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.
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.’"
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.
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:
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.
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.
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.
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.
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:
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.
Day on Torts