From the Listserv Edited by Louise A. Lock
Louise A. Lock is a solo practitioner who received her law degree from the University of Baltimore School of Law. Her practice concen- trates in the areas of medical malpractice, drug products liability and personal injury.
Recent postings worth noting: WORK PRODUCT:
From: Nathaniel Fick <
NFICK@neurolaw.com>
I am about to engage in a discovery dispute and would appreciate any memo/ replies, etc. which might help me along the path. In the course of discovery I came up with documents from other cases in- volving the defendant corporation, which the defendant has NOT PRODUCED in discovery. Each time I produce one at a deposition, they yell surprise and foul ... but it is my position that they are the malefactors in FAILING and REFUS- ING to produce these documents. They assert that while my mental impressions, conclusions, opinions, and legal theories may be work product, that all else which I come up with/come across/develop in course of investigation is not work prod- uct and must be produced.
documents obtained from counsel for former corporate employees. thoughts/replies appreciated.
From: Phillips Oshaughnessy <
philosh@worldnet.att.net>
There are cases pro and con on whether the documents themselves are your work product and there are cases that suggest that if your intended use of the documents
Some are Any
is impeachment only that you may be able to object on that basis. I would suggest (beyond research to solidify your course) noting the deposition of the designated witness of the corporation on: (1) how they went about searching for records to produce in response to your request and the thoroughness of their search and on (2) record retention and destruction poli- cies. If they do not have a good explanation, then I think that you can raise the spoliation of evidence issue — which is why they are the bad guys — and maybe mark a few representative documents from your trove that if the witness was telling the truth s/he had to have found if s/he performed a reason- able search — and then ask for explanations. If they are incapable of pro- viding explanations, then make a protective order and/or motion in limine based on this record that you can save for trial identifying all other trove documents so as to demonstrate to the jury the spo- liation of evidence by the corporation.
From: Stephen J. Hughes <
shughes@popehughes.com>
Isn’t it analogous to surveillance evi- dence in a PI case? You have uncovered, through your own efforts, evidence incon- sistent with their discovery responses. You may have to produce it ultimately, but as with the surveillance video, I think you’re entitled to depose them and “lock them in” without producing the materials first.
From: Mark Binstock
<
mbinstock@paleyrothman.com> Isn’t it also possible that some of what
you may have come up with is rebuttal evidence which is not necessarily discov- erable? Also does the 0other side have “clean hands” in failing to provide discov- ery that you requested?
From: Andrew Freeman <
adf@browngold.com>
Sorry to disagree, but my initial reac- tion is that, if the documents are responsive to the defendant’s document requests, you must produce them. There is no right to withhold responsive “rebut- tal” documents from document production (you may be confusing this with documents required to be identified or produced for the pretrial conference, which excludes documents to be used solely for impeachment, Rule 3-504(8)). However, if the defendant should have produced these documents in response to your document requests, you may want to move for sanctions against them. The court should both require the defendant to conduct a more diligent search and sanction them for not having done so the first time. Ina recent reported opinion, Poole v. Textron, 192 F.R.D. 494, my partner Dana McKee and I obtained $37,000 in sanctions against both Textron and their attorneys at Goodell, DeVries for failing to produce numerous docu- ments. We, too, first learned of some of the documents from a plaintiffs’ lawyer in another case. We produced what we obtained, but moved to compel additional responsive documents and for sanctions. While I thought that Magistrate Judge Gauvey should have entered judgment for liability in light of the extent of Textron’s hide-the-ball tactics (and the fact that it was sanctioned last year for similar tactics in Pennsylvania), instead she awarded us our fees for tracking down the documents and moving to compel.
30 Trial Reporter Fall 2000
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