand that the purpose of a deposition is to find out what the witness thinks, saw, heard or did. I know that lawyers are not supposed to coach or change the witness’s own words to form a legally convenient record. I know I am prohibited from frustrating or impeding the fair examination of a deponent during the deposition. I know that constant objections and unnecessary remarks are unwarranted and frustrate opposing counsel’s right to fair examination. I know that speaking objections such as "if you remember," "if you know," "don’t guess," "you’ve answered the question," and "do you understand the question" are designed to coach the witness and are improper. I also know that counsel’s interjection that he or she does not understand the question is not a proper objection, and that if a witness needs clarification of a question, the witness may ask for the clarification.
Although these papers, and the conduct they relate, make me feel like a school marm scolding little boys, I am the judge whose duty it is to decide this motion. Accordingly, Mr. Kossack and Mr. Cannon are admonished for engaging in conduct which I know you know violates Rule 30(c)(2). You are better men and better lawyers than the conduct in which you have engaged illustrates.

A fine arrow for the trial lawyer's quiver.  Thanks to Trial Ad Notes for advising me about the opinion.


CA Court Says Witness Interviews Not Privileged Work Product

The March 8, 2010 edition of the Daily Recorder reports that a divided California appellate court has ruled that witness statements recorded or taken in writing by attorneys or their representatives aren't privileged work product and, therefore, are open to discovery.  The dissenter ruled that the statements were qualified work product, which means that they are undiscoverable unless a court determines that denial of discovery would unduly prejudice the opposing party.  

The case is Coito v. Superior Court (State of California) , 10 C.D.O.S. 2697 (  5th Dis. Cal. Ct. App. March 4, 2010).  Here is the opinion.

Here is a nice statement of the holding taken directly from the opinion:


We agree with petitioner‘s argument that witness statements are classic evidentiary material. They can be admitted at trial as prior inconsistent statements (Evid. Code, § 1235), prior consistent statements (id., § 1236), or past recollections recorded (id., § 1237). Yet, if the statements are not subject to discovery, the party denied access to them will have had no opportunity to prepare for their use. Moreover, a witness statement could contain information favorable to the party denied access, who otherwise could use the statement to refresh the witness‘s recollection, impeach the witness‘s testimony, or rehabilitate the witness after cross-examination. These impacts on the quest for truth simply are not justified by the policy of encouraging lawyers to prepare their cases for trial or the policy of protecting the diligent attorney from others who would take advantage of his or her industry. (§ 2018.020.)
―The purpose of the [work-product] doctrine is to prevent incompetent counsel from taking unfair advantage of his adversary‘s efforts in preparation for trial, not to suppress relevant testimony which happened to have been obtained by the opposition.‖ (Jasper Construction, Inc. v. Foothill Junior College Dist. (1979) 91 Cal.App.3d 1, 16.)
For those reasons, we choose to follow the weight of authority and hold that written and recorded witness statements, including not only those produced by the witness and turned over to counsel but also those taken by counsel, are not attorney work product.


Suggestion for Expert Witness Disclosure Language in Scheduling Orders

         One of the battles in the preparation of scheduling orders is the deadlines for disclosure of expert witnesses. The defense always wants the plaintiff to go first, and wants an additional 30 or 60 or even 90 days to disclose its experts. Sometimes, the defense wants to depose the plaintiff’s experts before disclosing its own experts, a ridiculous position that should be rejected by every trial judge. Simultaneous disclosures are rarely ordered by judges in Tennessee.

          I am involved in a case in federal court in West Virginia and learned that it has an eminently fair way of resolving the problem of the timing of expert witness disclosures. Here is the language used in the West Virginia judge’s scheduling orders:

The party having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ___________. The party not having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ______________.

       Thus, because a plaintiff ordinarily has the burden of proof on liability, causation, and damages, plaintiff will have to disclose expert witnesses on these issues first. However, to the extent that the defendant asserts an affirmative defense (and thus assumes the burden of proof on that issue) the defendant has will have to disclose expert(s) on the affirmative defense at the same time the plaintiff discloses experts.

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Depositions of Expert Witnesses

What is your opponent going to do to prepare for your expert's deposition?  This article,  "The Opponent's Expert: Preparing for the Most Important Deposition in the Case,"  59 Fed'n Def. & Corp. Couns. Q.145 (2008), answers that question.

Preparing the Witness for Deposition - From the Perspective of the Defense

Evan Schaeffer at The Trial Practice Tips Weblog  tracked down an article titled "Preparing A Witness for a Successful Deposition" written by Matt Keenan, a defense lawyer with Shook, Hardy and Bacon in Kansas City.  

An excerpt:

In my 20-some years of working with company witnesses as part of the discovery process, I’ve learned that the prospects of a deposition can stress even the most accomplished corporate executive.

One way of lowering their level of anxiety is to give them mileposts to follow as they prepare. Something that’s easy to remember but useful. This article shares with counsel my system for witness preparation, with tips and tricks for a successful undertaking.

My approach is based on a simple acronym – PLEASE.

Keenan goes on to explain that P is for prepare; L is for listen; E is for exercise control; A is for accept the obvious; S is for stay in your area; and E is for emotion is acceptable.

This article is excellent - and will help plaintiff's lawyers know what to expect when walking into a deposition of a well-prepared witness.

There have been several posts recently on the subject on deposition preparation.  Why?  Because after one utilizes appropriate case selection techniques, no other aspect of pretrial preparation is more important to the success of the case than depositions. By "depositions" I mean to include the depositions of your opponents AND the deposition that will be taken of your client.   Those unwilling to put appropriate  time and effort into preparing for depositions would be advised to start writing wills.

Evan - thanks again for  the effort you have made to bring important information to the attention of the trial bar.  Your efforts are greatly appreciated.


"Preparing for the Video Deposition"

Yesterday I mentioned that James Publishing Company's website includes excerpts of certain of its books.  I thought that the excerpt I referred to yesterday was so valuable that it was worth another post, so here is an excerpt from Section 439 of  "How to Prepare for, Take and Use a Deposition" by Daniel P. Dain.

§439   Preparing for the Video Deposition

If your witness’ deposition is to be videotaped, additional preparation is generally in order. Unlike the standard stenographic record, a videotaped deposition captures the witness’s appearance, demeanor and testimony. Consequently, you may want to experiment with makeup, hair and clothing, in preparation for the deposition. You may also want to conduct a mock video deposition of your witness to not only familiarize your witness with the nature of the proceeding, but to graphically demonstrate what areas need correcting before the actual deposition. Often the witness’s review of his or her own performance is a much better aid in that witness’s preparation than all of your carefully drafted verbal admonitions.

Specific points should be reviewed with the witness about his demeanor and answering, analogous to testimony in the courtroom. With a deposition that is being only stenographically recorded, the visual aspects of the testimony, as contrasted to testimony at trial, need not be considered. However, with a videotape, the visual aspects of testifying become important. Consider the following checklist:

  1. Sit comfortably, but reasonably straight, both feet on the floor, hands on the table in front of you.

  2. Sit still. Everyone has their version of the meaning of a witness squirming, which might simply be occasional movement.

  3. Sit straight. Often, the more tired you become, the poorer your physical posture becomes and poor physical posture usually creates a poor impression. Having your feet flat on the floor helps to maintain good posture. (Make sure that you have a comfortable chair that is not unduly relaxing.)

  4. Look at the examiner when he or she is asking a question. However, if the camera is considered to be the jury, testimony directed to the jury is preferable. Juries are generally more receptive to answers given to them as opposed to a mere dialogue between the questioner and the witness. Depending upon the location of the camera, it may be advisable that the witness look at the camera when responding to the question. Remind the witness that you will insure that the camera angles will not unreasonably distort his or her physical ­appearance.

  5. Speak in your normal voice, but try to invoke reasonable gestures, inflections.

  6. Reading documents. Of course, you must take the time to read any document that is handed to you if you are going to be asked questions about it. However, try not to be unreasonably bent over the document. Instead, hold the document somewhat up. When you are not reading the document, switch your eyes back to the examiner. If the document has any length, ask if you can go off the record and read the document without the camera and lights on. Even if the request is denied, it may be of effect.

  7. Remind the witness to follow the same rules for a stenographically recorded deposition. However, long pauses between the ­question and answer, although generally not discernible in a stenographically recorded deposition, can, in a video deposition, give the appearance that the deponent is somewhat less than forthright in his or her testimony. While the witness should carefully consider each question before answering, the witness nonetheless should be cognizant that long delays can be misinterpreted by the trier of fact.


"Using A Checklist for Witness Preparation"

James Publishing Company's website includes excerpts of certain of its books.  Here is an excerpt from Section 433 of  "How to Prepare for, Take and Use a Deposition" by Daniel P. Dain.

§433   Using a Checklist for Witness Preparation

Some lawyers prefer to go through an extensive checklist of points for discussion with their witness. One benefit of using this approach is that it provides some assurance that you will not leave out an important point. One of the problems with this approach, and with any approach, is that your witness is only likely to recall and put into use a very few points. Whatever approach you choose, make sure that your emphasis is on your most important points because the others may fall by the wayside.

Consider discussing the following admonitions with your witness:

  1. Listen to the question. If you didn’t hear it, ask that it be ­repeated.

  2. Understand exactly what the question is. If you don’t understand, ask that the question be rephrased.

  3. Think about the question. Pause before you answer.

  4. Answer only the question and answer concisely—don’t volunteer. Your role is to answer only the question asked, not to volunteer what you think the examiner wants to know.

  5. Don’t guess or speculate. If you do not know the answer, the only truthful answer is “I do not know.”

  6. Answer only as to facts of which you have personal knowledge, unless asked for information given to you by other persons.

  7. If necessary, qualify your answer (“I am not totally certain.”).

  8. Ask for documents, if it would make testimony more accurate.

  9. Read carefully all documents given to you. Take your time.

  10. Do not get angry. Some lawyers try to cause you to lose your temper in the hope that you will not think clearly and will make incorrect statements.

  11. Do not feel you need to memorize any facts.

  12. Do not take any notes or documents to the deposition. Anything you take may be subject to discovery.

  13. Set your own pace—don’t let the speed of the examiner’s questions dictate the speed of your answers.

  14. Listen to objections—they may tell you why the question is tricky.

  15. Make each question and answer stand alone. If read out of context at trial, it should convey accurately your intended testimony.

  16. Do not testify as to what you assume occurred—only what you know occurred.

  17. Do not be reluctant to admit that you have discussed your deposition with a lawyer—there is nothing improper about that.

  18. Don’t try to hide embarrassing facts. If asked if you were fired, and you were, answer yes.

  19. A document says what it says—not what the examiner says that it says.

  20. Do not discuss the facts of your anticipated testimony with anyone else; it may create confusion as to what you know and what you have been told, and the discussions may be discoverable.

  21. Answer audibly, and not with nods or shakes of your head.

  22. Straighten out confusion.

  23. Give accurate estimates (time, speed, distance).

  24. Clarify multiple meanings. Beware of a question that assumes a fact. Watch out for alternative questions.

  25. Don’t chew gum.

  26. Don’t be defensive.

  27. Don’t lose your temper.

  28. Be courteous.

  29. Avoid wisecracking and joking.

  30. Don’t be reluctant to admit to discussions with your lawyer.

  31. Don’t answer questions about managing the lawsuit.

  32. Beware of the “have you told me everything” question.

  33. Tell the truth.

If this “long list” of rules is to have any meaningful impact on the witness, most of them need to be illustrated, and then practiced by the witness under sample questioning. Remember, however, most witnesses cannot and many should not attempt to remember more than a few key rules.


Is that Deposition Necessary?

I brought a couple posts from the Lean and Mean Litigation Blog  to your attention back in December.  These posts discussed the need of formulating a discovery plan before taking depositions.

Here is a related article titled "Mastering the Blind Cross-Examination" written by Mark A. Nuebauer.  This article questions the need to depose everyone and provides tips on cross-examining a witness who has not been deposed.

An excerpt: "To be effective, blind cross must have a specific goal. More often than not, each witness in a trial is intended to lay out a specific fact or a set of key facts that help provide the premise for that side’s case. Cross-examination should be a laser beam designed to attack that side’s contention of that fact or set of facts. In short, blind cross-examination should be a stiletto, not a sledge hammer attack."

In our last med mal trial we did not take the deposition of a single defense expert witness - and there were more than eight of them disclosed.  (I don't recall the exact number.  I am traveling and don't have access to my file.)  The decision not to depose these experts not only saved our client tens of thousands of dollars in court reporter and expert fees but also gave us the element of surprise at trial.  



ACTL Releases Report on Discovery

The American College of Trial Lawyers has released a report examining the role of discovery in the civil justice system.  Predictably, the report concludes that the system is in need of repair, but the proposed fixes are bound to create controversy. 

For example, here is one recommendation:  "Notice pleading should be replaced by fact-based pleading. Pleadings should set forth with particularity all of the material facts that are known to the pleading party to establish the pleading party’s claims or affirmative defenses."

The report is relatively short and thought-provoking.  Grab it and a nice glass a Cabernet Sauvignon, sit is a comfortable chair with your feet up, and enjoy.


New Rules Adopted by General Assembly

The Tennessee General Assembly has passed resolutions approving the rule changes proposed by the Tennessee Supreme Court.  The rule changes will be effective July 1, 2009.

Here is a brief summary:

  • Civil Procedure:  There are changes to 11 different rules or comments on rules  - Rule 1, 8, 12, 23, 34, 45, 51, 52, 55, 60 and 65.  Two of the most significant changes are (a) non-parties can be ordered to make property available for an inspection; (b) judges must state findings of fact and conclusions of law in non-jury trials.
  • Electronic Discovery:  A significant number of rules have been amended to incorporate specific rules concerning electronic discovery.  The new rules represent a substantial change in Tennessee law.
  • Evidence:  There are changes to 404, 703, 803 and 804.  The changes to Rule 703 and 803 are of particular importance to tort practitioners.
  • Appellate Procedure:  There are changes to Rule 13 (comment only) and 36; a new rule concerning mediation during an appeal is adopted as Rule 34.

The links will take you to the Order setting forth the rule changes.  I will discuss some of the more important changes in more detail during the coming weeks. 



E-Discovery Highlights

Kroll Ontrack, an company in electronic discovery and computer forensics business, has compiled a list of the 5 most important of the 138 reported electronic discovery opinions issued from Jan.1, 2008 until Oct. 31, 2008.  A full 25% of the cases address the issues of sanctions.

To read a summary of the 5 most significant cases go and Kroll OnTrack's analysis of the state of e-discovery click here.


Ruining Depositions - Part 3 of 3

Evan Schaeffer from St. Louis has two blogs, The Legal Underground and The Trial Practice Tips Weblog.  He has written three posts on the latter titled "15 Ways to Ruin a Deposition."  Here is his latest and last post (Part 3) on the subject.   Here is a link to Part 1 and Part 2.

A sample:   "Failing to incorporate your completed deposition into your overall trial plan. After a deposition has ended, do you add the transcript to a giant stack of depositions sitting on your floor? There are a number of other more sensible post-deposition steps you can take. You'll find seven of them here: 'Trial-Planning Steps to Take After a Deposition Has Ended.'"


More of "Ruining a Deposition"

Here is Part 2 of Evan Shaeffer's post called "15 Ways to Ruin a Deposition."  Evan writes "The Trial Practice Tips Weblog" and "The Legal Underground."   Here is Part 1.


Insurance Policies Limits Are Not Discoverable UPDATED

The Tennessee Supreme Court has just ruled that liability insurance policy limits are not discoverable in typical personal injury and wrongful death cases in Tennessee. 

Unlike the vast majority of states, our TRCP 26 does not mandate disclosure of limits.  The Court ruled that insurance policy information  " is not subject to discovery under Tennessee Rule of Civil Procedure 26.02 because it is neither admissible nor does it appear to be reasonably calculated to lead to the discovery of admissible evidence."

On the bright side the Court said this:

While we are constrained by both the language and the history of current Rule 26.02 from holding that information concerning the defendants’ liability insurance coverage is subject to discovery, we are convinced that the time has come to align Tennessee with the rules in forty-eight states and the federal rule in allowing discovery of this information.

The opinion in Thomas v. Oldfield, No. M2006-02767-SC-R11-CF (Tenn. 2/2/09) is not yet on the AOC website.  I will post a link when it is.

UPDATE  --   here is the link to the opinion


Ruining a Deposition

Evan Schaeffer at The Trial Practice Tips Weblog has started a three-part series titled "15 Ways to Ruin a Deposition."   Here is his first post on the subject.

The first tip?  Deposing someone who doesn't need to be deposed at all.


Summary of New FRE 402

Here is a summary of FRE 502 which came into effect on September 18, 2009.  The rule - which addresses the attorney client privilege and work product doctrine - is intended to provide increased clarity in this confusing area of the law.

The author explains that "[t]he rule establishes a presumption against subject matter waiver, resolve the issue of inadvertent disclosure, provides for confidentiality orders and supports party agreements, among other issues. "

Thanks to Federal Evidence Review.


Eye Witness Deposition Checklist

Paul Luvera's blog includes this great checklist for taking the deposition of an eye witness.

Paul makes the point that "lawyers must use a checklist for every deposition they take no matter how experienced there are.  If seasoned airplane pilots use checklists, lawyers should too.  It's too easy to get side tracked during a deposition and forget some area of questioning."

Thanks for sharing this, Paul.  It is a wonderful tool.




Deciding Who To Depose

Here are links to two interesting blog posts by Stewart Weltman in his "Lean and Mean Litigation Blog" on the subject of formulating a discovery plan before taking depositions.  The knee-jerk response is depose everyone, but as this author makes crystal clear that is not always the smart thing to do.

A sample:  "Rule No. 1 in developing a deposition program - you must have a clear conceptualization of what  you want your case in chief to look like at trial and you also must anticipate what you believe the other side's case is going to look like.   If you don't, then you are on a rudderless ship that will flounder aimlessly through discovery.  How can you possibly know what to ask if you don't have a clue (1) what you want your case to look like at trial and (2) what you believe the other side's case is going to look like?"

Thanks Stewart.

Part 1

Part 2



Failure to Supplement Discovery

Rule 37 of the TRCP makes exclusion of evidence the default sanction for failure to supplement.  The trial judge can impose a lesser or greater sanction.

In a recent  case in Arkansas the Court of Appeals reversed a jury verdict in favor of the plaintiff when the plaintiff failed to supplement answers to interrogatories concerning his medical treatment with a particular doctor.

In Moorehead v. Battles,  the court said this:

What to make of Dr. Thomas’s records in the case as a whole was Battles’s choice, not Morehead’s. But Battles never got to make that choice. This is precisely the bind that Rule 26(e)(1) aims to prevent. This error went deeper than Morehead’s credibility.  His failure to supplement deprived Battles of the opportunity to formulate his side of the case on the key issue—Morehead’s injuries—based on all the medical evidence before trial. This lost opportunity is also why Morehead is mistaken in his argument that a limiting instruction could have cured any prejudice here. Morehead’s failure to supplement his list of doctors has legal consequences: this constructive fraud entitles Battles to a new trial.


Read Case No. CA07-1176 here. 


FRE Rule 502 Becomes Law

The Congress has approved changes to the Federal Rules of Evidence, including the addition of Rule 502 dealing with  the waiver of attorney-client privilege and work product protection as a result of inadvertent or intentional disclosure to another party.

Click here for  the text of the rule as it appears in the Congressional Record (9/8/2008).

Thanks to Discovery Resources and Dennis Kiker of Fois Consulting for alerting me about the adoption of this rule.

By the way, some of you many wonder why I always link to other bloggers when I get an idea from them for a post to this blog.  I do so because there is an understanding among the blogging community that when you get an idea from post created by another blogger you give them credit for originating it.  See, e.g. Suite 101.com ("Be creative, don’t steal other people’s content.").  In short, I want to give credit where credit is due - it is the right thing to do.   Not doing so is simple plagiarism.


E-Discovery Resource

Kroll Ontrack has a searchable list of e-discovery cases from around the nation.

To access the list,  click here.


Deposition Questions

The NITA Blog has a very good post entitled "21 Questions to Consider When Starting A Deposition."

A sample:

7. Are you on any drugs or medications or alcohol that you think will interfere with your ability to answer my questions?

8. Is there anything else you are aware of that would keep you from giving full, complete, and accurate answers to the questions here today?

9. What will you do if I cut you off or interrupt your answer?

10. What will you do if you need to look at a document to answer a question?

11. What will you do if you realize an answer that you’ve given was wrong or inaccurate? Will you let us know right away?

Thanks to the Tennessee Law Blog.


E-Discovery Research

Do you have an e-discovery issue?  Look to this database, which has over 1000 cases on the issue from state and federal courts, for assistance.

Thanks to K&L Gates for compiling and maintaining this resource.


Court Says Plaintiff is Entitled to Have Her Deposition Videotaped

A trial judge in New Jersey has ruled that a plaintiff may insist that her discovery deposition be videotaped over the objection of the defense.

The judge ruled that "defense counsel’s objection is devoid of any specificity to constitute good cause. The Court does not wish to make light of any “burden” the video recording will place on defense counsel, but such burden does not rise to good cause, annoyance, embarrassment, oppression, or undue burden.13 It certainly does not justify denying Plaintiff the use of modern technology."  [Footnote omitted.]

Read the 21-page opinion here.


Videotaping of Rule 35 Exams

The Oklahoma Supreme Court has ruled that a plaintiff has a right to videotape a Rule 35 examination (often mistakenly referred to as an "independent medical exam"). 

The Court's conclusion:

"Our decision to allow an examinee to videotape a court-ordered independent examination was foreshadowed by our decision in McCullough v. Mathews, 1995 OK 90, ¶¶1-2, 918 P.2d 25. In McCullough we recognized that the broad language of 12 O.S. 2001 §32352allows the examinee to bring a third party representative to a court-ordered independent examination. We also determined that in addition to handwritten notes, audiotaping by the examinee, which was incorporated into the statute by the 2001 recodification of §3235,  would be allowed as a "condition" of the examination. While audio recording is capable of providing proof that the examination did not involve a malingering patient or a cursory examination, we now hold that a video recording may be a superior method of providing an impartial record of the examination. Accordingly, a party to a lawsuit who is required to submit to a medical examination pursuant to 12 O.S. 2001 §3235 is permitted to videotape the examination."  [Footnotes omitted.]

The case is Boswell v. Schultz, No 104840 (Ok. S.Ct. 12/12/07).  Read the opinion here.


Discoverability of Insurance Policy Limits

In Tennessee, the Supreme Court has an advisory commission that recommends changes in the rules of civil procedure, evidence and appellate procedure.  Proposed changes are circulated for public comment and then the court sends them to the legislature for approval.  The legislature can only vote the rule changes up or down, it cannot modify them.

However, the legislature has persuaded the court to withdraw proposed changes to the rules on several occasions.  The most frequent subject of objection has been a proposed change to Rule 26 of the Tennessee Rules of Civil Procedure which would permit the discovery of the existence and amount of liability insurance coverage.  Insurance companies, primarily Tennessee Farmers Mutual Insurance Company, opposes disclosures of insurance information.

Now the Tennessee Supreme Court is going to get the opportunity to determine whether to permit the discovery of insurance information by way of case law.  In Thomas v. Oldfield, No. M2006-02767-COA-R9-CV, (Tenn. Ct. App. Nov. 7, 2007) the intermediate court rejected a plaintiff's effort to discover insurance information.   The court held as follows:

"Informed by the plain meaning of “subject matter of the pending action” and the spirit and purpose of the rule as originally enacted, we do not view the liability insurance coverage in this case as coming within its scope because the information bears no relation to the issues before  the trial court. When the party seeking discovery has failed to state a connection between the  liability insurance information and the preparation of its case for trial, and when none is  otherwise apparent, that information falls outside the scope of discovery. "

There is no reason, absent historical precedent, that the courts permit the legislature to have any say whatsoever on what rules of procedure are adopted for use in our courts. 

This case will put the court on the hot seat.  Will it follow the majority rule and permit discovery of this information?  Or will it yield to the legislature?  Time will tell.

Read the decision here.


E-Discovery Article

Here is an interesting article written by Mark Berman that I found on Law.com.

The first few paragraphs:

"Electronic discovery, even more so than traditional paper discovery, offers the opportunity to burden unduly an opposing party with overbroad discovery requests, and three recent New York State court decisions have addressed over-reaching document requests seeking electronically stored information (ESI).

Responding to far-reaching requests for the production of e-mails and metadata, as well as electronic information contained on, among other things, hard drives, computer servers, backup tapes, voice mail and personal digital assistants (PDAs) can be very burdensome and extremely costly to the producing party.

Thus, as electronic discovery is becoming more prevalent in New York state practice, courts are taking note of these issues and are recognizing that certain situations do not justify the sometimes over-reaching requests that seek to obtain ESI, especially when requested from nonparties."


Middle District Expert Rule Criticized - Is It Dead?

The Federal Court for the Middle District of Tennesse has a local rule on  expert witness that has been criticized for decades.   The rule provides as follows

"Expert witness disclosures shall be made timely in accordance with any order of the Court, or if none, in accordance with Fed. R. Civ. P. 26(a)(2). Expert witness disclosure statements shall not be supplemented after the applicable disclosure deadline, absent leave of Court. No expert witness shall testify beyond the scope of his or her expert witness disclosure statement. The Court may exclude the testimony of an expert witness, or order other sanctions provided by law, for violation of expert witness disclosure requirements or deadlines. ..."

Rule 39(c)(6)(d).  Not all of the judges enforced the Rule.

At trial, the Court permitted the expert to read his or her statement.  On cross, the expert had to stay within the scope of his or her statement.

The Sixth Circuit Court of Appeals has reversed a judgment because the Court enforced the rule.  In Thompson v. Doane Pet Care Co.,  No. 05-5377 (Dec. 15, 2006) the Court said that the local rule was inconsistent with the Federal Rules of Civil Procedure, including Rule 89(a)(2),  which provides that "[a] local rule imposing a requirement of form shall not be enforced in a manner that causes a party  to lose rights because of a nonwillful failure to comply with the requirement."

Is the local rule dead?  It should be.  It is one thing to enforce the Rule 26 disclosure rule.  It is another to require everything to to be written out - including definitions of words, etc. - and then require the expert to read from the report which does little more than bore a jury to death.

Read the entire opinion here.

Rules Changes Are Designed to Make Them Easier to Read

The Federal Rules of Civil Procedure are being changed to make them more readable.  This post from Trial Ad Notes discusses the change and gives an example on how Rule 6 would be re-written.

All 250 pages of the proposed revisions may be found here.  The rules are still in the rule-making process and will not go into effect before December 1, 2007.

Colorado Opinion on Protective Orders

Defendant Farmers Insurance Exchange convinced the trial court that it should enter a protective order limiting Plaintiff's counsel ability to distribute documents produced in the litigation by the defendant and limiting Plaintiff's counsel's use of  Defendant's documents that Plaintiff's counsel obtained from other sources.  The later documents had been produced by the Defendant without a protective order in litigation in South Dakota.

The documents at issue were described as follows:  "The documents apparently contain information regarding 'incentive performance compensation plans' and the Colossus claims-handling system used by Farmers. Farmers explains in its brief that 'Colossus'is a proprietary computer tool created by Computer Sciences Corporation ('CSC'), and that Farmers’use of Colossus and related materials is limited by a licensing agreement and nondisclosure agreement with CSC. Such agreements with CSC are at least one reason why Farmers sought a protective order in this case."

The Colorado Supreme Court reversed.  It stated that "that the protective order entered by the district court is not authorized by C.R.C.P. 26(c) to the extent that it purports to place limits on the use of documents not acquired solely as a result of discovery in this case."  The Court analyzed the law interpreting its version of Rule 26 and said "that C.R.C.P. 26(c) applies only to documents or information obtained solely as a result of discovery in a pending case. It does not authorize restrictions on documents acquired outside of the discovery process in the pending case. "

The case is Jesse v. Farmer's Insurance Exchange, Case No. 05SA370 (Co. S. Ct. November 20, 2006).  Read it here.


Non-Disclosure of Witness Results in Reversal of Jury Verdict

Plaintiffs in Indiana had a $39 Million verdict reversed because of the failure to disclose the name of a witness.

Plaintiffs were injured in a car wreck with a  driver who was operating his vehicle under the influence of alcohol.  They sued the restaurant where the driver had been drinking alleging inter alia  that it served a visibly intoxicated patron (the driver)

Plaintiffs knew that a waitress from the restaurant thought the driver was visibly intoxicated but did not disclose her in answers to interrogatories.  The specific interrogatory at issue was as follows:

"State specifically each and every fact upon which you rely to support your allegation under I.C. § 7.1-5-10-15.5 that these Defendants, and each of them, provided alcoholic beverages to William J. Whitaker with actual knowledge that he was visibly intoxicated, and the names and addresses of those persons possessing knowledge of such facts."

The restaurant obviously knew the waitress and deposed her but she denied knowing that the driver was intoxicated.  Plaintiffs knew that when defendants called her at trial she would change her testimony on the stand and would say that she lied earlier in her deposition.  Plaintiffs did not supplement the interrogatory and disclose the name of the waitress.

The Indiana Supreme Court reversed the jury's verdict, saying:

"[W]e conclude that the plaintiffs' failure to identify [the waitress] as a person with knowledge of the relevant facts was a negligent if not intentional breach of its discovery obligations," the court said. "Subsequently, plaintiffs failed to supplement their response with the substance of her change in testimony. As these events unfolded, these omissions cascaded into a closing argument that materially misled the jury. The cumulative effect was misconduct prejudicing [the restaurant's] defense. …

"[T]he … persuasive point is that counsel for [the restaurant], based on [the waitress'] … deposition testimony, told the jury in opening statement that no witness establishing [the man's] visible intoxication would be produced and that [the waitress] would testify that he was not intoxicated. [The plaintiff's attorney] in closing pounded on the claimed 'embarrassing' conduct by [the restaurant's] counsel. [The waitress's] undisclosed change of story thus simultaneously destroyed not only [the defendant's] theory of the case but also its credibility with the jury. [The defendant] therefore credibly contends that its handling of the case would have been substantially different, and the damages, if not the liability, would have been materially different if plaintiff's counsel had discharged their obligations."

The case is  Outback Steakhouse v. Markley, No. 18S04-0602-CV-66. (Ind. S. Ct. Nov. 8, 2006.)  Read it here.

Recall that under Tennessee law the failure to supplement discovery results in a presumed sanction that the evidence will be excluded at trial, although lesser sanctions are available to the trial judge.  Rule 34A, T.R.C.P.

Discoverability of Materials Given to Expert Witnesses

The United States Court of Appeals for the Sixth Circuit has ruled that all material given to testifying expert witnesses must be disclosed, including attorney opinion work product materials.

The circuits have been split on this issue.  In Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC, Case No. 05-5754 (6th Cir. Aug. 17, 2006),  the court clarified the law in the Sixth Circuit.

The precise holding:  "The bright-line approach is the majority rule, represents the most natural reading of Rule 26, and finds strong support in the Advisory Committee Notes. Therefore, we now join the "overwhelming majority" of courts . . . in holding that Rule 26 creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts." (Emphasis added.)  Don't try to argue that whatever information you gave to the expert wasn't considered by the expert and therefore is not discoverable; the word "given" was deliberately chosen by the court to void that argument.

Read the opinion here.  The discussion of the discovery issue begins on page 14.

 Thanks to the Sixth Circuit Blog for directing me to the decision.

Breaking News: Supreme Court Bars Ex Parte Talks with Plaintiff's Doctors

The Supreme Court just issued its opinion in Alsip et al v. Johnson City Medical Center et al. More information on the opinion, holding that defense counsel may not participate in ex parte communications with a plaintiff's non--party treating physicians, is available over at our firm's medical malpractice blog. I am on the road right now, so commentary will follow later.

Colorado Opinion on Spoliation

The Colorado Supreme Court has issued an opinion in Aloi v. Union Pacific R.R.

This is the opening paragraph of the opinion: "Petitioner Frank Aloi brought a personal injury action against Union Pacific Railroad (UP). Prior to trial, UP destroyed documents relevant to the litigation. As a sanction for spoliation of evidence, the trial court instructed the jury it could draw an inference that the evidence contained in the destroyed documents would have been unfavorable to UP. The trial court gave the adverse inference instruction three times, one time interrupting a crossexamination to provide the instruction. The jury returned a verdict for Aloi, and UP appealed. The court of appeals reversed the trial court's judgment. The Supreme Court granted certiorari."

The holding? "We hold that the trial court did not abuse its discretion by providing the jury with an adverse inference instruction as a sanction for the spoliation of evidence where it found that UP willfully destroyed relevant evidence, which otherwise naturally would have been introduced at trial. Second, we hold that the trial court did not abuse its discretion by repeating the adverse inference instruction because the trial court addressed appropriate objections and articulated the reasoning for its decision; nor did the trial court abuse its discretion by interrupting the crossexamination because it acted to remedy prejudice and as a result did not depart from the required impartiality so as to deny the defendant a fair trial."

The law in Tennessee on this issue is scarce; this opinion is a good place to start to convince a trial judge that an adverse inference instruction is warranted.


Discovery Order

I was talking with some lawyers lately about an increasing problem of discovery abuse, particularly during depositions. Apparently some lawyers don't understand the rules or, if they do, they don't care about them.

Here is an interesting Order entered in a case that put the hammer down on a lawyer who the Court determined had not acted appropriately during depositions. Download file

Do you have any Orders you would like to share? Trial judges need to know that other trial judges have taken aggressive action to stop what they have determined to be inappropriate conduct and the best way to demonstrate that is a copy of an order. If you have such orders, fax or email them to me and I will post them so that other lawyers may utilize them.


Delay in Obtaining Expert Results in Dismissal of Case

The Supreme Court of Mississippi has granted summary judgment in favor of a physician when the plaintiff failed to timely respond to discovery seeking information about plaintiff's expert witnesses and did not timely file an expert affidavit opposing the summary judgment motion.

Plaintiff maintained that she was entitled to more time to get an affidavit from an expert.

From the opinion: "In his final judgment, the trial judge denied Stallworth's request for a continuance and granted the Doctors' summary judgment motion based on Stallworth's failure to substantiate the claims of medical negligence. The trial judge based his decision on the fact that in June of 2004, the Doctors served Stallworth with interrogatories to identify a medical expert, and Stallworth never filed sworn answers to those interrogatories. Instead, Stallworth served unsigned and unsworn interrogatory answers by facsimile and mail subsequent to the filings on summary judgment. The trial judge also based his decision on the fact that Stallworth acquired records of her condition and had notice of a possible claim as early as March of 2002, and retained counsel in April of 2002. The trial court also stated Stallworth's attorney's affidavit filed on October 22, 2004, was not compliant with the rules requesting the supplementation of the answers to the interrogatories and did not excuse Stallworth from having an expert to support her claim. Based on these facts, we cannot say the trial judge abused his discretion when he denied Stallworth's request for an additional thirty days to obtain a medical expert's affidavit. Rule 56(f) is not designed to protect litigants who are lazy or dilatory. We find Stallworth had ample time to locate a medical expert to assist with her claim. Therefore, we find the trial court's grant of summary judgment to the Doctors was proper." [Citations omitted.]

The case is Stallworth v. Sanford; read the opinion here.

Discovery of Expert Witness Materials

To what extent may a party discover communications between an oppsoing party and its expert witness? The Supreme Court of Rhode Island recently addressed this issue in Crowe Countryside Realty Associates Co., LLC v. Novare Engineering Co. (For some reason I cannot get a good link to the opinion so you will have to track it down on the Rhode Island Supreme Court website, Westlaw or Lexis.)

Here is a handy summary of the 19-page opinion: "Without the ability to protect their own conclusions and theories from discovery, attorneys may not be able to fully and confidently prepare expert witnesses for their clients' trials. Permitting full disclosure
of everything revealed to expert witnesses might hamper the trial preparation process because attorneys would be reluctant to reveal their mental impressions, legal theories, trial tactics, and strategies to testifying experts. In our opinion, it is the disclosure of just such information that Rule 26(b)(3)'s dictation of the work-product privilege was intended to prevent. ... We therefore hold that the clear language in the second sentence of subdivision (b)(3) requires that a court protect all core or opinion work product of an attorney, whether or not shared with an expert. We believe that this command to courts, that they "shall protect" opinion work product, was intended to apply to all discovery requests of materials prepared in anticipation of litigation because of the admonition's location in the general portion of Rule 26 applying to all discovery. See Rule 26(b)(3)."

The opinion was released February 2, 2006.


Rule 35 Evaluations

One of the plaintiffs in this case (Kelly) was injured in a car wreck and had "soft tissue" injuries. The defense sought and was granted a Rule 35 examination by a doctor of its chosing. The doctor opined that the plaintiff "was magnifying her symptoms and neuropsychological testing/MMPI should be considered to assist in determining the level of symptom magnification."

The defense asked for a neuropsych evaluation and the court granted it over plaintiff's objection. Plaintiffs were permitted an interlocutory appeal.

Rule 35 examinations may be ordered for good cause shown when physical or mental condition has been put in controvery. The plaintiffs argued that the defendant "failed to affirmatively show that [the subject plaintiff] has put her mental condition in controversy and that [the defendant] has good cause for requesting her to undergo neuropsychological testing."

The Court of Appeals noted that "plaintiffs can be ordered to undergo mental examinations where the cases involve, in addition to a claim of emotional distress, one or more of the following: (1) a cause of action for intentional or negligent infliction of emotional distress; (2) an allegation of a specific mental or psychiatric injury or disorder; (3) a claim of unusually severe emotional distress; (4) plaintiff's offer of expert testimony to support a claim of emotional distress; and/or (5) plaintiff's concession that his or her mental condition is in controversy in the meaning of Rule 35."

The defendant argued that plaintiff's claim of emotional injury and the Rule 35 examiner's suggestion that she was a malinger was sufficient to trigger the "in controversy" requirement.

The Court said this: "We fail to see how the [plaintiffs'] Amended Complaint comprising the standard request for pain and suffering and emotional distress in a personal injury claim without more would put Kelly's mental condition in controversy, warranting a compelled neuropsychological examination under T.R. 35. The evidence indicates that the Stuffs do not allege a specific cause of action for emotional distress, nor do they intend to offer expert psychological testimony to address the general emotional component of Kelly's injury. Dr. Nukes' broad conclusion that Kelly is magnifying her symptoms because of the minimal physical and neurologic exam findings was reached after a one-hour exam. We do not find that Dr. Nukes' general conclusion without any specificity or other indications that Kelly has a severe mental disorder raises to a level that puts Kelly's mental condition in controversy."

And this: "Based on the evidence before us, we conclude that a mere routine allegation of damages for emotional distress does not place the party's mental condition in controversy. The plaintiff must assert or defendant must show a mental injury that exceeds the common emotional reaction to an injury or loss. To permit Simmons to compel a mental examination in the instant case because the Stuffs make a garden-variety claim of damages for emotional distress would open the door to involuntary mental examinations in virtually every soft tissue injury case. We do not believe T.R. 35 was intended to authorize sweeping probes into a plaintiff's psychological past merely because she has been injured and makes a claim for emotional distress damages without more. Accordingly, we find that the trial court's decision ordering Kelly to submit to neuropsychological testing to be against the facts and circumstances of the case."

Read the entire opinion here.


Electronic Discovery

Here is an interesting article tilted "Understanding U.S. Electronic Discovery and "Best Practices" Therefore" written by Michael Kaminski. It will give you a good idea of the way major law firms are advising their clients on discovery and retention of electronic evidence.