1. Q UINCY COLLEGE Paralegal Studies Program Paralegal Studies Program Litigation and Procedure Discovery: Document Production and Control, Medical Exams, Admissions, and Compelling Discovery 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 make evidence available to both sides To prevent surprise at trial To prevent surprise at trial To locate evidence damaging to opponent that supports theories of requesting party 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 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)] 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 Access to land or other property within the possession or control of a party

4. Discovery Rules Governing Production ActPurpose When Due Rule(s) Request for Production of Documents and Things and Entry to Land To inspect documents (writings, photos, data collections, etc.) and land to gather evidence. Federal: After Parties’ 26(f) Planning Meeting. Mass.: Anytime after filing. FRCP 26(d), 34(a) and (b) MRCP 26(d), 34(a) and (b) Response to Request for Production Within thirty days after service of request. Objection waived if no written responses served. FRCP 34(b) MRCP 34(b)

5. Procedure for Requesting Production 1. Initial Steps Decide what to request Decide what to request Determine what resources will be necessary to handle and analyze the requested information 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 Arrange for time, place, and manner of inspection and copying requested information 2. Draft the Request for Production and Inspection (Exhibit 9:1) 3. Serve the Request for Production and Inspection 4. Assist at the Production, Examination, or Inspection 5. Analyze the Documents Produced by the Opponent

6. Preparing for Production 1. Initial Steps (pages 358-60) 2. Locate Documents/Computer Data 3. Pull Files and Documents and Log (Exhibit 9:3) 4. Screen Pulled Files and Documents (Exhibit 9:4) 5. Use a Standardized Numbering System (pages 364-5) 6. Have the Attorney Review the Documents 7. Extract Privileged Documents 8. Have Documents Copied 9. Prepare Documents for Examination 10. Retrieve the Documents 11. 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 1. Initial Steps – Outline: What documents or information responsive to the request have been located What documents or information responsive to the request have been located Any objection(s) to the request and reasons for objection(s) Any objection(s) to the request and reasons for objection(s) The form(s) in which the information is to be produced The form(s) in which the information is to be produced Any differences or concerns to be negotiated with the opponent Any differences or concerns to be negotiated with the opponent The process for delivering the information, etc. The process for delivering the information, etc. 2. Draft the Response to the Request for Production and Inspection (Exhibit 9:1) 3. Assist at the Production, Examination, or Inspection

8. Discovery Rules Governing Medical Exams ActPurpose When Due Rule(s) Motion for Order to Submit to Physical or Mental Exam To require a party to submit to exam when condition in question (injury, emotional distress, other) relates to cause of action or damages. Federal: After Parties’ 26(f) Planning Meeting. Mass.: Anytime after filing. FRCP 26(d), 35(a) MRCP 26(d), 35(a)

9. Procedure for Requesting Physical and Mental Examination 1. Set up the Exam Contact the Physician to discuss purpose of exam and method of payment Contact the Physician to discuss purpose of exam and method of payment Schedule an appointment and provide information to examinee Schedule an appointment and provide information to examinee 2. Draft the Motion for Compulsory Physical Examination, if required (Exhibit 9:6) 3. If Client is subject to Exam, provide proper notification (Exhibit 9:7)

10. Reviewing and Interpreting Medical Records 1. Resources for medical terminology and abbreviations Physician ’ s Desk Reference Physician ’ s Desk Reference Paralegal Medical Records Review Paralegal Medical Records Review 2. Mini-Guide for Interpreting Medical Records (Appendix D)

11. Discovery Rules Governing Admissions ActPurpose When Due Rule(s) Request for Admission(s) To get opponent to admit to certain facts so they do not have to be proven at trial by separate evidence. Federal: After Parties’ 26(f) Planning Meeting. Mass.: Anytime after filing. FRCP 36(a) MRCP 36(a) Answer or Objection to Request for Admission(s) Within thirty days after service of request. FRCP 34(b) MRCP 34(b)

12. Procedure for Requested Admission(s) 1. Prepare the Request for Admission Checklist (Page 378) Checklist (Page 378) Form of Request (Exhibit 9:8 – Federal Form 25) Form of Request (Exhibit 9:8 – Federal Form 25) 2. Procedure (Page 377) 3. If Client is subject to requested to provide admission(s), note procedure (Pages 379-80) and prepare response (Exhibit 9:9)

13. Compelling Discovery Motions, Orders and Sanctions Objections to Discovery and Remedies (Page 381) Objections to Discovery and Remedies (Page 381) Motions to Compel 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 ActPurpose When Due Rule(s) Motion to Compel Discovery To get court to order party to provide discovery. On reasonable notice to all parties and all persons affected and after attempt to resolve. FRCP 37(a) and (d) MRCP 37(a) and (d) Motion for Protective Order To get order permitting party to not respond to certain aspects of discovery or to prevent abuse of discovery by opponent. In reasonable period of time and after attempt to resolve. FRCP 26(c) MRCP 26(c)

15. Rules Governing Compelling Discovery (cont’d) ActPurpose When Due Rule(s) Motion to Enforce Subpoena To require person to appear and/or produce documents for examination. Any time after objection to subpoena is made and upon notice to person commanded to produce. FRCP 45(c)(2)(B) MRCP 37(a) Objection to Subpoena for Production and Inspection To change or stop the enforcement of subpoena. Before time for compliance with subpoena or within 14 days after service of subpoena. FRCP 45(c)(2)(B) MRCP 26(c)

16. The Freedom of Information Act (FOIA) Authority: 5 U.S.C. § 552. Authority: 5 U.S.C. § 552. Scope: Applies only to government agencies and officials. Scope: Applies only to government agencies and officials. Advantages: 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 of Discovery: Document Production and Control, Medical Exams, Admissions, and Compelling Discovery

18. Q UINCY COLLEGE Paralegal Studies Program Paralegal Studies Program Litigation and Procedure Trial Preparation and Trial: Demonstrative Evidence Litigation and Procedure Trial Preparation and Trial: Demonstrative Evidence

19. Evidentiary Exhibits Evidentiary exhibits fall into two categories: 1. Real evidence speaks for itself speaks for itself 2. Demonstrative evidence illustrates or helps explain oral testimony illustrates or helps explain oral testimony recreates a thing, event, or experiment recreates a thing, event, or experiment

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

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

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

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

24. Use of Demonstrative Evidence Given that the Rules of Evidence grant the trial lawyer the means by which to state the facts of a case… Demonstrative evidence may be used to educate the finder of facts. Demonstrative evidence may be used to educate the finder of facts. Counsel may employ any number of techniques including use of diagrams, models, simulations, tables, and video in an attempt to persuade. Counsel may employ any number of techniques including use of diagrams, models, simulations, tables, and video in an attempt to persuade. Counsel may offer pretrial motions and briefs in support of their prospective use of demonstrative evidence. Counsel may offer pretrial motions and briefs in support of their prospective use of demonstrative evidence.

25. Evidentiary Concerns Demonstrative Evidence must clear three Foundational Requirements… 1. Authentication [FRE 901] 2. Representational Accuracy 3. Identification

26. Evidentiary Concerns (cont’d) Demonstrative Evidence must then pass three hurdles of admissibility… 1. Relevancy [FRE 402] 2. Materiality 3. Competency

27. 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”

28. 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 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

29. ABA Standards for Demonstrative Evidence Standard 15 – Demonstrative evidence should be viewed by adversaries, and rulings on admissibility should be given well before trial to avoid unnecessary expense of unusable presentations Standard 21 – Presentation materials should be in computer readable format for ease of use Standard 24 – Presentation of properly edited video material should be permitted to focus juror attention, and parties should agree to use the same presentation equipment to preserve courtroom space

30. Demonstrative Evidence Questions?

31. 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.  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.