Articles Posted in Discovery

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

To access the list,  click here.

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?

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.

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.

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.]

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:

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).

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. "