Litigation and Procedure

1. Litigation and Procedure Discovery: Document Production and Control, Medical Exams, Admissions, and Compelling Discovery

2. Purposes of Production • To make evidence available to both sides • To prevent surprise at trial • To locate evidence damaging to opponent that supports theories of requesting party

3. Scope of Production • Writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium • Tangible things which constitute or contain matter within the same scope as other discovery devices [FRCP 26(b)] • Access to land or other property within the possession or control of a party

4. Discovery Rules Governing Production

5. Procedure for Requesting Production • Initial Steps • Decide what to request • Determine what resources will be necessary to handle and analyze the requested information • Arrange for time, place, and manner of inspection and copying requested information • Draft the Request for Production and Inspection (Exhibit 9:1) • Serve the Request for Production and Inspection • Assist at the Production, Examination, or Inspection • Analyze the Documents Produced by the Opponent

6. Preparing for Production • Initial Steps (pages 358-60) • Locate Documents/Computer Data • Pull Files and Documents and Log (Exhibit 9:3) • Screen Pulled Files and Documents (Exhibit 9:4) • Use a Standardized Numbering System (pages 364-5) • Have the Attorney Review the Documents • Extract Privileged Documents • Have Documents Copied • Prepare Documents for Examination • Retrieve the Documents • Return the Documents and Retain Indices Key Term: Redaction The process of editing out irrelevant or privileged information from the text of a document.

7. Procedure for Production • Initial Steps – Outline: • What documents or information responsive to the request have been located • Any objection(s) to the request and reasons for objection(s) • The form(s) in which the information is to be produced • Any differences or concerns to be negotiated with the opponent • The process for delivering the information, etc. • Draft the Response to the Request for Production and Inspection (Exhibit 9:1) • Assist at the Production, Examination, or Inspection

8. Discovery Rules Governing Medical Exams

9. Procedure for RequestingPhysical and Mental Examination • Set up the Exam • Contact the Physician to discuss purpose of exam and method of payment • Schedule an appointment and provide information to examinee • Draft the Motion for Compulsory Physical Examination, if required (Exhibit 9:6) • If Client is subject to Exam, provide proper notification (Exhibit 9:7)

10. Reviewing and InterpretingMedical Records • Resources for medical terminology and abbreviations • Physician’s Desk Reference • Paralegal Medical Records Review • Mini-Guide for Interpreting Medical Records (Appendix D)

11. Discovery Rules Governing Admissions

12. Procedure for RequestedAdmission(s) • Prepare the Request for Admission • Checklist (Page 378) • Form of Request (Exhibit 9:8 – Federal Form 25) • Procedure (Page 377) • If Client is subject to requested to provide admission(s), note procedure (Pages 379-80) and prepare response (Exhibit 9:9)

13. Compelling DiscoveryMotions, Orders and Sanctions • Objections to Discovery and Remedies (Page 381) • Motions to Compel • Form of Motion (Exhibit 9:10) • Affidavit in Support of Motion (Exhibit 9:11) • Orders and Sanctions (Page 382)

14. Rules Governing Compelling Discovery

15. Rules Governing Compelling Discovery (cont’d)

16. The Freedom of Information Act(FOIA) • Authority: 5 U.S.C. § 552. • Scope: Applies only to government agencies and officials. • Advantages: • Not necessary to file an action • Prerequisite of relevancy doesn’t apply • Access available to anyone with bona fide request • Not restricted to information from a party • Procedure and Limits (Pages 386-7) • Form of Request (Exhibit 9:13)

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

18. Litigation and Procedure Trial Preparation and Trial: Demonstrative Evidence

19. Definition of Demonstrative Evidence A depiction or representation of something, such as a photo of a scar or a diagram of the accident scene.

20. Purpose of Demonstrative Evidence Studies have shown that: • Jurors retain only 10% of what they hear, but that… • Jurors retain as much as 87% of what they see!

21. Purpose of Demonstrative Evidence(cont’d) In other words… A picture is worth a thousand words.

22. Models and Diagrams Charts, Graphs and Timetables Photographs, Slides, and Replicas In-court Demonstrations and Simulations, Animations, and Videos Forms of Demonstrative Evidence

23. Evidentiary Concerns Demonstrative Evidence must clear three Foundational Requirements… • Authentication [FRE 901] • Representational Accuracy • Identification

24. Evidentiary Concerns (cont’d) Demonstrative Evidence must then pass three hurdles of admissibility… • Relevancy [FRE 402] • Materiality • Competency

25. Evidentiary Concerns (cont’d) Demonstrative evidence must then pass a final balancing test [FRE 403] under relevancy… to determine whether the prejudicial value of the evidence outweighs its probative value. NOT “shock-and-awe”

26. Technology for Demonstrative Evidence • 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

27. Demonstrative Evidence Questions?

28. Assignment • 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.