25 \s ir Discoverame? 82.20 Six Degrees of Discoverability Degree | Type of Evidence | Generic Description Chances for Standard Discovery 1% | Real Evidence & | The “raw” or “operative” | Countonitt | Information i Defined ttems of | facts, including the actual discoverable Documentary physical parts or components} Near absolute- | immediately Evidence | of the incident, accident or | Absent some controversy; the so-called | privilege “ros gestae elements.” 2+ | Witnesses (Both | Tnformation on all witnesses | Witnesses are | Information mast be Lay and Expert] | who may testify at trial, lay | discoverable. I's [disclosed by pre-ial Who May Testify {and Expert. Expert witnesses| only amatter of | conference. are requited to provide | “when” not “if.” extensive information about themselves and their opinions 3* | Ordinary Work investigative epors; witness] Chances are more| Info NOT Product | statements; information and | likely than most | discoverable absent data generated in people would | {i] Substantial Need anticipation of litigation. | anticipate + [il] Undue Hardship * ‘Advisory | Information developed or | Unlikely Info NOT Assistance acquired by experts, discoverable absent assistants or attomeys (who exceptional will not testify), in circumstances anticipation of litigation; demonstrative evidence that won't be used at trial. $+ | Opinion Work | Personal notes, research, | Unlikely absent | Info NOT Product | opinions, theories, strategic | crime-fraud | discoverable absent memos and attorney advice. | exception ‘extraordinary circumstances 6 | Unwritten Work | information contained in the |Snowball’s chance] Info NOT Product memory of an attorney. | in Needies,CA | discoverable * Within Degrees 1 through 5 fall a host of privileges with varying degrees of strength (see Chapter 15). Rew. 1, 9/08)§2.21 Gusmaus Discovery 26 In answering the “Is it admissible?” question, we need to select a classification scheme for the “it.” Physical attributes tellus little unless they are used to determine the type of evidence involved. Three Smith & Wesson revolvers, for example, may look, smell and feel identical. But their respective degrees of dis- coverability could vary wildly depending upon factors ‘orally unrelated to their physical attibutes. The type of evidence involved may tell us something about dis- coverability, but then again, it may tell us nothing. The source of the subject information, however, tells us a great deal as the chart indicates. Such a scheme, based on this source, also gives us some pre- dictability about the likelihood of its discovery.!4 §2.21 Degree I: Immediately Discoverable Smashed Automobiles “Towels and Scalpels Left in Patients Guus, Knives, Chains, Dogs, Whips & Dips Flight Recorders, 911 Tapes DNA Samples, Blood Samples & Other Icky stutt Any Tangible Teins, Once a“ Controversy Relevant Business Records Degree 1 covers materials that are highly dis- coverable. In fact, the term “absolutely discoverable” would not overstate the case for its production. The source of such evidence is the incident, accident or Uuansaetion itself. I is physical, or “tangible,” to be ” of the ‘sure, but the correct terminology to describe these items is “real evidence.” ‘Think of reaching into the murder scene and plucking the knife, gun or poison that was actually used to commit the crime. Or the bumper of the ‘wounded automobile that was involved in a rear end, callision. These are buta few of the infinite number of ‘examples of real evidence, Real Evidence might be thought of as part or piece of the subject controversy.!$ ‘The actual knife that stabbed the vietim or the twisted automobile that drove through the plaintiff's bedroom, not models, prototypes, photos or perfect copies (these latter items would be considered as “demonstrative.”) Only the actual components consti- tute real evidence. In certain instances involving orig- inal, questioned, or one-of-a-kind writings, documen- tary evidence might share some of the characteristics of real evidence and thereby likewise fall within the scope of Degree | discoverability.'6 Business Records Business records are among the most common form of admissible evidence. If they are relevant and unprivileged, they should be discoverable.'6! The records can assume virtually any physical type or form.!62 Although they are commonly referred to as “Records kept in the ordinary course of business,” the federal rules employ the term “Records of a regularly conducted activity:"!63 In addition to the traditional balance sheets, memos, letters, and invoices, the con- cept also includes accident reports'*+ and medical records."65 4 you may notice from the chart net ie “ype of evidence” imlved is defintely relevant o fe inquiry, although itis not quit 3s doterminativa as the source, "5 See inta, §2:30 18 Soe nia, §14.1 "8-'Se0 generally, Chapter 7 (Notices For Progucton). 18.2s00 generally, Chastor3 with respect to alacronie media, 8:3 Aue 803(0) of he Federal Rules of Cid! Procedure. '5.4Gonerally such roporte are matters of public record and, thorafore, inthe abeance of a piviogs, aru claary dcoverabe if not edmissbe, 18.5Htedical records may ba subject tothe Physician - Patent Privlaga: sae §18.11(0). Ince Fort Worth Children’s Hosptat, 100 S.W.34 582 (Tax App. 2003). The courts ater requiring a hospital defending a iabity ‘ult to tum over the names of nongarty patents and their admission forms to a guardian ad litam did rot vila‘ the pats’ Tight to privacy, whore the order required the guaran to keep the information coniidental. continued on 2727 Is fr Discovenaate? §2.22 ‘The actual keeper or custodian of the evidence is irrelevant for discovery purposes. Handing it to an attomey does not shield otherwise discoverable evi- dence, Let's assume’ for argument’s sake that the money, time and resources of one of the party's attor- ‘neys were used to collect an item of real evidence. A Work Product argument might be made in support of a claim for expense-sharing; this claim, however, would not detract from the overall discoverability of the item. Even if such an item arguably fell within the scope of the Docirine, it would also fall within the exception created by the dual requirement: substantial need (real evidence is generally always relevant and therefore always “needed”) and undue hardship (impossible” hardship would be easy to establish since all weal evidence is one of a kind). Claims of the Plaintiffs (the specifics) Defenses of the Defendants (ihe specifics) The same high degree of discoverability is shared by the claims and defenses ofthe parties and the under- lying presumptions upon which those claims and defenses are based. Sometimes the claims and defenses ‘age grossly mislabeled as “theories,” which causes them to be confused with items that are almost at the oppo- site end of the discoverability spectrum.!” The claims and defenses of the parties are always subject to discov- cry; 80 too are the underlying suppositions upon which they are based. Legal theories, on the other hand, con- stitute Work product and are not discoverable. Often the need to probe into the claims and defenses of the parties, by way of discovery, comes fom poor or vague pleadings. A Motion for a More Footnote 16.5 ~ cominued fom 2-6 Definite Statement is a common alternative, Here are some typical questions; each question should be ddeeimed proper in all state and federal jurisdictions: QL. Is Count I of your Complaint ‘based on a conitaet oF a tort? Q2 What duties, if any, do you claim that the Defendant ‘breached? Q3. Upon what facts, writings of evidence do you base your “Third Affirmative Defense? §2.22 Degree 2: Discoverable Identification of Lay Witnesses Who May ‘Testify : ‘The Nature of the Intended Lay Testimony Identification of Expert Witnesses Who May “Testify Expert’s Opinions and Reasoning Expert's Supporting Data Expert's Exhibits to Be Used Expert's Qualifications Expert's List of Publications Expert's Compensation Expert’s Other Cases Degree 2 involves witnesses who may testify during the course of the trial and during a party's case in chief, but not as a rebuttal witness. Also included within this Degree arc exhibits that may be used dur- ing the trial.18 All of the types of evidence listed above are, forall practical purposes. discoverable as Degree 1 items: the difference relates to the time at which the CGrmar v Mount Sat Hospital. 761 N.V.S.2d 609, 305 AD.24 307 (N.VAD. 15! Dept 200%). ina medical malpractice action, a dovoased patents wila' ented to tre patents complate macical records, inciaing bing records rom the datending pryst, Can and hospital Therelore, after the physician and hospital, as defendants, daimod that they dd not possess the matical ard billng records of ine deceased ators. the pebencs wie was erited 1.4 dolled stalemart, mada under cath, by a person vith direct knowledge of the fats (as fo tha stu of tha documonts):in additon, tie defendanis were preciuded, subject to {the wil's option, from using hese rooords at tral if they should happen to appeat, 17 A lawyer's legal treoras ar hight protected trom siscovery as opinion work product (Degrea 5). See infra, §14.31. 18 Seu grace. (hey. 1, 9/08)§2.23 information must be disclosed. OF the listed items, those pertaining to experts are most frequently over~ looked, often with severe consequences. §2.23 Degree 3: Discovery Qualified Private Investigations Investigatory Notes, Memos, Reports, ‘Summaries Witnesses Statements, Reports and Accounts Information Generated in Anticipation of Litigation Degree 3 includes those reports, witness state ments and items of information that are gathered through the efforts, and atthe expense, of a litigant in nicipation of litigation or for use during trial. Such items are generally protected by the Work Product Doctrine as ordinary work product.!9 The protection at Degree 3, however, is far from absolute, for many of the items that fall into this pigeonhole are often ‘one-of-a-kind and, therefore, inaceessible to other par- ties. This inaccessibitity often produces an exception to the Work Product Doctrine*® §2.24 Degree 4: Discovery Unlikely Private Investigators Advisors Legal Assistants Experts Who Will Not Testify ‘The move into Degree 4 causes us to cross over into war zones where materials enjoy a relatively sta~ bile degece of protection from disclosure. That may or Gurrnua Discovery 28 may not be good news depending upon which side of the disclosure fence that you are on. Notice that most of this pigeonhole is occupied by persons who would otherwise subject to discovery if they were planning oon presenting testimony to be used at trial?! As a gen- eral rule, anyone wishing to breach their wall of pro- tection must show exceptional citcumstances.22 §2.25 Degree 5: Not Discoverable ‘Legal Research Letters to Client Attorney Generated Memos, Notes and Reports Degree 5 presents the heart of opinion work product. The Work Product Doctrine was designed with these items in mind. Protection at this level. though not absolute is quite solid, Only extraordinary ‘circumsiances would justify « breach. Such circum stances might arise where there is probable cause 10 believe the litigation itself has little or na factual basis ‘and that itis carried on substantially forthe purpose of furthering a crime or fraud. This uncommon event is commonly known as the erime-fraud exception. §2.26 Degree 6: Never Discoverable Thought Processes of Attorney Attorney's Memory Concerning Strategy and Legal Research, “Never” is, of course, a hazardous word for lawyers t0 use. But the U.S. Supreme Court made it fairly clear that the unwritten opinions or thoughts of Sommer v. Davis, 317 F.34 886 (6th Cit. Torn, 2005}. na patient's medica! malpractce action against seme orthopedie sur ‘goons, tho axcusion af tha patient's mecieal expert lastrnony was warraried as a sarcton for tha patient's faire to, comply ‘ith te citric courts expert dsclocure requrements wibin the requied deaine, The expart was not disclosed until mors tan seven rronths alter fal discosure deadline. in aditon the patients falura to disclose was not an horest mistake, nor ‘id the defendants surgeons have sufficient knowledge of the expert o his opinions; the falure was, therelore, prejudicial. ‘S06 also Fittonour . Gibson, 856 N.W.24 £91 (2000). See aleo $4.12(0). 19 see 514.35, ‘See, for example, Ride 26(0(3) ofthe Federal Aules of Civil Procedure. 21 Those who plan to testy fal into the Degree 2 pigeonhole. ‘See ina, §14.39, See also Pde 28(0}(4)(8) of the Fedoral Puls of Civ Procedure. ‘Soa tne Richard oe Inc. 168 Fs 89 (2nd Git N.Y. 1999) Burton v. Rl. Reynolds Tobacco Ca. 167 FAD. 134 (©. Kan, 1996); Sackonan v Liggatt Group, 929 F Supp. 367 (EDLY. 1098); Searcy v Fighy, 199 8. R358 (Bankr. ED Tox. 1936). a29 an attorney should not be subject to discovery, noting, that such information would be difficult to accurately biain, in any event.2* §2.30 Are Electronic and Digital Information Discoverable? Answer: Yes. It is no different than any other documentary evidence and it’s subject to the same basic rules. If you can describe it, you can get it. But the discovery process is new, uncharted and filled with land mines that you would never expect. We've devot ed.a chapter to this hazardous topic 23 §2.40 What are the Available Discovery Weapons? Answer: There are 6 classic weapons of discov- ery, each thoroughly discussed and analyzed in Part f ‘of this book: 1, Requests For Admissions*6 2 Interrogatories?? 3, Demands For Production®® 4, Demands For Inspection?” 5S. Demands For Physical and Mental 6. Depositions®* a ‘You ave ordered to se Chapter 3, 28 See Charter 5. 27 See Chapter 6. 2 "Request? 29. See Chapter a. 3) Soe Chaptera. St Soe Chapter 10. 3 Soe grease. Is Ir Discoverasue? ‘Sea Chapter 13 considers datenses based on the scope of the discovery §2.60 §2.50 Is There a List of Every Conceivable Defense to any Discovery Demand? Answer: There is now. An attempt has been made to assemble every single conceivable defense that you should ever need with respect to any discov- ery demand. It has been placed in a single form.)2 Part Hof this text is devoted to the “Shields” of discovery. Chapter 12 considers defensive strategy in general. Chapters 13 through 16 “group together” and consid- ct the individual defenses in greater detail:3> 1. Chapter 13 - Defending Discovery's Limits 2. Chapter 14 - Asserting the Work Product Doctrine 3. Chapter 15 - Using Traditional Privileges 4. Chapter 16 - Exposing Burdensome and Abusive Tactics §2.60 When Can My Client Destroy Records? Answer: The destruction of information is tricky business.4 On the one hand, everything ever created or written can be considered as potential evi- dence. On the other hand, no one is expected to main- tain records forever. It is, therefore, reasonable to destroy records after an appropriate period of time has Hickman v. Taylor, 209 U.S. 496, 67 SCL 385,91 LEd. 451 (1947), ‘S20 Chapter 7_In this age of “Kinder. gentler political correctness, you may Becasionally see te term Demand replaced by Chapter 14 deals wit ne Work Product process. Doctrine. Tadional dlonees and priviagos are examined Chaplet 13 ard oppressive and abusive tacies are deat with Chapter 15. ‘Caution. Do not fal to read Chapter 3 pertaining to computorizad information. (ter. 9/08)§2.60 ‘Gueraiia Discovery 2:10 lapsed. Because computer storage is so cheap, how- fever, the cost factor (once 2 major consideration) is sharply reduced for digitized or scanned documents.23 ‘When advising business and corporate clients, always remember that itis important to develop a pol- icy o plan, preferably a written one that provides for the periodic destruction of records. But once the poli- cy is stated, the clients must be reminded that itis important to follow it for all documents. 98 Soe Antony arin “isovery and Spolaten ol Becton Evidence Tal Magazine, December 1998, Page 57. sve: Vou 135, Num