The Illinois Trial Practice Weblog

Discovery Tip: Using Model Interrogatories to Fend Off Objections to Discovery

In many jurisdictions, you can find court-approved interrogatories, such as model interrogatories for motor vehicle, medical malpractice, and divorce cases approved by the Illinois Supreme Court.

Even if your case doesn't fall under one of the standard categories, you can still use the model interrogatories for drafting your own discovery. Not only does the use of a form make drafting discovery easier, but it will also help you later in fending off objections. The closer your discovery is to a court-approved form, the easier it will be to argue that your opponent's objection is not well-taken.

So powerful is the argument that "the interrogatory my opposing counsel is objecting to is identical to one approved by the courts," that it often makes sense to look at court-approved interrogatories when preparing to argue objections, even if you didn't use the model interrogatories in the first place.

Related posts:

1. "A Tip for Drafting Interrogatories: Less Can Be More."

2. "Sample Interrogatory: Persons with Knowledge."

Experts in Illinois: The Duty to Disclose Begins with an Interrogatory

Question: You represent the plaintiff in a case in which the trial court has entered a scheduling order requiring you to disclose your experts by a certain date. You do so, in addition to sending the other side a report. However, the report fails to include all the expert's opinions. Assuming the defendant never filed a Rule 213 expert interrogatory, what is going to happen to those extra, undisclosed opinions at trial? Will they be excluded, or not?

Answer: In Heriford v. Dawson, the Fourth District Appellate Court ruled that the undisclosed opinions can come in. Reversing the trial court, the Fourth District stated as follows--

[W]e find that an interrogatory is the trigger for a plaintiff’s duty to disclose the nature and extent of her expert’s opinion. The decision of the trial court, to bar evidence of damages without engaging in the application of its discretionary authority and thereafter award a directed verdict in favor of Moore, is in error. We, therefore, reverse the judgment awarded to Moore.

Heriford v. Dawson is also discussed in this month's Trial Briefs, the newsletter of the ISBA's Section on Civil Practice and Procedure. See "'Tactical gamesmanship' and trial practice: Can it be good advocacy?" by Patrick M. Kinally (ISBA section members only). While critical of the Heriford ruling, Kinally calls it "a must read for anyone trying civil cases."

A Litigation Weblog with an Attitude

Stewart Weltman, formerly a partner at Cohen Milstein Hausfeld & Toll P.L.L.C. and now the owner of Weltman Law Firm, has a new weblog: Lean and Mean Litigation Blog.

A representative post is titled "Another Reason Why You Shouldn't Play Games When Producing Documents," and contains this tip--

Don't redact or withhold on relevancy grounds - it is a dangerous metaphysical exercise for experienced trial lawyers and from my experience it is usually performed by young associates who - to say the  least - don't always have a "world" view. So, unless lightening strikes and the information deemed not relevant is information that could be damaging to your client for some reason not related to the case [very unlikely] don't redact on relevancy grounds.

Add it to your RSS reader.

Metadata Update

A number of jurisdictions have issued guidance on the ethics of looking at metadata. These include New York, Florida, Alabama, Arizona, the District of Columbia, Maryland, and Pennsylvania. 

For a summary of the current thinking about metadata, see "Where Do the Footprints of Metadata Lead? Document data mining vexes lawyers and state bar associations," by Marcia Coyle at Law.com.

Links to most of my prior posts on metadata can be found at Legal Underground at the end of the post "New ABA Ethics Opinion on Metadata."

Electronic Discovery: Reading Up on the Federal Rules

Here are some quick links about electronic discovery and the federal rules, collected from a couple of Google searches while I tried to answer a somewhat-unrelated question--

• For those who want to refresh their recollection of the '06 amendments to the federal rules: "Quick Guide to Electronic Discovery Rules"
• For those who want a second concise guide: "E-Discovery Amendments to the Federal Rules"
• For those who want an up-to-date collection of links to state-law versions of e-discovery rules: "Current Listing of States That Have Enacted E-Discovery Rules"
• For e-discovery junkies who want a book length treatment of the federal amendments: "The Discovery Revolution: A Guide to the E-Discovery Amendments to the Federal Rules of Civil Procedure"
• For e-discovery junkies with short attention spans who'd prefer a pocket-size guide: "E-Discovery and the Federal Rules of Civil Procedure: A Pocket Guide"
• For anyone whose particular research focus is emails and recent rulings under the new federal rules: "The New Federal Rules of Civil Procedure: IT Obligations for Emails" (pdf)

Of course, while all of these links are interesting and useful, there's no substitute for actually reading the rules. Remember: do it early, and do it often!

E-Discovery Myths: How Many Typed Pages Per Gigabyte?

If you spend any time doing electronic discovery, chances are you'll soon be arguing about "page equivalency" -- that is, how many pages of data can one assume is in a gigabyte of electronic storage. The matter comes up frequently when parties argue about the probable cost of e-discovery. Here's how e-discovery commentator Craig Ball describes such an argument:

Your Honor, Megacorp's employees each have 80 gigabyte laptops. That means we will have to review 40 million pages per machine. Converting those pages to TIF images will cost Megacorp $4 million per laptop.

The quote is from Ball's article, "Expert Explodes Page Equivalency Myth," from Law.com. According to Ball, page-equivalency claims are certain to be wrong unless one considers the type of data that is being stored: e-mails, spreadsheets, word-processing documents, photos, and so on. Here's Ball again:

Now, with more e-discovery miles in the rear-view mirror, it's clear we've got to look at individual file types and quantities to gauge page equivalency, and there is no reliable rule of thumb geared to how many files of each type a typical user stores. It varies by industry, by user and even by the life span of the media and the evolution of particular applications. A reliable page equivalency must be expressed with reference to both the quantity and form of the data, e.g., "a gigabyte of single page TIF images of 8-1/2-inch x 11- inch documents scanned at 300 dots per inch equals approximately 18,000 pages."

If you're going to argue with co-counsel or a court about e-discovery--which will happen in situations when there's no expert there to rely upon--you're going to have to know the jargon. Add Ball's article to your growing file of research materials . . . which, hopefully, is growing.

Deposition Tip: Ask About Your Request for Production of Documents

When the witness might have participated in a search for documents about a case, it makes sense during the deposition to ask the witness questions about your request for production of documents. This suggestion works for two types of witnesses: (a) the witness who is the opposing party in the case, e.g., the plaintiff or defendant and (b) the witness who works for the opposing party in the case, e.g., the marketing supervisor for the defendant ladder manufacturer in a products liability case.

The questioning is simple. Bring your production request to the deposition, mark it, and  go through the various requests with the witness. Ask questions like the following--

• Did the witness assist in the search for documents?
• Who was in charge of the search?
• What was the witness asked to do?
• What did the witness do to insure he located all relevant documents?
• What documents did he locate?
• What did he do with the documents?
• Does the witness know of relevant documents that weren't produced?
• Does he know of areas that should have been searched that weren't?

The goal of this exercise is obvious: to find out whether a proper search was conducted and to insure that nothing was withheld. If you didn't get everything, you can follow up as necessary after the deposition, unless the missing documents are critical to the deposition, in which case the deposition might have to be postponed.

Sample Interrogatories: Truck-Accident Cases

From the Trial Lawyer Resource Center: "Trucking Interrogatories."

It's a pretty comprehensive set of interrogatories for the first round of written discovery in a plaintiff's case.

Online Resources for Learning about E-Discovery

The following are several good e-discovery resources from Robert Ambrogi's article, "Discovering E-Discovery" (free registration required)--

• The Sedona ConferenceLegal Electronic Document Institute

• The Electronic Discovery Institute

• Socha Consulting

• The Electronic Discovery Reference Model

• EDDix

• Law.com's Legal Discovery Center

• Craig Ball's website

• LLRX.com

Read Ambrogi's article for a description of these sites, plus a few more hints. Meanwhile, the listed sources contain a wealth of information for understanding e-discovery and keeping up on the latest trends and court rulings.

Using Emails in Support of Summary Judgment or at Trial

Emails present special evidentiary problems when used in support of summary judgment or at trial. The problems presented--and the answers, too--are the topic of "Authenticating E-Mail Discovery as Evidence," by Beatrice O'Donnell And Thomas A. Lincoln. For any lawyer who deals with emails in discovery, it's well worth reading. Here are a few points:

• To authenticate an email, you must prove it is genuine. This must be done not only to make an email admissible at trial, but also in order to use an email in support of a motion for summary judgment.
• In federal court, some emails are self-authenticating under 902(7).
• If not, you'll need to use stipulations or requests for admissions to authenticate the email; failing that, you can find a witness who can authenticate the email.
• A second evidentiary hurdle is hearsay.
• If the email is an admission by a party-opponent, it's not hearsay.
• When the opposing party is a corporation, emails by lower-level employees might not be admissions. "In order for the e-mail to qualify as a party admission, the author needs not only to be acting in the scope of his or her employment but also to have the proper authority."
• Emails might fit within the business-record exception to the hearsay rule, but this might be difficult if the email is merely "chatter, statements that are made casually and not as a matter of obligation or even routine."
• In many courts, you will have to face the issue of authentication and hearsay with respect to each separate email in an email chain or thread.

There are more tips in the article. Thanks for the link to Celia Elwell, a paralegal in Oklahoma City.

Related post: "Electronic Discovery: Think About Admissibility Well in Advance of Trial."